Waugh v. Williams

• Decision Date: 17 August 1938
• Docket Number: 35271
• Citation: 119 S.W.2d 223,342 Mo. 903
• Parties: William N. Waugh and Mary Waugh v. Frank B. Williams, Appellant
• Court: Missouri Supreme Court

119 S.W.2d 223

342 Mo. 903

William N. Waugh and Mary Waugh v. Frank B. Williams, Appellant

No. 35271

Supreme Court of Missouri

August 17, 1938

Appeal from Greene Circuit Court; Hon. Guy D. Kirby, Judge.

Affirmed.

Farrington & Curtis, Neale & Newman and Wm. R. Collinson for appellant.

(1) In an equity appeal the appellate court should decide the case on the merits from a consideration of the entire record. Dinkelman v. Hovekamp, 80 S.W.2d 681; Hockenberry v. Cooper County Bank, 338 Mo. 31, 88 S.W.2d 1031; Franklin v. Moss, 101 S.W.2d 711; Jale v. Winstein, 102 S.W.2d 650. (a) Specific performance is not a matter of right in equity, but rests in the sound discretion of the court or chancellor. Gottfried v. Bray, 208 Mo. 652, 106 S.W. 639; Kirby v. Balke, 306 Mo. 109, 266 S.W. 704; Rockhill Tennis Club v. Volker, 331 Mo. 947, 56 S.W.2d 9; Selle v. Selle, 337 Mo. 1234, 88 S.W.2d 79. (2) The petition wholly fails to state a cause of action and wholly fails to support the judgment. Pomeroy's Specific Performance of Contracts (3 Ed.), secs. 360, 361 363; Sec. 779, R. S. 1929; Hubbell v. Van Schoening, 49 N.Y. 321; Deitrich v. Franz, 37 Mo. 86; Olmstead v. Smith, 87 Mo. 606; Lumaghi v Abt, 126 Mo.App. 231, 103 S.W. 104; Curtis v Sexton, 142 Mo.App. 179, 125 S.W. 806; Lenyon v. Chesney, 186 Mo. 540, 85 S.W. 568; Jose v. Aufderheide, 222 Mo.App. 524, 293 S.W. 476; Powell v. Hunter, 204 Mo. 393, 102 S.W. 1020; Rhodes v. Land Co., 105 Mo.App. 279, 79 S.W. 1145; Matheison v. Railroad Co., 219 Mo. 552, 118 S.W. 9; Platt v. Parker, 161 Mo.App. 669, 144 S.W. 143; Smissman v. Wells, 213 Mo.App. 482, 255 S.W. 935; Kent v. Trenton, 48 S.W.2d 571; Neal v. Twelfth & Grand Ave. Co., 70 S.W.2d 136; Ellyson v. Mo. P. & L. Co., 59 S.W.2d 714; Hamilton v. Stand. Oil, 19 S.W.2d 679; State ex rel. v. Haid, 328 Mo. 807, 41 S.W.2d 789. (3) Plantiffs' former suits in ejectment and for the appointment of a receiver bar this action because: (a) The suit in ejectment constituted a rescission by the plaintiffs of this contract which they now seek to have specifically performed. Pomeroy's Specific Performance of Contracts (3 Ed.), secs. 6, 171, 323, 327; Black on Rescission of Contracts, secs. 196, 563; 66 C. J., sec. 1401, p. 1379; Norris v. Letchworth, 167 Mo.App. 553; Feld v. Inv. Co., 123 Mo. 603, 27 S.W. 635. (b) The institution of the suits in ejectment and for appointment of a receiver, which latter went to final judgment, constituted an election of remedies inconsistent with this suit for specific performance. 66 C. J., sec. 1401, p. 1379; City Light Co. v. Machine Co., 170 Mo.App. 224, 156 S.W. 83. (4) Defendant was only bound to pay for the property, and when plaintiff lost their title they lost their right to compel defendant to pay the contracted purchase price. Pomeroy's Specific Performance of Contract (3 Ed.), secs. 323, 327, 364; 41 C. J., sec. 757, p. 717; 58 C. J., secs. 28, 39; Winston v. Brown, 247 F. 948; Clark v. Andrews, 4 F.2d 124.

E. P. Mann and Mann, Mann & Miller for respondents.

(1) Appellant, as purchaser of the land and property under the executory contract of sale, occupied the status, as long as a part of the purchase price was unpaid, of an equitable owner of the land covered by the contract with respondents, the vendor retaining the legal title as security for the unpaid purchase money. Beckmann v. Beckmann, 58 S.W.2d 491; Manning v. Ins. Co., 123 Mo.App. 456; Majors v. Maxwell, 120 Mo.App. 281; Standard Oil Co. v. Dye, 20 S.W.2d 946, 223 Mo.App. 926; Block v. Morrison, 112 Mo. 350; Mahan v. Ins. Co., 205 Mo.App. 592; 39 Cyc. 1302, 1303; 27 R. C. L., sec. 178, p. 464. (2) Respondents had the right to a judgment in this case and to enforce his vendor's lien at the time of the institution of this suit, notwithstanding the fact that the appellant had only an executory contract with respondents for the conveyance of the land. This in view of the fact that part of the purchase money agreed to be paid by the terms of the contract by the appellant was due and unpaid. Adams v. Cowherd, 30 Mo. 458; Gessner v. Palmater, 13 L. R. A. 187. (3) Respondents' petition states a cause of action. It is alleged therein as follows: "Plaintiffs state they have always been ready and willing and are now ready and willing to execute and deliver to the defendant the deed provided for in said contract upon defendant's compliance with the terms thereof." Powell v. Hunter, 204 Mo. 393. (4) Respondents' former suits in ejectment and for the appointment of a receiver, none of them having been prosecuted to final judgment, are no bar to this action. Commission Co. v. Railroad Co., 126 Mo. 344; Johnson-Brinkman Co. v. Central Bank, 116 Mo. 558; Dry Goods Co. v. Warden, 151 Mo. 578; Otto v. Young, 227 Mo. 193; Cowan v. Young, 282 Mo. 36; Smith v. Becker, 184 S.W. 943. (5) Appellant in his points and authorities does not raise the question of failure on the part of respondents to tender deed to the property in question timely, but does raise it in his printed argument. Appellant has no defense to this action founded upon any failure of the respondents to tender him a deed, as disclosed by the evidence, because the undisputed testimony Williams failed and refused to pay the consideration for the deed and when called upon to do so stated that he did not have the money. The tender would have been useless. Jose v. Aufderheide, 293 S.W. 476; 13 C. J. 662; Smith v. Means, 170 Mo.App. 171. Ordinarily the tender of a deed is necessary, but the rule is not invariable or without exception. Among the well-established exceptions is where the other party places himself in such a position that it appears the tender made would have been refused. Diechman v. Diechman, 49 Mo. 109; Harvey v. Morris, 63 Mo. 475; Wright v. Lewis, 323 Mo. 410; Powell v. Hunter, 257 Mo. 440; Lanyon v. Chesney, 186 Mo. 540. Appellant cannot complain of the failure of respondents to sooner tender him a deed for the further reason that appellant, within a few days after signing the contract, entered into possession of all the property which by its terms respondents were to convey to him when he finished his cash payment within thirty days, and has ever since held possession thereof, without paying respondent the contract price. He is thereby estopped from making any defense until he restores respondents to possession. Harvey v. Morris, 63 Mo. 475; Smith v. Busby, 15 Mo. 393; Wright v. Lewis, 19 S.W.2d 289; Powell v. Hunter, 257 Mo. 440; Lanyon v. Chesney, 186 Mo. 556; Pershing v. Canfield, 70 Mo. 140.

OPINION

Tipton, J.

In the Circuit Court of Greene County, Missouri, respondents brought this action to compel appellant to pay the balance of the purchase price of the Keystone Hotel which he had contracted to buy from them and to establish a lien against this property for the unpaid portion of the purchase price. The trial court entered a judgment against appellant in the sum of $ 7736, but did not enforce the lien.

On October 22, 1932, respondents entered into a written contract with appellant, by the terms of which they sold the Keystone Hotel, located in Springfield, Missouri, including both real and personal property, to appellant for the sum of $ 9500. The contract provided that $ 5000 be paid in cash, the balance to be expressed in a note bearing six per cent per annum interest and secured by a second deed of trust. The contract recites that the sale was subject to a first deed of trust to secure a note of $ 16,000, upon which $ 1000 would be due February 4, 1934, $ 1000 due February 4, 1935, $ 1000 due February 4, 1936, and the balance due February 4, 1937. Respondents agreed to pay all interest on the $ 16,000 note up to February 4, 1933. Appellant was to pay all State and county taxes. Respondents were to transfer all insurance, with the premiums paid, to appellant.

The contract further recites that appellant paid $ 200 on the date the contract was executed and was to pay $ 4800 in cash within thirty days. It also provided that he was to have possession of all the property on November 1, 1932. The evidence shows that he did take possession on that date and never thereafter surrendered it. By the terms of the contract, respondents were to make, execute and deliver to appellant a good and sufficient deed to the real estate, subject to the first deed of trust and taxes, when the cash payment was completed, and make a bill of sale for the personal property. The contract provided that respondents should have a lien upon all the property until the cash payment provided for was completed and until the second deed of trust was executed and delivered.

When the $ 4800 became due, respondent W. N. Waugh went to appellant and spoke to him about closing the contract, to which appellant replied that he did not have the money but was trying to get it. However, on December 19, 1932, appellant paid respondents $ 900 and on February 15, 1933, he paid them $ 50 on the contract. At the time of each payment he stated that that was all he could pay. The matter ran along until March 13, 1933, when appellant paid the holder of the first mortgage note $ 462.72, being the installment of interest, and also paid $ 266.42 premiums due on the insurance policies. Both of these items were to have been paid by respondents according to the terms of the contract; however, respondents did give appellant credit for them. There remained another installment of interest of $ 430 which respondents had agreed to pay but they gave appellant credit for this sum on March 13, 1933. At various times thereafter respondents made demands for payment of money due under the contract but were always told by appellant that he could not raise the money.

On August 26, 1933, respondents instituted an ejectment action against appellant and...