United Brick & Tile Co. v. Ault

• Decision Date: 20 December 1938
• Docket Number: 34379
• Citation: 123 S.W.2d 39,343 Mo. 724
• Parties: United Brick & Tile Company, a Corporation, v. Emma Ault, Executrix of the Estate of A. F. Ault, Appellant
• Court: Missouri Supreme Court

123 S.W.2d 39

343 Mo. 724

United Brick & Tile Company, a Corporation, v. Emma Ault, Executrix of the Estate of A. F. Ault, Appellant

No. 34379

Supreme Court of Missouri

December 20, 1938

Appeal from Jackson Circuit Court; Hon. Brown Harris Judge.

Affirmed.

Watson Ess, Groner, Barnett & Whittaker for appellant.

(1) Defendant was not liable under covenants contained either in the deed or in the contract. Sec. 4609, Compiled Stat. of Okla. 1921; Knight v. Clinkscales, 152 P. 133; Patchell v. Garvin, 66 Okla. 184, 168 P. 423; 15 C J. 1209. (2) Defendant was not liable under the provision of the written contract, because the provisions of the contract were merged in the deed. Employers Indemnity Corp. v. Garrett, 38 S.W.2d 1049; Fulk v. Williams, 37 S.W.2d 511; Barger v. Healy, 276 Mo. 145; Farrant v. Troutman, 141 P. 776; McClelland v. Ehrig, 156 P. 307. (3) If the provisions of the contract concerning the nature of the title to be conveyed, or concerning unpaid taxes, were broader than the covenants of the deed, such broader provisions of the contract were waived by accepting the deed. Minor v. Edwards & Price, 12 Mo. 137; Brownlow v. Wollard, 61 Mo.App. 132; Porter v. Cook, 114 Wis. 60, 89 N.W. 823; Gaylord v. McCoy, 161 N.C. 685, 77 S.E. 959; Schmidt v. Scandanavian-Canadian Land Co., 136 Minn. 14, 161 N.W. 218; Lang v. Hedenberg, 277 Ill. 566, 115 N.E. 566. (4) The questions of liability under either the deed or the contract are governed by the laws of Oklahoma. 12 C. J. 451, sec. 32; Cassidy's Succ., 40 La. Ann. 827, 5 So. 292; Tillotson v. Prichard, 60 Vt. 94, 14 A. 302; 66 C. J. 484; Freeman v. Falconor, 201 F. 785; Dalton v. Taliaferro, 101 Ill.App. 592; Acker v. Priest, 92 Iowa 610, 61 N.W. 235; Breckenridge v. Moore, 42 Ky. 629; Caldwell v. Carrington, 9 Pet. 86; Keeler v. Loy & Co., 49 F.2d 872; Baird Inv. Co. v. Harris, 209 F. 201; Coleman v. Lucksinger, 224 Mo. 14; Fisher v. Parry, 68 Ind. 465; Harlan v. Manington, 152 Iowa 707, 133 N.W. 367; Riley v. Burroughs, 41 Neb. 296, 59 N.W. 929; Dulin v. Sharp, 43 Mo.App. 550; Lyndon Lbr. Co. v. Sawyer, 135 Wis. 525, 116 N.W. 255; Middleton v. Middleton, 172 Ky. 826, 189 S.W. 1133; Crane v. Blackman, 126 Ill.App. 631. (5) Defendant was not liable because of anything said when the contract was signed or when the deed was delivered, because parol evidence is inadmissible to show prior or contemporaneous oral agreements different from those contained in the written contract. Hall v. Small, 178 Mo. 629; Egger v. Egger, 225 Mo. 116; Koob v. Ousley, 240 S.W. 102; Elliott v. Winn, 305 Mo. 105; Boyd v. Paul, 125 Mo. 9. (6) Plaintiff having declared upon a written contract, could not recover upon a modification thereof or an interpretation thereof by the parties, which modification or interpretation was not pleaded. Koons v. St. Louis Car Co., 203 Mo. 227; Whitelock v. Beach, 174 Mo.App. 428; Ingwerson v. C. & A. Ry. Co., 205 Mo. 328; Pugsley v. Lumber Co., 162 Mo.App. 360; Henning v. U.S. Ins. Co., 47 Mo. 425. (7) The petition did not declare upon an oral contract, and therefore recovery could not be had on such a contract. Dougherty v. Matthews, 35 Mo. 520; Browning v. Walbrun, 45 Mo. 477; Central Trust Co. v. Colorado Ry. L. & P. Co., 200 F. 85; 13 C. J. 753, sec. 915; Ingwerson v. C. & A. Ry. Co., 205 Mo. 328.

Flavel Robertson and Arthur N. Adams for respondent.

(1) Defendant was liable both under the covenants contained in the contract and in the deed. Blyeth v. Campbell, 115 Okla. 227, 242 P. 770; Amer. Law Institute's Restatement of Law of Conflict of Laws, p. 417, sec. 341; Patchell v. Garvin, 66 Okla. 184, 168 P. 423. (2) The provisions of the contract were not merged in the deed. Lehman v. Paxton, 7 Pa. S.Ct. 259; White v. Murray, 218 F. 933; Saye v. Truslow, 88 N.Y. 243; Gill, Mo. Titles (3 Ed.), sec. 440; Hospes v. Almstedt, 83 Mo. 473; 40 C. J. 650; Van Hee v. Rickman, 220 P. 143, 109 Ore. 357. (3) There can be no waiver of a defect without knowledge of the defect and an intention to waive it. Howe Scale Co. v. Geller, Ward & Hasner Hardware Co., 285 S.W. 141; State ex rel. v. Trimble, 310 Mo. 446, 276 S.W. 1020; Scheer v. Trust Co. of St. Louis, 330 Mo. 149, 49 S.W.2d 135. (4) The contract and the personal covenants in the deed are governed by the laws of Missouri, the place of the making of the contract and delivery of the deed. Sec. 3020, R. S. 1929; Kellogg v. Malin, 62 Mo. 429; Blondeau v. Sheridan, 81 Mo. 545; Luther v. Brown, 132 Mo. 70; Winningham v. Pennock, 36 Mo.App. 688; Crosby v. Evans, 281 Mo. 202, 195 S.W. 514; Roleson v. Grand Lodge Brotherhood of Railroad Trainmen, 229 Mo.App. 772, 84 S.W.2d 651; Amer. Law Institute's Restatement of Law of Conflict of Laws, Sec. 340-341; Selover v. Walsh, 226 U.S. 112, 57 L.Ed. 146; Liljedahl v. Glassgow, 180 N.W. 870; Brewster Law of Conveyancing, p. 258; Bethell v. Bethell, 54 Ind. 428; Jackson v. Green, 112 Ind. 342; Worley v. Hineman, 33 N.E. 260; 4 Page, Contracts, sec. 2155, p. 3775; Hunter v. Hunter, 327 Mo. 817, 39 S.W.2d 359; Carter v. Burns, 332 Mo. 1128, 61 S.W.2d 933.

Westhues, C. Cooley and Bohling, CC., concur.

OPINION

WESTHUES

This case comes to the writer on reassignment. It is an appeal from a judgment entered against appellant and in favor of respondent, United Brick & Tile Company, in the sum of $ 8,997.50. Plaintiff's cause of action was based on a contract for the sale of real estate situated in the State of Oklahoma and a deed made pursuant to that contract. The contract was entered into between the United Clay Products Corporation, as the buyer, and A. F. Ault, K. T. Hagler and W. R. Ritchie, as the sellers. These latter three were made defendants, but no service of process was had upon Hagler and Ritchie. The case was dismissed as to them. A. F. Ault died pending the appeal and the cause was revived against Emma Ault, the executrix of the estate. The respondent, United Brick & Tile Company, a corporation acquired all the rights of the United Clay Products Corporation.

The United Brick & Tile Company, respondent, will be referred to herein as the plaintiff. It was alleged that plaintiff purchased property from Ault, Hagler and Ritchie for which it paid $ 425,000. It was later discovered that there was an unpaid special assessment for street improvements against the property in the sum of $ 6,300 and interest thereon. The deed executed by the sellers was a general warranty deed, and would have been, except for a statute of Oklahoma, sufficient to hold the defendant liable for the unpaid tax assessment. The statute of the State of Oklahoma, section 4609, statute of 1921, Chapter 29, Article 12, provides that unmatured installments of special assessments shall not be deemed to be within the terms of any general covenant or warranty. The assessment in this case was to have been paid in ten annual installments. Defendant had paid one of such installments and the others were not due at the time the deed was delivered. Appellant contends that the law of Oklahoma must govern in this case. This was pleaded in the answer. Plaintiff contends that the contract and deed were executed in Missouri and therefore the Missouri law must control the situation. Plaintiff also contends that even under the law of Oklahoma defendant was bound to pay the special tax. The trial court took this view of the case and in a well considered and learned opinion held that plaintiff was, under its contract and deed, entitled to recover the amount of the lien existing against the property at the time the deed was delivered to it. The contract of sale contained the following provision:

"And it is understood and agreed that the deeds, bills of sale and other instruments necessary or desired to vest full and complete title in the party of the second part shall be executed and delivered to said second party at the office of the Tulsa Vitrified Brick & Tile Company, at Tulsa, Oklahoma, on January 15, 1926, and that payment therefor as above outlined shall be made at the same time and place by bank draft or certified check, and that time is of the essence hereof. . . .

"It is further mutually understood and agreed that all taxes which are liens on the property shall have been paid at the date of the conveyance by said first parties, and, further, that all policies of insurance covering said property or any thereof shall be proportional so that the purchasers shall pay the portion of said policy premiums that are unearned at said time.

"It is further agreed that abstracts indicating the state of the title to said properties shall be prepared by said first parties and furnished to said second party or its representatives on or before the 15th day of December, 1925." It may be noted here that the abstract furnished by the sellers did not make any mention of the unpaid assessment against the property. The deed delivered to the plaintiff contained the following clause:

"TO HAVE AND TO HOLD, said described premises unto the said party of the second part, -- heirs and assigns forever, free, clear and discharged of and from all former grants, taxes, judgments, mortgages and other liens and incumbrances of whatsoever nature."

We are of the opinion that the trial court correctly held that under the laws of the State of Oklahoma the defendant was liable for the unpaid special assessment. The cases of that state hold that a general covenant in a warranty deed does not cover unmatured special assessments because of the statutory provision above mentioned. [See Knight v Clinkscales, 51 Okla. 508, 152 P. 133.] But the Supreme Court of that state has also held that the parties to a contract of sale may agree that the seller shall pay such assessments, and when such an agreement is made the purchaser may recover the amount of the...