Warren v. Castello
| Citation | 19 S.W. 29,109 Mo. 338 |
| Parties | Warren et al. v. Castello, Administrator, Appellant |
| Decision Date | 28 March 1892 |
| Court | United States State Supreme Court of Missouri |
Appeal from St. Louis County Circuit Court. -- Hon. W. W. Edwards Judge.
Reversed and remanded.
Rassieur & Schnurmacher and G. W. Royse for appellant.
(1) The contract was not enforceable since there was no consideration to support it. Mrs. Warren paid no consideration to Mrs Mreen, and it cannot be claimed that she entered into the lease or into possession in consequence of the contract because her own evidence showed that the lease was entered into and possession was taken by her long before this contract was executed by the deceased. Indeed, the contract recites these facts. The agreement was, therefore, gratuitous and voluntary and not capable of enforcement. Tucker v. Bartle, 85 Mo. 114, and cases cited; Story on Equity Jurisprudence, sec. 793b. (2) The alleged improvements constituted no part performance which would give strength to plaintiff's position, because they were only such as occurred in the ordinary course of husbandry, and in the ordinary use of the premises for the purposes for which they were rented, and there was no evidence showing that said improvements were made in pursuance of the alleged contract. Nor that William Mreen knew that they were being made. Emmel v. Hayes, 102 Mo. 186. (3) A contract, to be enforced, must not only be based upon a sufficient consideration, but must be certain and mutual. Mastin v. Halley, 61 Mo. 196; Story on Equity Jurisprudence, secs. 723, 736, 751; Fry on Specific Performance, 133; Pomeroy on Contracts (Specific Performance), sec. 40. (4) "And there must not only be a mutuality in the contract itself, but there must be a mutuality of remedy." Neef v. Redmon, 76 Mo. 195; Glass v. Rowe, 103 Mo. 513; Marble Co. v. Ripley, 10 Wall. 339; Story on Equity Jurisprudence, sec. 787; Adams on Equity [4 Am. Ed.] 237 (note); Pomeroy on Contracts, secs. 162-166; Rose v. Bell, 38 Barb. 25; Benedict v. Lynch, 1 Johns. Ch. 370; German v. Machin, 6 Paige, 288; Woodward v. Harris, 2 Barb. 439. (5) It was error to permit plaintiff, Mary Warren, to testify. She was wholly incompetent, and no more qualified to prove an offer to perform, or part performance, than to prove the contract itself. Sitton v. Shipp, 65 Mo. 297; Chapman v. Dougherty, 87 Mo. 617; Meier v. Thieman, 90 Mo. 433; Emmel v. Hayes, 102 Mo. 186.
J. A. Henderson for respondents.
(1) The contract of William Mreen for the sale and conveyance of the land to Mrs. Warren was founded on a good consideration, and, although only signed by him, is sufficiently clear and certain in its terms, and affords a competent basis for a suit for specific performance. Bean v. Valle, 2 Mo. 126; Halsa v. Halsa, 8 Mo. 303; Ivory v. Murphy, 36 Mo. 534; Mason v. Payne, 47 Mo. 518; Mastin v. Grimes, 88 Mo. 478; Green v. Richards, 23 N.J.Eq. 32; Johnston v. Trippe, 33 F. 530; Mansfield v. Hodgdon, 17 N.E. 544; Fry on Specific Performance, sec. 291; Chamberlain v. Robertson, 31 Iowa 410; Walker v. Owen, 79 Mo. 563; Waterman on Specific Performance, sec. 200; Butler v. Thompson, 91 U.S. 412; Schroeder v. Gemeinder, 10 Nev. 355; Moses v. McClain, 82 Ala, 370; Sylvester v. Boon, 132 Pa. 467.
This proceeding was commenced in the probate court of St. Louis county, seeking the specific performance of an agreement alleged to have been made February 1, 1884, between plaintiff, Mary J. Warren, then and now a married woman, and William Mreen, since deceased, whereby it is claimed that the said Mreen agreed at any time before March 1, 1889, to convey to said Mary J. Warren certain land lying in St. Louis county, upon the payment to him of $ 2,000.
The proceeding was originally commenced against Mary Ann Mreen, the widow and executrix of the deceased; since the appeal to this court, Charles Castello, her successor as administrator of the estate, has been substituted for her in the action.
The contract, which is made the basis of this proceeding, is in the form of a bond, in which the said Mreen binds himself to plaintiff, Mary J. Warren, in the penal sum of $ 2,000, to be void if he should make and deliver to her a good and sufficient warranty deed for said parcel of land. The contract is signed only by said Mreen, and contains the following provision:
"And it is further expressly understood and agreed that the said Mary Warren is in no way obligated to purchase said lands, but that the true intent and meaning of this instrument is that the said Mary Warren, who is now occupying said lands under a written lease, for a term of fifteen years, ending March 1, 1889, shall hereby and herein have the privilege of purchasing said lands at any time during the continuance of said term by paying to said William Mreen the said sum of $ 2,000; and that, upon payment of said sum of money within the time specified, the said Mreen shall cause to be made, executed and delivered to her a good and sufficient warranty deed therefor."
The evidence disclosed that Mrs. Warren never paid, or offered to pay, any part of the purchase price to Mreen, in his lifetime; that, when Mreen signed the agreement, she was already in possession of the land therein described under a lease theretofore entered into between her husband (who was also her trustee) and Mreen, dated June 14, 1883; that Mrs. Warren was in the quarry business; that she had worked a quarry on the land, and had also set out some fruit trees and grapevines on a part of it. Against the objections of defendant that she was an incompetent witness, the plaintiff, Mary J. Warren, was permitted to testify in her own behalf in the circuit court; that before commencing this proceeding she had tendered Mrs. Mreen, who was then acting as executrix of deceased, the sum of $ 2,000, and had demanded of her a conveyance to the land. To this action of the court, in permitting Mrs. Warren to testify, an exception was duly saved by defendant.
In the probate court, and again in the circuit court, there was a finding and judgment for the plaintiff, and the case has been brought here on an appeal taken by the representative of the estate.
On behalf of the defendant it is submitted that the court below erred in its judgment, and that no specific performance of the contract should have been ordered; because:
First. The agreement is without consideration to support it. Second. The agreement lacks mutuality of obligation and of remedy, in this: That Mrs. Warren, having been at the time the contract was made (and ever since) a married woman, the same was not binding upon her, nor enforceable against her. Third. The contract lacks mutuality by its own terms, independent of any personal incapacity of Mrs. Warren. Fourth. There was also error in permitting Mrs. Warren to testify as a witness in her own behalf, inasmuch as the other party to the contract in issue and on trial was dead.
As Mreen signed the bond, the statute of frauds constitutes no objection to the validity of the contract. His estate was sought to be charged. The objection to this contract is much more substantial. The want of any consideration to support it, and the incapacity of Mrs. Warren to make it, are urged against it.
Here the record discloses that no part of the purchase money has been paid or accepted. No consideration was paid Mreen for signing the agreement; it was purely voluntary; the agreement to sell was no part of the lease; it was subsequent to and independent of the lease; the possession of the land was by virtue of the lease only, and is referable to that and not the agreement to sell. Emmel v. Hayes, 102 Mo. 186 14 S.W. 209. So that we have here the case of a land-owner of his free will, without any...
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