Strange v. Crowley
| Decision Date | 20 December 1886 |
| Citation | 2 S.W. 421,91 Mo. 287 |
| Parties | Strange, Plaintiff in Error, v. Crowley |
| Court | Missouri Supreme Court |
Error to Johnson Circuit Court. -- Hon. Noah M. Givan, Judge.
Affirmed.
S. P Sparks for plaintiff in error.
(1) The witness, Carradus, was incompetent to testify to contents of Strange's letter, in reply to Crowley's of November 2, 1882; he did not possess the necessary qualifications; he had never seen Strange write, nor had he seen specimens of his hand-writing, and, afterwards, personally communicated with him respecting it. Reyburn v. Belloti, 10 Mo 597; State v. Scott, 45 Mo. 302; State v Clinton, 67 Mo. 380; State v. Stair, 87 Mo. 268; Abbot's Trial Evid. [Ed. 1881] pp. 394, 395; 1 Greenl. on Evid. [Ed. 1866] secs. 477-8; 2 Starkie on Evid. [Ed. 1832] 651, et seq. (a) Where a witness has no personal knowledge of hand-writing, and can only testify by comparison of hand-writing in question with genuine signature, it is held inadmissible. O'Connor v. Layton, 2 Am. Law Reg. [O. S.] 120; Titford v. Knott, 2 Johns. Ch. 211; Rogers v. Ritter, 12 Wall. 317; Strother v. Lucas, 6 Pet. 763. (b) Such is the rule when the genuineness of the exemplar is undisputed, a fortiori as in the case at bar, when the witness was wholly devoid of any personal knowledge as to the genuineness of the letter whose contents he seeks to establish, but dependent entirely on what others tell him. (c) Again, his testimony shows that whatever knowledge or information he had of the hand-writing of Strange was acquired to enable him to become a witness in this case; for this reason he was incompetent, and his testimony inadmissible. Abbot's Trial Evid. 395; 1 Whar. Evid., sec. 707. (d) And still again, the letter attached as an exhibit to Crowley's deposition was not a writing already in evidence, and not put in, and could not be used by Carradus on which to base a comparison with the letter which was lost, and whose contents were sought to be established. State v. Clinton, supra; 1 Greenl. Evid., sec. 578; Abbot's Trial Evid. 396. (e) The answers to questions numbered three, four, five, six, and seven, were hearsay, being nothing more than what Crowley told him; they were improperly admitted. 1 Greenl. Evid., secs. 98, 99. (f) Exclude the testimony of Carradus, which is on the vital point in the case, and the finding and decree is clearly against the weight of the evidence. (2) The letter of Strange's, replying to Crowley's of November 2, 1882, was an unconditional acceptance, and was not rendered nugatory by the immaterial addition, in which a hope or desire was expressed that he would only charge him six per cent. 1 Benj. on Sales [last Am. Ed.] p. 55, note. (3) The refusal of a vendor's wife to join in a deed to release her inchoate right of dower, will present no obstruction against a decree for specific performance. Story's Eq. Jur., sec. 793s; 5 Cent. Law Jour. 22; 49 Pa. St. 88; Davis v. Parker, 14 Allen, 94; 1 Sugden on Vend. p. 479, sec. 8, note q. (a) A purchaser in such case is entitled to specific performance, as far as the vendor can perform it, and to have an abatement out of the purchase money, or compensation for any deficiency in the title, quantity, quality, description, or other matters touching the estate. Story's Eq. Jur., sec. 779; Water v. Travis, 8 Johns. 465; Ketchum v. Stout, 20 Ohio 453. (4) The testimony of Strange and Crowley shows that Strange continued in possession after the termination of his lease. The continuance of a possession taken, originally, under a contract which has expired, should be regarded as much a part performance as the taking possession under the contract, when substantial improvements are subsequently made on faith of the contract. 1 Story's Eq. Jur., 763a. (5) But Strange's testimony that the deed of trust given by him to Crowley, to secure his performance of covenants in the lease, which expired March 1, 1883, was satisfied after that time; that Crowley put him in possession of the premises; that he refused longer to rent it of Crowley, is, certainly, of great weight in determining the contention that the finding and decree was against the uncontradicted testimony in the case. Thompson v. Henry, 85 Mo. 451.
Smith, Silver & Brown and E. A. Nickerson for defendant in error.
(1) The onus of establishing, by clear and satisfactory evidence, the contract mentioned in plaintiff's petition, is cast upon him. Taylor v. Williams, 45 Mo. 80; 2 Story's Eq., sec. 742; Collins v. Thompson, 2 Wheat. 336. (2) The proposition contained in the defendant's letter of November 2, 1882, and the lost responsive letter thereto, did not constitute a contract, the specific performance of which a court of equity would decree. These writings, when taken together, must alone evidence the contract, and parol evidence was not admissible to make out the contract. The lost letter did not contain an unequivocal, unambiguous, unconditional acceptance, without variance of any sort between it and the proposal. Pomeroy on Cont., sec. 63; Fry on Spec. Perf., secs. 169, 170, 172. (3) The minds of the plaintiff and the defendant did not actually meet as to the matter of the deferred payments of interest, defendant proposing seven per cent., the plaintiff offering six per cent. Pomeroy on Cont., secs. 58, 63. The renewal interest provision in the proposition was an essential part of said supposed contract, which rendered the same impracticable and placed it beyond the jurisdiction of a court of equity to enforce. Huff v. Shepherd, 58 Mo. 242. The supposed contract was incomplete, as to time; the making of the renewal notes, and the interest the same should bear, was to be transacted in the future. It could not be enforced for this reason. Pomeroy on Spec. Perf., sec. 143. (4) The letters, upon which so much stress is laid, which were received after the date of the proposal letter and the lost letter of acceptance, do not support the contract theory. The offer of defendant having once been declined by plaintiff, he (plaintiff) cannot, by any subsequent assent, ratify the original offer of defendant. Fry on Spec. Perf., p. 138, note. The record discloses such contradictions and conflicts in the evidence as must raise a doubt as to the entire contract, and as to some of its material terms; and in such case the chancellor will not grant the remedy, although partial performance of something has been sufficiently proved. Pomeroy on Cont., sec. 136; Foster v. Hale, 3 Vesey, 712; Allen v. Webb, 64 Ill. 342; Wright v. Wright, 31 Mich. 380; Mernterm v. Bayless, 33 Cal. 129; Purcell v. Minor, 4 Wall. 513. (5) The chancellor was, presumably, acquainted with all the witnesses who testified in the case, and his finding therein ought to be deferred to by this court. Snell v. Harrison, 83 Mo. 651; Sharp v. McPike, 62 Mo. 300; Hodges v. Black, 76 Mo. 537; Royle v. Jones, 78 Mo. 403.
Plaintiff brought his bill in equity to enforce the specific performance of an alleged contract for the sale of certain land in Johnson county, which the trial court refused to decree, and rendered judgment for the defendant, and it is this action of the court that we are asked to review on writ of error.
On the trial, in support of the claim for relief sought by the petition, plaintiff put in evidence, among other letters, the following:
Plaintiff then testified, in his own behalf, and stated that in six or eight days after the receipt of the above letter he replied to it as follows:
"Mr. Crowley, I think you ought not to charge more than six per cent., as you know I am paying you more for your land than any one else would give, but if you won't do that I will take your land at your offer -- pay you two thousand dollars when the lease is out, and balance at seven per cent. in twelve months."
He also testified that he showed this letter to Mr. Taylor at Holden, Missouri, who read it, handed it back and said, that is just enough; he then directed it; that he was not certain where it was sent, as he (Crowley) was going about all the time. Plaintiff also testified to receiving several letters from defendant after sending the above letter, the first of which is dated in Texas, December 9, 1882. This letter does not refer, in any way, to his having received a reply from plaintiff in answer to the letter of November 2, 1882, but it is said in it: "My wife will not endorse a deed for my land at Holden that I offered you;" that he would do the best he could in that respect.
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