Springer v. Kleinsorge

• Decision Date: 31 October 1884
• Citation: 83 Mo. 152
• Parties: SPRINGER et al. v. KLEINSORGE, Appellant.
• Court: Missouri Supreme Court

83 Mo. 152

SPRINGER et al.

v.KLEINSORGE, Appellant.

Supreme Court of Missouri.

October Term, 1884.

Appeal from St. Louis Court of Appeals.

REVERSED.

Zack. J. Mitchell for appellant.

(1) It is submitted respondents were not entitled on the evidence to recover upon their pleadings. The petition avers and seeks to enforce the specific performance of a written contract between them and appellant, whereas none was proven, or shown to have an existence. Appellant's plea of fraud and by-bidding, was not in equity or law controverted or denied by the denial of “each and every material allegation therein [said answer] contained”--hence stood admitted, and appellant was entitled to the decree rendered in his favor by the nisi prius court.

(2) It appears from the transcript in the St. Louis Court of Appeals that respondents only filed their motion for a new trial in the St. Louis county circuit court on the 28th day of August, 1880; and nothing appearing from the records but the dictum of the clerk that said motion was filed within ““four days after decree,” respondent's appeal should have been by said court dismissed. Lanham v. Beal, 4 Mo. App. 566.

(3) The conduct of Thomas Nichols at the sale authorized the finding of the circuit court, and the court of appeals should not have disturbed it. Smith v. Fruin, 77 Mo. 499; Russell v. Berkshoner, 77 Mo. 417; Masters v. Nally, 61 Mo. 202; Pomeroy on Contracts, pp. 54 and 59.

(4) Whilst, as a general proposition, the statute of frauds must be specially pleaded, yet equity will not enforce mere verbal promises in the face of the statute. Pomeroy on Contracts, p. 207.

R. M. Nichols for respondents.

(1) If the reply “denying each and every allegation in said answer contained,” was not a sufficient denial, the objection comes too late in this court. Smith v. City of St. Joseph, 45 Mo. 449; State ex rel. v. Williams, 77 Mo. 469; Howell v. Reynolds County, 51 Mo. 154; Simmons v. Carrier, 68 Mo. 421. (2) The record recites that the motion for rehearing was made “within four days” after rendition of judgment. This should be construed to mean four judicial days--to which the respondent was entitled. Nat. Bank v. Williams, 46 Mo. 17; Daubert v. Rocker, 4 Mo. App. 590; Bank v. Thomas, 2 Mo. App. 367. A motion for rehearing is unnecessary in an equity case. Butler v. Lawson, 72 Mo. 227. (3) There is no evidence to show by-bidding at the sale of lots 2 and 6, or at the sale at all, or that the supposed by-bidder, Nichols, bid upon lots 2 and 6, and the facts that Thomas W. Nichols purchased the first three lots at the sale, and afterwards, on the same day, or same hour, sold two of them for 50 cents per acre less than he paid, cannot certainly establish by-bidding or fraud in the sale of lots 2 and 6 to appellant, when it does not even appear that he bid upon them at all. Nor can the low price testified to by the expert witnesses be any evidence of fraud or by-bidding, though it makes a general average of $26.50, for the reason that the amount the property brings at a public sale is the best known criterion of its value. Harrison v. Town, 17 Mo. 237; Bean v. Valle, 2 Mo. 126; Holmes v. Hesh, 9 Mo. 211. (4) The answer does not set up the statute of frauds, and, therefore, the contract as pleaded is admitted to be sufficient. Gist v. Eubank, 29 Mo. 248; Weldbohn v. Robidoux, 11 Mo. 660; Cozine v. Graham, 1 Paige 182; Gardner v. Armstrong, 31 Mo. 534; Graff v. Foster, 67 Mo. 512. The memorandum in writing was amply sufficient. Wiley v. Robert, 31 Mo. 215; Briggs v. Munchon, 56 Mo. 470. (5) A court of equity will decree specific performance if the vendor is able to make a good title at any time before final decree. Suckett v. Williamson, 37 Mo. 388. (6) If a purchaser does not avail himself of the knowledge of the means of information open to him as to the character and condition of the land, he cannot say that he was misled by representations of the vendor. Story's Equity, § 200, et seq.; McFarland v. Carron, 34 Mo. 196; Langdon v. Green, 49 Mo. 363; Dunn v. White, 63 Mo. 182. (7) An action of specific performance can be maintained by the vendor, and, under a general prayer of relief, the court can give whatever relief is proper. Parris v. Halley, 61 Mo. 453; Ivory v. Murphy, 36 Mo. 541; Story's Equity Juris., § 723, and cases cited; Brown v. Haff, 3 Paige 243; Crary v. Smith, 2 N. Y. 60; Bispham's Equity, § 389; Dalzell v. Crawford, 1 Parsons Select Cases in Equity, 37; Finley v. A'Kin, 1 Grant 83; Kauffman's Appeal,55 Pa. St. 385; Hamilton v. Hamilton, 59 Mo. 232. (8) A court of equity, on appeal, can accord to the party that relief which he should have received at the hands of the trial court. Derrier v. Derrier, 58 Mo. 234; Jones v. Hart, 60 Mo. 351; Ringo v. Richardson, 53 Mo. 397.

PHILIPS, C.

This is an action to recover from the defendant the amount alleged to have been bid by him for certain real estate sold in the name of Nicholas Springer and others at public auction. The answer tendered the general issue, and further pleaded that at said sale false and fraudulent bidders, known as by-bidders, through the connivance of plaintiff's testator, were present, and that false representations were then and there made by vendors, by reason of which defendant was misled into making a bid at said pretended sale.

On a trial before the court, without a jury, the court found the issues for the defendant, and dismissed the petition. From this judgment plaintiffs appealed to the St. Louis court of appeals, where the judgment of the circuit court was reversed. From this last judgment the defendant prosecutes this appeal.

I. The statute of frauds is invoked in argument by the defendant. The court of appeals held that “the statute of frauds is not in the case at all because it is not pleaded.” We cannot assent to this proposition. The petition avers a contract of sale respecting real estate. It is not averred whether the contract is in writing or not. The presumption, however, in such case is, that the contract is such as the law recognizes. If it appeared on the face of the petition that it was not in writing, duly executed, the petition would be demurrable. This fact not so appearing, the defendant, to avail himself of the statute of frauds, must raise the issue by answer. But it is not necessary that the answer should, in so many words, plead the statute eo nomine. “Where the defendant in his answer denies the contract, it is not necessary for him to insist upon the statute as a bar.” Wildbahn v. Robidoux, 11 Mo. 660; Hook v. Turner, 22 Mo. 333-335. It is as fully raised by a gcneral denial “as any other answer could raise it.” Wisnell v. Tefft, 5 Kan. 263; Bliss on Pl., 353; Allen v. Richard, 83 Mo. 55.

On such state of the pleadings the plaintiff, as said by Ryland, J., in Hook v. Turner, supra, “must produce legal evidence of the existence of the agreement, which cannot be established by parol proof.” This logically results from the general denial authorized by the practice act. The general denial puts in issue every fact included within the allegations of the petition, which the plaintiff must prove in order to a recovery. Northrup v. Miss. V. Ins. Co., 47 Mo. 435-444. In the action of replevin and of ejectment, under a general denial, the defendant may show that the claim of plaintiff is fraudulent and bad, and thus avoid the plaintiff's title. Greenway v. James, 34 Mo. 328; Bobb v. Woodward, 42 Mo. 488; 25 Wis. 35-36; 3 Bibb 216. The answer in this case contains, first, a general denial of the allegation of the petition. It is true, it pleads other matters of special defence, but the new matter is in nowise inconsistent, in contemplation of the practice act, with the general denial. They can well exist together in point of fact and law. Nelson v. Brodhack, 44 Mo. 596.

This construction of the pleading in this case is in no wise in conflict with the cases of Gardner v. Armstong, 31 Mo. 535; Rabsuhl v. Lack, 35 Mo. 316; and Graff v. Foster, 67 Mo. 512, cited by the court of appeals in support of its ruling. In the first case cited the court simply holds, that the petition was not demurrable for failing to recite that the contract was in writing. That was matter of defence to be raised by the answer. It does not say that the question would not be well raised, under our present practice act, by the general issue. So in the case in 35 Mo., the answer admitted the indebtedness without pleading the statute. And in Graff v. Foster, an examination will show that the answer did not deny the contract, but merely put in issue the indebtedness. To deny the indebtedness is no denial of the existence of the contract out of which the petition avers the indebtedness arose. Engler v. Bate, 19 Mo. 543.

II. The question next recurs, was the contract in question evidenced by some writing or memorandum sufficient to save it from the operation of the statute of frauds? The memorandum is as follows: “Auction sale of lots in the subdivision of the Wilson farm, Thursday, October 2nd, 1879. Terms:--one-fourth cash; balance in one, two and three years, with six per cent. interest, payable annually and secured by deed of trust on the property, said sale being made for N. Springer and Thomas Boylan.

No. of Lot.

Name of Purchaser.

Price per acre.

Cash Paid.

12.

Thomas W. Nichols,

$41.00

_

7.

Frederick Wm. Kroner,

32.50

$20.00

8.

Herman Henry Engleki,

39.50

20.00

11.

Lewis Vesper,

44.25

20.00

2 & 6.

August Kleinsorge,

30.00

20.00”

The evidence showed that this sale was extensively advertised, fully describing the property, and that the clerk of the auctioneer, under the eye and sanction of the auctioneer, made this memorandum at the time of the sale, inserting the purchasers' names and affixing the name of the auctioneer. Wherein, then, consists the infirmity of this memorandum? The defendant has pointed out in argument no specific objection; but contents himself by assuming that it is bad. The memorandum contains the names of the vendors...