Tracy v. Aldrich

• Decision Date: 19 December 1921
• Docket Number: No. 22166.,22166.
• Parties: TRACY v. ALDRICH.
• Court: Missouri Supreme Court

236 S.W. 347

TRACY v. ALDRICH.

No. 22166.

Supreme Court of Missouri, Division No. 1.

December 19, 1921.

Appeal from Circuit Court, Jasper County; Grant Emerson, Judge.

Action by L. L. Tracy against Mrs. J. E. Aldrich. Judgment for plaintiff, and defendant appeals. Affirmed.

A. R. Dunn, of Neosho, for appellant

O. R. Puckett, of Pineville, and R. A. Pearson, of Joplin, for respondent.

BROWN, C.

Ejectment to recover about 127½ acres of land according to the government survey in McDonald county. The petition, filed July 17, 1919, is conventional. The ouster is laid as of April 21, 1919, the damages at $500, and the monthly rents and profits at $50.

The answer contains a general denial, and pleads a written agreement dated December 2, 1918, signed by one C. W. Hodgetts, then the owner in fee, to sell said land to defendant, and that under said agreement said Hodgetts put defendant in possession, and received from her as a part of the purchase price the sum of $165, and made, at great expense to herself, valuable and lasting improvements on the premises, and asks specific performance. It also states that said contract was, on the day after its execution, duly recorded, and that the plaintiff purchased, if at all, with actual notice thereof. The answer is of considerable length, and its averments will be further noticed as necessary.

The plaintiff demurred on the following grounds:

(1) That it "does not state facts sufficient to constitute a defense," and (2) "that the contract pleaded is void upon its face as being a unilateral contract and also under the statute of frauds, and is not a sufficient nor binding contract thereunder."

The court overruled the demurrer, and plaintiff filed his reply as follows:

"Now comes plaintiff, and for reply to defendant's amended answer denies each and every allegation of new matter therein contained.

"For further reply plaintiff states that defendant is estopped to maintain the defense in the new matter in said answer contained, for that heretofore, on March 15, 1919, said defendant filed her action in the circuit court of McDonald county, Mo., which action is still pending, for the recovery of damages in the sum of $1,950 for alleged breach of the contract set up in this answer, which she asks here to be specifically enforced; that the positions of defendant are inconsistent and repugnant, and by her declaration of her remedy in damages as aforesaid she is so estopped to maintain said defense."

The contract mentioned in and filed with the defendant's answer is as follows:

"In consideration of $1.00 in hand paid, the receipt of which is hereby acknowledged, I hereby agree to deposit at once a deed to my 165½-acre farm near Coy, Mo., which I purchased from J. E. Aldrich and wife. Deed to be placed in the State Bank of Anderson for Mrs. J. E. Aldrich and upon sale of the farm by B. S. Dunn or Mrs. Aldrich I agree to accept the money back that I have paid on said land, amount being between $1,900 and $2,000, and Bank of Anderson shall deliver deed to Mrs. Aldrich or order and deliver my money to me. Mrs. Aldrich to care for the farm till sold and protect both our interests. Sale on farm to be pushed, so that all interested parties may get their money at earliest possible date."

It was sworn to by the parties and duly filed and recorded.

The court, after hearing the evidence, rendered judgment for the plaintiff for the possession of the premises, with damages for the taking and detention thereof in the amount of $110, and assessed the value of the monthly rents and profits at $30 per month, together with the costs. At the hearing it was agreed that C. W. Hodgetts and wife, by deed dated April 21, 1919, conveyed the land in controversy to plaintiff; that defendant, Mrs. Aldrich, in February, 1919, said to a prospective tenant that Hodgetts turned the farm back to her to have until she and Dunn could sell it; also that when plaintiff purchased the place he knew there was a contract between Mrs. Aldrich and Hodgetts under which she had possession.

Mrs. Aldrich testified that she had lived for eight years on this farm; that Hodgetts purchased it in April, 1918, holding it until December 2d, following, when he entered into an arrangement—here she was interrupted by an objection from plaintiff that the agreement was in writing and would show for itself, which was sustained and exception duly taken. Also objection was sustained to her statement that there was an understanding between them that she should buy the place, to which exceptions were also duly saved. The offer was then formally made as follows:

"We desire to offer the testimony of this witness to the effect that, at the time this written contract was entered into, it was the understanding and agreement between the defendant and said C. W. Hodgetts that she was to purchase the land in question in this suit and the deed was to be placed by C. W. Hodgetts in the State Bank of Anderson, and to be delivered to her upon the payment of the sum of $1,950; that she paid the sum of $165 on said agreed purchase price to the said C. W. Hodgetts, and immediately moved upon the premises and proceeded to occupy and take full possession from the date of the contract up to the time of the bringing of this suit, claiming the title to said land and making valuable improvements, with full knowledge of this plaintiff.

"The Court: As to the consideration, if she is trying to contradict the consideration stated in there, no one is contradicting her consideration here.

"Mr. Pearson: Her consideration was a consideration for the granting of the option and not for the purchase consideration of the land.

"The Court: I think parol evidence is admissible to show what property was intended. Of course, as to the terms of the contract— what was meant by the contract—the contract speaks for itself and parol evidence is not admissible to vary or contradict it.

"Mr. Dunn: Except."

She also testified without objection that she was to make final payment for the land in January, 1920, and was ready to carry out the terms of her contract; that the reason she did not pay him at the time was that he did not deposit the deed in the bank as he agreed to; that she already had $165 of her money invested, which she paid him on December 3d in cash, at his request, to be applied on the contract.

When asked on her cross-examination about her suit filed March 15, 1919, against Hodgetts for damages for breach of this same contract by failure to deposit the deed In the State Bank of Anderson according to Its terms, the defendant objected on the ground of irrelevancy, which objection was overruled by the court, and defendant excepted. The record was thereupon introduced by the plaintiff showing that such a suit was brought and was still pending. Exceptions were duly taken.

Mr. Dunn, a real estate agent, testified that he was called out on the farm to help Mrs. Aldrich out in the purchase of it. When he got there he found Hodgetts, who told him he had sent for Mrs. Aldrich and wanted to discuss the proposition of turning the place to her. He had already stated that they were going to abandon it, to turn it to her if they could agree. His wife refused to sign any papers, and Hodgetts said they would go into town and he would induce her to sign. Witness then drew up the little memorandum, hoping it would induce her to sign the papers to help him to get back what he had in the property. Mrs. Aldrich was to be the purchaser and return to him the money he actually had in it. Hodgetts said he wanted some money to get back home, and it was agreed that she would pay him $165 which she did. It was agreed that she should take the place as her own, to do as she pleased, and pay for it by January, 1920. Dunn put his own name in the agreement to get a commission for handling it for Mrs. Aldrich.

1. The parties have materially lightened our labors in this case by avoiding any controversy as to the facts in evidence, and going directly to the questions suggested by the record. Hodgetts did not testify, nor did he take any part in the trial.

The suit is in ejectment by plaintiff, who holds the legal title with notice, thus standing in the shoes of Hodgetts, against the defendant, who answers that she is in possession under a contract of purchase from the plaintiff's grantor, of which she asks specific performance. The plaintiff replies to this with the plea of the statutes of frauds, requiring some note or memorandum in writing signed by the person to be charged upon such a contract. The contract is before us, and respondent asks the court to determine whether it fills that statutory requirement, making no denial of the truth of the testimony offered or introduced by defendant, but simply objecting to its admissibility.

We have held in a leading case (Kelly v. Thuey, 143 Mo. 422, 45 S. W. 300), reviewing our previous somewhat contradictory expressions on that subject, that—

"The memorandum being required to be complete in and of itself, parol evidence cannot be admitted to piece out the incomplete writing and make it a complete instrument."

We also held that—

In such contract "there are three essential and inevitably necessary ingredients: First, the parties; second, the subject-matter; third, the consideration or price. Absent any one of these ingredients, there is no contract."

We also quoted with approval from a distinguished author:

"`In all contracts of sale, assignment, and the like, the price is, of course, a maternal term. It must either be fixed by the agreement itself, or means must be therein provided for ascertaining it with certainty. In the absence of such provision, either stating it or furnishing a mode for fixing it, the agreement would be plainly incomplete, and could not be enforced; that if the contract is written, this term must appear in the memorandum or written instrument.' Pomeroy's Spec. Perf. (2d. Ed.) § 148."

Following this...