Smith v. Snodgrass

• Decision Date: 08 January 1923
• Docket Number: No. 14565.,14565.
• Citation: 246 S.W. 968
• Parties: SMITH v. SNODGRASS.
• Court: Missouri Court of Appeals

246 S.W. 968

SMITH v. SNODGRASS.

No. 14565.

Kansas City Court of Appeals. Missouri.

January 8, 1923.

Appeal from Circuit Court, Livingston County; Arch B. Davis, Judge.

"Not to be officially published."

Action by Marley Smith against E. E. Snodgrass. From a judgment for plaintiff, defendant appeals. Affirmed.

C. W. McAllister, of Tripplett, and Davis & Ashby, of Chillicothe, for appellant.

Nolan M. Chapman, L. A. Chapman, and Don Chapman, all of Chillicothe, for respondent.

BLAND, J.

This is an action upon a promissory note. Defendant in his answer pleaded failure of consideration of the note, and by way of counterclaim asked judgment against the plaintiff in the sum of $2,000, the amount paid by him to plaintiff under the terms of a contract made between the parties at the time the note was given, electing to rescind the contract because it was breached by plaintiff. A jury was waived and the case tried before the court, resulting in a judgment in favor of the defendant on plaintiff's cause of action, and in favor of defendant and against plaintiff on the counterclaim. Plaintiff has appealed.

Counsel have not been able to agree upon the facts, but as plaintiff's only point is that the court erred in rendering the judgment, if there are any facts in the record to support the judgment, it must be affirmed. So we must take all of the evidence and all reasonable inferences that may be drawn therefrom in the most favorable light to defendant.

The facts show that one a W. Sowers was the owner in fee simple of a farm situated in Livingston county, Mo. On July 19, 1919, Sowers entered into a contract of sale of the farm to one Hartley. By the terms of the contract Hartley was to pay Sowers $17,000 for the land; $1,000 of the purchase price was to be paid as earnest money on the signing of the contract, and the balance was to be paid by the assumption by Hartley of a note in the sum of $5,000 secured by deed of trust on the land, $6,000 was to be paid in cash on or before March 1, 1920, and a note given by Hartley to Sowers in the sum of $5,000, to be secured by a deed of trust on the land, to become due on March 1, 1925, at 6 per cent. interest from March 1, 1920. Sowers agreed to execute a deed to the farm and place the same in escrow with the Citizens' Bank of Avalon on or before the 15th day of August, 1919. This deed was to be delivered to Hartley on the payment at the bank of the balance of the purchase price. An abstract showing good title was to be delivered by Sowers to Hartley not later than the 1st day of September, 1910. Possession of the farm was to be given on the 1st day of March, 1920.

On July 23, 1919, Hartley entered into a contract with plaintiff, wherein he agreed to sell the same farm to plaintiff for the price and sum of $17,320, $1,320 of which sum under the terms of the contract was paid as earnest money upon the signing of the agreement. The balance of the purchase price was to be paid by the assumption of the $5,000 note secured by the deed of trust on the land, $6,000 to be paid in cash on or before March 1, 1920, and a note in the sum of $5,000, secured by a deed of trust upon the farm, to become due March 1, 1925, at 6 per cent. interest from March 1, 1920. On or before the 20th day of August, 1919, Hartley was to execute and deliver a warranty deed to the farm to the Citizens' Bank of Avalon, to be held by it in escrow, to be delivered to plaintiff upon the payment of the balance of the purchase price at the bank. An abstract showing good title was to be delivered by Hartley to plaintiff not later than September 20, 1919. Possession of the premises was to be given on or before the 1st day of March, 1920. The contract between Hartley and plaintiff was in substantially the same terms as the one between Sowers and Hartley, except as to the parties, the purchase price, the amount of earnest money to be paid, the date of delivery of the deed to the bank, and the time for delivery of the abstract. However, no mention is made in the contract between Hartley and plaintiff of the contract between Hartley and Sowers.

On August 11, 1919, plaintiff entered into a contract with defendant to sell the latter the farm. This contract recites:

"That for and in consideration of the covenants and agreements hereinafter contained the said party of the first part hereby sells and agrees to convey to said party of the second part or his assigns the following described premises situated in Livingston county, Missouri: * * *—for the sum of $20,000, to be paid as follows: Two thousand dollars earnest money on execution and delivery of these presents, the receipt of which is hereby acknowledged; the balance to be paid as follows: Two thousand dollars to be paid on or before March 1, 1920, the same payment to be made in the form of a maturity note executed by the party of the second part in favor of the party of the first part. In consideration of the above agreements and payments the said Murley Smith, party of the first part, relinquishes all claims on above-described real estate, and all further payments on said real estate are to be made as per contract made and entered into by and between C. W. Sowers and T. J. Hartley, which contracts are held in escrow by the Citizens' Bank of Avalon, Missouri."

Sowers did not deliver a deed to the Citizens' Bank at the time required by his contract with Hartley, and neither Hartley nor plaintiff at any time executed a deed to the property. Upon the execution of the contract between plaintiff and defendant, the latter paid the $2,000 earnest money provided in the contract and gave plaintiff the note sued upon, in the sum of $2,000, payable March 1, 1920. No abstract of title was delivered by Sowers to Hartley, and none by Hartley to plaintiff, and none by plaintiff to defendant. Defendant was required to raise $8,000 in cash by March 1, 1920, and in September or October, 1910, desiring to negotiate a loan upon the land to meet the cash payments due on said date, had an officer of the bank make application for a loan to a laud company and procured the abstract for that purpose, but he failed to get the loan. Sowers not having placed the deed in escrow with the bank on the 15th day of August, defendant in September asked him to deliver the deed to the bank, and Sowers replied that he would. March 1, 1920, fell upon Monday, and on the Friday preceding defendant called upon Sowers. Defendant testified that at that time he had made arrangements to get the money to close the transaction, and he asked Sowers for a deed, and told him that he was ready to take the place. Sowers replied:

"He had no right to give me a deed; that he didn't sell me the place. He had no dealings with me." "He wouldn't give me a deed."

Defendant further testified that on March 1, 1920, he went to the bank, and asked an officer of the bank if plaintiff was there with the deed. Evidently by that time defendant had given up hope of getting a deed from Sowers. At that time defendant had made arrangements to pay the $8,000 he was required to pay on that day, $6,000 to be paid on the farm in cash, and $2,000 to take up the note that he had executed at the time he entered into the contract with plaintiff, which fell due upon that day. However, he did not have the money with him. There is testimony on the part of plaintiff, given by the bank officer, that on the 1st day of March, 1920, or a few days prior thereto, Sowers delivered to the bank a warranty deed to the farm, made out to Hartley. Sowers testified that, after the interview between defendant and Sowers, Sowers received a letter from Hartley, who lived in another county, stating that the deed should be made out to defendant. On behalf of plaintiff the officer of the bank testified that Sowers instructed him to erase Hartley's name in the deed and to insert the name of defendant. However, this witness did not remember as to when the deed from Sowers was delivered at the bank, but thought it was on March 1st, or a few days prior thereto. The officer of the bank had instructions from Hartley to close the deal in his behalf with Sowers and defendant. Hartley testified that he executed the note and deed of trust in the sum of $5,000, that was required under his contract with Sowers, and sent the same to the bank, together with a certified check in the sum of $6,000, with which to close the deal with Sowers on March 1, 1920, in case defendant did not take the land on that day. These papers were in the bank two or three days before March 1st.

The officer of the bank testified that defendant came in the bank after the close of the business day if March 1, 1920, and stated that he could not make the necessary financial arrangements to close the deal, saying that he was not going to be able to close up the matter. The officer of the bank said to defendant that lie disliked to see him lose the money the latter had in it, and offered to try to make some financial arrangement to save defendant. Defendant-replied to the effect that he was going to drop the whole matter. The officer of the bank reminded defendant of the $2,000 note that had been left with the bank for collection, being the note sued upon, and defendant replied that he would pay it, but that he would have to be given some time for that purpose. He further testified that at that time he had in his possession a deed from Sowers to the land in question, and that he told defendant of this fact. He further testified that he had authority to fill in defendant's name in the deed; that he would have delivered the deed to defendant on that day, if defendant had paid the $6,000 due under the Sowers-Hartley contract; and that he would have put defendant's name in the deed as...