Thomas J. Baird Inv. Co. v. Harris

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Citation209 F. 291
Docket Number3,875.
Decision Date08 November 1913

209 F. 291


No. 3,875.

United States Court of Appeals, Eighth Circuit.

November 8, 1913

[209 F. 292]

Plaintiff in error brought this suit below to recover damages laid at $11,076.95 for breach of contract for the sale to defendant in error of certain real estate located in Nelson county, N.D.

The petition declared upon a contract consisting of a writing called an 'earnest money contract of sale,' dated October 11, 1908, supplemented by oral agreements alleged to have been subsequently ratified and recognized in writing by the defendant personally and through his duly authorized agent and attorney. The original written contract is attached to the petition as 'Exhibit A,' and is as follows:

'Earnest Money Contract of Sale
'Deer Creek, Okla. 10-11, 1908.
'Received of D. W. Harris of Deer Creek, Okla., cash $500. Note $1000. Due Nov. 11, 1908. Total $1,500. As earnest money and in part payment for the purchase of the following described property situated in the county of Nelson and state of North Dakota, viz.:
'All of section 21, the north half of section 28, the east half of section 20 and the southeast quarter of section 17, all in township one hundred and fifty-one, north of range 57 west, which we have this day sold and agreed to convey according to the conditions of this contract to said D. W. Harris for the sum of forty-three thousand and two hundred dollars ($43,200) on terms as follows, viz.:
"Five hundred dollars ($500) in hand paid as above, and

$1,000 Nov. 11, 1908 $2,140 Jany. 1, 1912

$3,500 Dec. 11, 1908 $2,140 Jany. 1, 1913

$4,000 Jany. 11, 1909 $2,140 Jany. 1, 1914

$2,140 Jany. 1, 1910 Real Estate, $8,000

$2,140 Jany. 1, 1911 Fixtures, $1,000

Estimate Dis. $1,000

with interest on deferred payments at 6 per cent. from date until paid, payable Jany. 1, annually, payable on or before the dates as named above, or as soon thereafter as a warranty deed conveying a good title to said land is tendered, time being considered the essence of this contract.

'And said sale, then D. W. Harris is to deed the following real estate to [209 F. 293] the Thomas J. Baird Investment Co., of Lakota, N.D. The south nine (9) feet of lot 11 and lot 12 and lot 13 and 14 all in block 2 in Deer Creek, Okla., free of incumbrance, D. W. Harris is to receive credit of $8,000, said company is to allow said Harris $1,000 credit for fixtures in said Harris' store.

'The Thomas J. Baird Investment Company agrees to stand shrinkage not to exceed $1,000 or any part thereof from the cost of said D. W. Harris' stock in closing out same, and allow credit to Harris for amount of said shrinkage.

'And it is agreed that if the title to said premises is not good and cannot be made good within sixty days from date when first payment shall become due, this agreement shall be void, and the above mentioned five hundred dollars ($500) refunded, but if the title to said premises is then good, in the name of the grantor, and said purchaser refuses to accept the same said five hundred dollars ($500) shall be forfeited to Thomas J. Baird Investment Co.

'But it is agreed and understood by all parties to this agreement that said forfeiture shall in no way affect the rights of either party to enforce the specific performance of this contract.

'(Signed) Thomas J. Baird Investment Co.,
'By Thomas J. Baird, Prest.'
'I hereby agree to purchase the said property for the price and upon the terms above mentioned, and also agree to the conditions of forfeiture and all other conditions herein expressed.

D. W. Harris.'

It will be observed that in this writing, of the total consideration of $43,200, but $29,700 is provided for in the specified terms of payment. Concerning matters not contained in this earnest money contract, the petition says:

'The difference in amount between the total purchase price of $43,200 named in said contract, and the several sums specified therein, amounting to said sum of $29,700, was to be paid by the said defendant assuming a mortgage on said premises for the principal sum of $13,500, and which he agreed to pay as a part of the consideration of said transfer of said property to him, and said property was to be conveyed to him subject to said incumbrance of $13,500. That at the time of the making of said contract, the said defendant orally agreed to assume said mortgage of $13,500 as a part of the consideration of the purchase price of said real property above described, and thereafter recognized and ratified said oral agreement in writing, the same being contained in letters written by the said defendant, and by his duly authorized agent and attorney to this plaintiff, copies of which are attached hereto and reference to which will be specifically made herein. * * *
'That it was orally agreed between the said plaintiff and the defendant, and which said oral agreement was thereafter ratified and recognized in writing by the said defendant, through letters written by himself and his duly authorized agent and attorney, and copies of which are hereto attached, and to which reference will be specifically made hereafter, that the deed to the said defendant for the real property described in said contract should not be delivered to the said defendant until said three notes, aforesaid (aggregating $8,500), were paid, and that the proceeds of the payment of the said notes were to be used by the said plaintiff in taking up and satisfying other incumbrances on said real property hereinbefore referred to, other and in addition to the said mortgage of $13,500, and that upon the payment of said notes, and the execution of the five notes, each for $2,140, set out and described in said written contract, and the execution and delivery to the plaintiff by the defendant of a real estate mortgage on the land purchased by him securing the payment of said notes, and the delivery by the defendant to the plaintiff of a deed to the real property situated in the town of Deer Creek in the county of Grant, and the state of Oklahoma, which he was to convey to the plaintiff as a part of the consideration of said contract; that thereupon he was to receive from the plaintiff the deed to the real property situated in the county of Nelson and state of North Dakota purchased by him. * * * [209 F. 294] 'That the written contract between plaintiff and defendant, a copy of which is hereto attached marked 'Exhibit A,' being silent as to the manner of the payment of said sum of $13,500 in addition to the several payments therein specified, and which was the balance of the total purchase price of $43,200, was supplemented by oral agreement between plaintiff and defendant, and by the correspondence had between plaintiff and defendant, and plaintiff and defendant's duly authorized attorney, the said Emery H. Breeden, by the recognition and ratification of the agreement between plaintiff and defendant as contained in said correspondence, and that the complete contract between plaintiff and defendant consisted of said original contract, in writing, and said oral agreement, and said correspondence, all as set forth herein.'

To the petition were annexed, and especially referred to therein as exhibits, in addition to Exhibit A, aforesaid, the following:

Exhibit B: A letter from defendant to Baird, dated October 29, 1908.

Exhibit C: A letter from plaintiff to the First National Bank of Medford, Okl., dated November 16, 1908, containing the earnest money contract aforesaid; the three notes first specified therein for collection; a warranty deed from one Henry L. Pitts, the owner of the lands purchased, to the defendant; the five notes of $2,140 each; and a mortgage securing the same to be executed by the defendant. This letter contained specific directions respecting the disposition of these papers, and acts to be done by the defendant in performance of the contract; it also embraced the following statement:

'These papers are sent you upon the request of Mr. Harris. We extended the due date of the first note to the 20th of this month. Inasmuch as these papers are sent to Oklahoma by the request of Mr. Harris, if there are any expenses attached, he should pay them. In remitting, we would prefer Chicago exchange. Kindly acknowledge these papers and if there is anything about them you do not understand, please write us. We have sent all the abstract to Mr. Harris.'

Exhibit D.: The warranty deed from Pitts and wife to the defendant, to which reference has been made.

Exhibit E: A letter from plaintiff to defendant, of date November 12, 1908.

Exhibit F: A letter from defendant to Baird, of date November 18, 1908.

Exhibit G: A letter to plaintiff from Emery H. Breeden, alleged to be the agent and attorney of defendant, of date November 28, 1908.

Exhibit H: A letter from Breeden to Baird, of date December 4, 1908.

The contents of these exhibits will be referred to hereafter to such extent as may be deemed material.

In his answer the defendant first interposed a general denial to the allegations of the petition. In the course of three further defenses stated in the same answer, he admits the agreement and contract declared by the plaintiff, but charges that he was induced to make the same through certain false and fraudulent representations, upon which he relied, and as the result...

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