Welsh v. Veasley

• Decision Date: 30 December 1920
• Docket Number: No. 21261.,21261.
• Citation: 286 Mo. 93,227 S.W. 58
• Parties: WELSH v. VEASLEY.
• Court: Missouri Supreme Court

227 S.W. 58

286 Mo. 93

WELSH v. VEASLEY.

No. 21261.

Supreme Court of Missouri, Division No. 2.

December 30, 1920.

Appeal from Circuit Court, Pemiscot County; Sterling H. McCarty, Judge.

Suit by David Welsh against George Veasley. From a judgment for defendant, plaintiff appeals. Reversed and remanded, with directions to enter judgment for plaintiff.

This action concerns the ownership, between plaintiff and defendant, of lot 1, in block 31, in Hunter's addition to the city of Caruthersville, Pemiscot county, Mo.

Suit to quiet title thereto was brought by plaintiff in the circuit court of said county, June 23, 1917, in two counts, one to quiet the title under the provisions of section 2535, R. S. 1909, and the other to recover possession, damages, monthly rent, etc., until the possession of said lot was restored.

Defendant pleaded in his answer that on July 28, 1916, and now, he was the owner and in the lawful possession of said lot, and that on said day plaintiff, by his agent, Frank Scott, contracted with defendant in writing to sell, and did sell, said lot to him at the price and sum of $400, $25 in cash, defendant to execute 15 promissory notes of that date, each $25, payable one every three months, with interest at 8 per cent. from date, and when the second of said notes was paid to him defendant, in turn, was to give plaintiff a deed of trust thereon to secure the payment of the remainder of said notes, but by mutual mistake of said Frank Scott, who wrote said contract, and defendant, said contract provided for the making of 7 notes only, when by the terms of the contract actually made it should have provided for 15 notes; alleged, further, that he had paid $25 to plaintiff, and had made valuable and lasting improvements on said lot aggregating $200; alleged that he was willing and ready to pay plaintiff all of the money due on said contract and to give said deed of trust to secure the remainder of said notes, and in all things do as he had contracted, but alleged that plaintiff refused, and still refuses, to comply with his part of said contract.

Plaintiff replied with a specific denial of all of the averments of said answer.

The contract of sale of said lot between plaintiff and defendant was offered and read in evidence, and is as follows:

"Agreement made this the 28th day of July, 1916, between David Welsh of Anaheim, California, party of the first part, and George Veasley, of Caruthersville, Missouri, party of the second part:

"The said party of the first part hereby agrees to sell and convey by good warranty deed to the party of the second part the following described property: All of lot 1, in block 31, Hunters' addition to Caruthersville, Missouri, for and in consideration of the sum of four hundred dollars ($400) to be paid by said party of the second part in the manner as follows: Twenty-five dollars cash, the receipt whereof is hereby acknowledged, and to execute seven promissory notes, payable one in every three months, of twenty-five dollars each, bearing interest at 8%.

"That the party of the first part, after receiving payment on the second note, shall prepare and deliver a good warranty deed to the party of the second part, and the party of the second part shall deliver to the party of the first part his `deed of trust' to secure the remainder of the payments.

"Witness the hands and seals of the said parties on the day and said year first above written.

                                       David Welsh
                                         "By Frank Scott, Agent
                                              his
                                       "George X Veasley
                                              mark
                         "Witness: Mrs. R. M. Forster."
                

The cause was tried as an action in equity before the court, without instructions, and decree went for defendant adjudging the correction of said contract in accordance with defendants' answer, and the performance thereof as corrected.

After a motion for a new trial had been overruled by the court, the cause was duly appealed to this court.

N. C. Hawkins, of Caruthersville, for appellant.

J. E. Duncan and J. R. Brewer, both of Caruthersville, for respondent.

MOZLEY, C. (after stating the facts as above).

1. The pivotal question in this case is, was plaintiff's agent, Frank Scott, authorized to sell the lot in question to defendant? On this point plaintiff testified as follows:

"I wrote letters to Frank Scott. I did not write him or tell him to sell this property in question. I never heard of George Veasley wanting to buy this property in question until I came back. I did not authorize him to sell this lot in question. I never knew it was sold. I didn't know he wanted it. I never did tell him to sell the property for $400. I never wrote him to do so. I didn't know it was sold till I got here. He sold the lot for less than I ever thought of selling it. I never gave Scott any authority in regard to this property. I would not have signed the papers conveying the property to Veasley for $400. The only power Scott ever had was to collect rents."

In support of the authority claimed under said written contract (which was drawn by said agent, who signed plaintiff's name thereto) to sell said lot to Veasley, said agent testified as follows:

"I have had correspondence with David Welsh, before this, with reference to selling this lot. I have lost the letter. I can't find it anywhere. I have looked through my files. I found a few letters, but not that one. David Welsh was living in California at the time. I don't have any recollection...