Walker v. Owens

• Decision Date: 25 April 1887
• Citation: 25 Mo.App. 587
• Parties: CATHARINE WALKER, Respondent, v. MARIA E. OWENS, ADMINISTRATRIX OF GEORGE W. OWENS, DECEASED, Appellant.
• Court: Kansas Court of Appeals

25 Mo.App. 587

CATHARINE WALKER, Respondent, v. MARIA E. OWENS, ADMINISTRATRIX OF GEORGE W. OWENS, DECEASED, Appellant.

Court of Appeals of Missouri, Kansas City.

April 25, 1887

APPEAL from Clay Circuit Court, HON. JOHN T. CHANDLER, Special Judge.

Affirmed.

The case is sufficiently stated in the opinion of the court.

D. C ALLEN, for the appellant.

I. The amended petition alleges a separate estate in the property in respondent. The deed from Letton and wife to her shows that whatever interest she had was ordinary estate. At the date, therefore, of the alleged sale to Owens, she could have no agent as to the property. She could only bind it by an instrument under seal, duly acknowledged. Rev. Stat. 1879, sects. 669, 670; Wilcox v. Todd, 64 Mo. 390, par. 5; Huff v. Price, 50 Mo. 229 par. 7; Hall v. Callahan, 66 Mo. 324, par. 3.

II. Mutuality is of the essence of a contract. Both parties must be bound. Under the evidence in this case (on the theory that all of Mr. Nelson's was strictly correct), respondent was never bound. If so, neither was Mr Owens. There was no agreement. Respondent could only agree through the mode provided by statute. 1 Parsons on Cont. [5 Ed.] 365, 6, 8; Brown v. Rice, 29 Mo. 322. There is no evidence that the title bond was signed by respondent's husband, nor acknowledged by him. The plain inference from Mr. Nelson's testimony is, that she only signed as principal, and Mr. Nelson and Mr. Ross as her securities. Mr. Owens could not, therefore, have enforced specific performance. Nor could he, had the husband joined in the bond. Long v. Cockrell, 55 Mo. 93; Huff v. Price, 50 Mo. 228; Mueller v. Kaessmann, 84 Mo. 318; Sutton v. Casseleggi, 77 Mo. 397. A plaintiff can only recover upon the cause of action stated in the petition. The words of the amended petition, " on and before the third day of April, 1875, the above-named Catherine Walker was the owner of, and in the quiet and peaceable possession" of, the land, can only mean that it was charged, and was so intended, that Mrs. Walker's estate in the land was separate. There was a fatal variance of proof. 1 Greenl. Evid. [10 Ed.] 71; Burdeyne v. Mackey, 7 Mo. 374; Link v. Vaughn, 39 Mo. 585; Faulkner v. Faulkner, 73 Mo. 327, but see p. 335.

III. The allegation of the amended petition is, that Mrs. Walker and her husband tendered Mr. Owens a deed to the property June 21, 1875, and that respondent had the same in court. The proof is the tender of a deed dated October 2, 1876, sixteen months after a deed ought to have been tendered, under the alleged contract. The delay was unreasonable. Where a deed is to be tendered, and a time is named, time is of the essence. As to when time is essential, see Mason v. Payne, 47 Mo. 517; Proctor v. Price, 1 Mo. 373; Benedict v. Lynch, 1 Johns. Ch. [N. Y.] 370; Dominick v. Sayre, 4 Saund. 374. As to reasonable time, see Wiswall v. McGowan, Hoff. 125; 2 Parsons 535, 661.

IV. If plaintiff had any cause of action, her suit was on the note executed for the property. The note was not delivered, but was signed and agreed to be delivered, and, if lost, this could be shown. The suit was, therefore, wrongly brought. Steamboat v. Lumm, 9 Mo. 63; Rev. Stat., sect. 3559; Snyder v. Murdock, 51 Mo. 175; Miller v. Wells, 5 Mo. 6; Rhodes v. Outcault, 48 Mo. 367.

V. A party is only bound to a party with whom he contracts, as a general proposition. Here, on the weight of evidence, appellant's decedent was only bound to Wm. F. Nelson. Geo. W. Owens was not bound to accept a deed from Mrs. Walker and husband, because he did not contract with them, and because there may have been questions as to the purchase of Mr. Nelson's stock of merchandise, if Mr. Owens purchased the same, which affected Mr. Owens' interests. Mr. Owens never assented to any assignment. Southern Hotel Company v. Chouteau, 53 Mo. 574, par. 2; Lansden v. McCarty, 45 Mo. 106; 1 Parsons [5 Ed.] 223 et seq.

VI. The instruction given by the judge of the circuit court, on his own motion, is erroneous in these particulars, viz.: (1) Said instruction assumes that the contract contained in the bond of evidence was sufficient to bind George W. Owens. Sawyer v. Railroad, 38 Mo. 240. (2) The instruction leaves to the jury, or the court, sitting as a jury, what is, as a legal question, a good and sufficient warranty deed. Questions of law cannot be submitted to the jury, or the court sitting as a jury. The appellant could not know, from the instruction, what the court held to be a sufficient deed. Hudson v. Railroad, 53 Mo. 525. (3) Said instruction does not embrace all the issues in the case. The instruction given is, in effect, a special verdict. Raysdon v. Trumbo, 52 Mo. 35.

VII. Upon the clear weight of evidence, Mr. Nelson assumed to act as the owner of the land, and disposed of it as the owner, without disclosing any principal, and, therefore, the circuit court erred in refusing to exclude his testimony, Mr. Owens being dead. Rev. Stat. 1879, sect. 4010. While, as a general rule, the appellate courts in Missouri will not reverse on the ground that the lower court decided against the weight of evidence, yet they do not hold themselves bound by such a rule, and will disregard it under proper circumstances. The appellate courts will reverse where the findings are against the weight of evidence. The evidence, in this case, of Mr. Nelson, is overweighed by the evidence of Mr. Stout, Mr. Ross and other facts in the case. Mr. Nelson is a son of the plaintiff and, presumably, biased and interested. The witnesses for defendant are disinterested, and, presumably, unbiased. Forrester v. Scoville, 51 Mo. 268; Ackley v. Staehlin, 56 Mo. 558; Douglass v. Orr, 58 Mo. 573.

VIII. The supreme court, in the case in 79 Mo., cites the case of Price v. Hart (29 Mo. 171). That case is analogous with this, for the reason that respondent never indicated her acceptance of Mr. Nelson's acts until October 2, 1876, when, perhaps, respondent may have wished to take advantage of Mr. Owens and not Mr. Owens of respondent.

IX. The circuit court erred in refusing to give appellant's instructions, numbered three and four. There is no evidence that Mr. Owens signed the title-bond, nor that Mr. Nelson had authority, or could have authority to act as Mrs. Walker's agent. Rev. Stat., sect. 2513. Cases cited as to married women's ordinary estate.

X. The acknowledgment to the deed, dated October 2, 1876, is void. There was, and is, but one clerk of the county court. The acknowledgment implies that there was more than one.

XI. The remedy of respondent--if any she has--is purely in equity. It is clear she could not contract as to the land, except by instrument under seal, duly acknowledged. The action, stated in the amended petition, is purely on contract. How can there be an action on contract when there was no power of contracting? The action of respondent--if any she has--was in equity, arising out of the estoppel of Mr. Owens, and for the purpose of charging the land with the purchase money.

No brief for the respondent.

PHILIPS P. J.

This case was passed upon by the supreme court, on appeal from a former trial, and is reported in 79 Mo. 563. The cause having been remanded, it was re-tried on the same issues. The evidence, in every material particular, was the same on the last as the first trial, with the single exception that the one dollar, assumed, in the opinion, to have been paid by defendant on the purchase money, was not so intended. Verdict and judgment for plaintiff, from which defendant prosecutes this appeal.

I. Every important and controlling question of law involved in this case, was considered and determined by the supreme court. It was purposely so done, in remanding the cause, for the guidance of the trial court, in the event of further contention on the part of the defendant. That decision is binding and conclusive on this court. Laws of 1883, sect. 6, p. 216.

II. It is now insisted by appellant that there is a fatal variance between the allegations of the petition and the proof, in this, that the petition avers a separate estate in the plaintiff in the land in question, whereas the deed read in evidence, vesting title in her, only gave her a legal estate. The allegation of the petition is, that plaintiff, " in her own right, was the owner, and in the quiet and peaceful possession of" the land. It would be a most strained construction of this language to hold that it created a separate estate in the plaintiff. Be this as it may, we are wholly unable to perceive how such a fact can affect the result. The single issue was, did the defendant contract to purchase of the plaintiff the lot in question, and promise to pay therefor the sum of two hundred dollars, on the tender to him of a deed, as alleged. What difference could it make to the defendant whether the plaintiff's was a legal or separate estate? In either event she would have a right to sell, and her husband would have to join her in the deed, if living; and the defendant, under such deed, would acquire the fee absolutely. How could he, under such a state of fact, have made an affidavit of surprise or injury by such variance? The objection is the merest technicality, without substance or merit.

III. It is next urged that, as the plaintiff owned only a legal estate, as a feme covert, she could not, by a contract of sale, by agent or otherwise, bind herself to make a deed, enforceable, at law or in equity, against her, and therefore, specific performance could not be maintained for lack of mutuality. This objection was anticipated in ...