Swanson v. Spencer

• Decision Date: 02 February 1914
• Citation: 163 S.W. 285,177 Mo.App. 124
• Parties: JOHN SWANSON, Appellant, v. L. E. SPENCER, Respondent
• Court: Kansas Court of Appeals

163 S.W. 285

177 Mo.App. 124

JOHN SWANSON, Appellant, v. L. E. SPENCER, Respondent

Court of Appeals of Missouri, Kansas City

February 2, 1914

Appeal from Jackson Circuit Court.--Hon. Frank G. Johnson, Judge.

AFFIRMED.

Judgment affirmed.

Jamison Hutchison & Ostergard for appellent.

Metcalf Brady & Sherman for respondent.

OPINION

JOHNSON, J.

On August 31, 1911, plaintiff entered into a written contract with Thomas D. Sipple for the purchase of certain real estate in Kansas City at the price of $ 4450, and on that date paid $ 250 on the purchase price to defendant, who was the agent of Sipple. There were two mortgages on the property amounting, with interest, to about $ 4000, and the sale was made subject to them. There were also due and unpaid city taxes amounting to thirteen dollars, and a special tax bill of $ 347.60 for street paving had been issued three days before the date of the contract. The total amount of all these liens was $ 4333.30.

The sale was consummated by the delivery of a deed executed by Sipple conveying the fee simple title to plaintiff subject to the mortgages. Before this was done plaintiff paid the taxes including the special tax bill and when he and defendant met to close the sale he claimed the contract made it the duty of Sipple to pay all of these taxes and that in paying them he had overpaid the purchase price in the sum of $ 133.30. He demanded reimbursement from defendant out of the down payment of $ 250 which he regarded as a deposit defendant was holding as trustee. Defendant refused the demand and this suit was brought by plaintiff in a justice court to recover the amount of the alleged overpayment. A jury was waived in the circuit court and after hearing the evidence introduced by plaintiff (defendant offered none) the court rendered judgment for defendant and plaintiff appealed.

The pivotal question is whether or not the contract imposed the duty on Sipple to pay the special tax bill. If it did plaintiff would be sustained in his contention that he paid $ 133.30 in excess of the purchase price. If it did not he has failed to pay the purchase price in full and could have no cause of action against defendant.

The solution of this question depends on the interpretation of a clause in the contract which, following provisions for the delivery and examination of an abstract of title, provided that if "it is found that the seller has a good title in fee to the property he agrees upon the receipt of the remainder of the full consideration as hereinbefore set forth to deliver to the buyer or order, a good and sufficient deed thereto, duly executed, conveying good title to the property, free and clear of all taxes and encumbrances whatsoever now thereupon except all taxes not now due and payable."

Plaintiff contends the special tax bill was "now due and payable" on the date of the contract which, as stated, was three days after the tax bill was issued. Defendant's position is that it was not due and payable at that time and, therefore, should not be included with the obligations the contract required his principal to discharge.

At the trial the court announced that the parties had agreed "that the tax bill in question was issued or bears the date of issue of August 28, 1911, and was in four annual installments--the first installment payable June 30, 1912; and if the first installment was not paid at that time, then all the tax bills became due and collectible, and bore interest from the date of issue; that it was payable at any time after the date of issue, but its payment was not enforceable. Now, as to the payment of it--it was payable from the date of the issue--at any time after the date of the issue, but its payment was not enforceable until there had been a default in the payment of an installment."

Plaintiff was permitted to testify to facts which tend to show that at the time of the consummation of the sale, defendant acquiesced in his interpretation of the contract and the rule is invoked that "where the language used by the parties to the contract is indefinite or ambiguous and hence of doubtful construction, the practical interpretation by the parties themselves is entitled to great, if not controlling influence." [Chicago v. Sheldon, 9 Wall. 50, 54; Austin v. Shipman, 160 Mo.App. 206, 141 S.W. 425; Leschen v. Mayflower, 173 F. 855; Fitzgerald v. Bank, 114 F. 474; Donovan v. Boeck, 217 Mo. 70, 116 S.W. 543.]

We think this rule is without present application for two reasons, viz., first: There is no ambiguity or uncertainty in the language of the contract, which clearly evinces that the phrase "due and payable" so...