Tucker v. Bartle

• Decision Date: 31 October 1884
• Parties: TUCKER ET AL. v. BARTLE, Plaintiff in Error.
• Court: Missouri Supreme Court

85 Mo. 114

TUCKER ET AL.

v.BARTLE, Plaintiff in Error.

Supreme Court of Missouri.

October Term, 1884.

Error to Moniteau Circuit Court.--HON. E. L. EDWARDS, Judge.

REVERSED.

Smith & Harrison, G. J. Davis and A. W. Anthony for plaintiffs in error.

(1) The court erred in permitting the plaintiffs to introduce any evidence in favor of the devisee, Tucker. The petition should have been first surrendered setting forth his interest. Story's Eq. Pl. (8 Ed.) secs. 379, 354; R. S., sec. 3667. (2) The alleged contract was nudum pactum, and therefore void, for the reason that the defendant promised to make a conveyance, in consideration that Jones would pay his own pre-existing debt. A promise by A to do what he is already bound to do to B, is not a sufficient consideration to support a promise by B to do something in return to A. In other words a promise cannot be conditioned on a promise to do a thing to which the party is already fully bound. Price v. Cannon, 3 Mo. Rep. 453; Willis v. Gammill, 67 Mo. 730; Jackson v. Cabbin, 8 M. & W. 790; Bayley v. Homan, 3 Bing. N. C. 915; Dixon v. Adams, Cro. Eliz. 538. (3) The cumulative promise of Jones to pay the debt which he already owed, a legal obligation to pay already exististing, was a nullity. McManus v. Bk., L. R., 5 Ex. 65; Deacon v. Gridley, 15 C. B. 295; Malleau v. Hodgson, 16 Q. B. 689; Robb v. Mann,11 Pa. St. 300; Gilmore v. Green, 14 Bush. 772. (4) The alleged contract, even if in writing, would not be specifically enforced because the subject matter would be too indefinite. Pomeroy on Contracts, secs. 152, 153, 161; Praler v. Miller, 3 Hawkes 628; Fowler v. Redican, 52 Ill. 405; Carr v. Duval, 14 Peters 77. An executory contract for the purchase of land will not be specifically enforced where the contract is denied in the answer and the evidence shows that it rested entirely in parol. Wildbahn v. Robedaux, 11 Mo. 659; Hook v. Turner, 22 Mo. 333; Sutten v. Shipp, 65 Mo. 297; Story's Eq. Jur., sec. 753. (5) In order to have the court to interpose to compel a conveyance there must be a definite specific agreement to sell and purchase proved. It must have been followed by acts of the parties, which in their nature, form a part performance of such an agreement, and a failure to perform works a fraud upon the party who seeks performance. 3 Washb. on R. P. (4 Ed.) top page 235; Hagar v. Hagar, 71 Mo. 610; Johnson v. McGrunder, 15 Mo. 365; Despain v. Carter, 21 Mo. 331; Young v. Montgomery, 28 Mo. 604. (6) Under the pleadings and facts developed at the trial, it was an abuse of discretion in the circuit court to refuse the defendant leave to file an amended answer setting up the statute of frauds.

Draffen & Williams for defendants in error.

(1) There was no error in the action of the trial court in the substitution of Thomas Tucker as a party plaintiff upon the record as the devisee and successor of Thomas S. Jones, whose death had been suggested. (2) The court did not err in refusing permission to defendant to file an amended answer. Amendments are not permitted where a party is guilty of laches.R. S., sec. 3586; Weed, etc., v. Philbrick, 70 Mo. 646; Simmons v. Carrier, 68 Mo. 416; Stewart v. Glenn, 58 Mo 481. (3) The statute of frauds is not a bar to the relief sought by plaintiffs. Leibka v. Knapp, 79 Mo. 22; Edwards v. Smith, 63 Mo. 119; 1 Greenleaf Ev., sec. 295; 3 Parsons on Contracts (5 Ed.) 4; Agnew on Statute of Frauds, 245; Fry on Specific Performance, sec. 360; Gale v. Nixon, 6 Cowen 448; Waterman on Specific Performance, sec. 231; Heidemann v. Woifstein, 12 Mo. App. 366; Bean v. Valle, 2 Mo. 103; Moore v. Mountcastle, 61 Mo. 424; Beckwith v. Talbot, 95 U. S. 289; Ivory v. Murphy, 36 Mo. 534. (4) The consideration was amply sufficient to uphold the agreement. This was not a resale to Jones of property for which Bartle had paid a valuable consideration, and should not be so treated. Waterman on Specific Performance, 687; Williams v. Jensea, 75 Mo. 681. A compromise of doubtful rights will be upheld and carried into effect. Stephens v. Spiers, 25 Mo. 386; Craus v. Hunter, 28 N. Y. 389; Pitkin v. Noyes, 2 Am. Rep. 218.

HENRY, C. J.

The object of this suit is to enforce the specific performance of an alleged contract by which defendant agreed to convey to Thomas Jones and wife a tract of land in Morgan county, upon which Jones resided. In February, 1875, Jones and wife, reserving to themselves and the survivor a life estate in said land, conveyed it by deed to Bartle, “in consideration (as the deed expresses it) of valuable service rendered and to be rendered by him to them, and the sum of one dollar paid by him to them.” The petition alleges that the defendant procured plaintiffs to make the deed; that it was made to secure moneys advanced and to be advanced to Jones by Bartle, and that afterwards, learning that Bartle claimed to own the land subject to the life estate of plaintiffs, Jones demanded that Bartle should execute a deed releasing any interest he might claim in said land; Jones insisting that he and his wife understood their deed as intended to secure Bartle in such advancements as he had made, and should thereafter make; that the parties met and it was agreed between them that Jones should deliver to Bartle a certain lot of cattle owned by Jones and pay him eight hundred and eighty-seven dollars in cash, the balance, which would remain unpaid, of an indebtedness of Jones to Bartle, and that thereupon the contract in relation to the land should be rescinded. That this agreement was made in October, 1879, and that Jones then delivered the cattle to Bartle and afterwards tendered to him said balance of eight hundred and eighty-seven dollars, and demanded a deed from Bartle, which was refused. After the institution of this suit Jones died, leaving a last will and testament, by which he devised to Thomas Tucker the land in controversy, and he was afterward substituted as plaintiff.

The defendant in his answer denied the agreement alleged, and also that the consideration for the deed made by Jones and wife was that named in the petition, and also that it was made to secure any indebtedness of Jones to Bartle then, or to be contracted. On a hearing, the court rendered a decree as prayed for, and defendant has appealed.

It appears from the evidence that Jones and his wife were old and childless, and that for a number of years prior to the execution of the deed by them to Bartle, he and they were on the most intimate terms, each having a high regard and warm affection for the other. That Bartle had, for many years, been in the habit of advancing large sums of money to Jones, to be used by the latter in his business of buying and selling cattle, and Bartle charged him no interest for its use. That Bartle lived in St. Louis and was engaged in the same business extensively, and handled the stock purchased by Jones in Morgan and adjoining counties, and sold it for him, or when a better market could be found elsewhere, shipped it to that market and gave Jones the benefit of reduced freight rates he had secured for himself on account of the large shipments he was in the habit of making, and for all this he made no charge against Jones. There is abundant evidence proving that Jones not only repeatedly told Bartle, but others, that in return for the many and valuable favors extended to him by Bartle, he intended that, at the death of himself and wife, Bartle should have all his property. There is no allegation in the petition that Bartle by unfair means procured the execution of the deed, and no proof of the allegation made that he procured it at all; on the contrary all the evidence tends to show that it was voluntarily executed by Jones and wife in accomplishment of a purpose long entertained by them and frequently expressed, not only to Bartle, but to others.

After Jones executed the deed in St. Louis, he took it with him to his home in Morgan county, and kept it there until Bartle made him a visit, which was of frequent occurrence, when his wife signed the deed, and it was afterwards filed for record by Jones. This deed was twice read to Mrs. Jones before she signed it, and that she and Jones both well understood its nature and effect is manifest from the evidence. She testified that she knew that the life estate of herself and husband was reserved to them, and that they had the right to live on the farm and use it as long as they lived. In August, 1879, Jones wrote to Bartle, saying: “I would like to see you while we are alive in this world. You will find everything for you on the farm. Six or eight dollars will pay all I owe here.”

It was stipulated in the deed that in the...