Whedon v. Ames

• Decision Date: 20 December 1887
• Parties: MARY O. WHEDON, Executrix, Respondent, v. LUCY V. S. AMES, Appellant.
• Court: Missouri Court of Appeals

28 Mo.App. 243

MARY O. WHEDON, Executrix, Respondent, v. LUCY V. S. AMES, Appellant.

Court of Appeals of Missouri, St. Louis.

December 20, 1887

APPEAL from the St. Louis Circuit Court, AMOS M. THAYER, Judge.

Reversed and remanded.

G. M STEWART, for the appellant: There was no contract. Mrs. Ames never sold or agreed to sell the furniture to Whedon. She never knew him as a proposed purchaser when the verbal agreement was made to sell to Rea. Mfg. Co. v Broderick, 12 Mo.App. 378; Robinson v Railroad, 75 Mo. 494. The subsequent promise to let Whedon have the furniture was coupled with a condition which was never fulfilled. Falls Wire Co. v. Broderick, 12 Mo.App. 378; Eads v. Carondelet, 42 Mo. 117; Bishop on Contracts (1 Ed.) sec. 179. It was an error to admit evidence to show that the property sued for was included in the transaction which resulted in the deed to Whedon. The result of the negotiations is evidenced by that deed, and it was improper to admit evidence to show that other property was included in that sale, the consideration for which was named in that deed as the consideration for the land described. Jones v. Shaw, 67 Mo. 670; Pearson v. Carson, 69 Mo. 551; Chrisman v. Hodges, 75 Mo. 413; Sterling v. Winter, 80 Mo. 141; Smith v. Shell, 82 Mo. 215; Lewis v. West, 23 Mo.App. 503.

COLLINS & JAMISON, for the respondent.

OPINION

ROMBAUER J.

The action is trover, brought to recover the sum of six thousand dollars, the alleged value of certain furniture which, it is charged, was the property of the respondent's testator, and which the appellant is said to have wrongfully taken into her possession and converted to her own use.

The answer is a general denial.

The testimony in the case presents the following state of facts:

In 1883, one Wilbur F. Brinck, a real-estate broker in this city, learned that the appellant was contemplating a sale of her house, then her home, No. 1615 Lucas Place, and he called on her for the purpose of securing a trade or exchange of other property for this house. His proposition was to give, in exchange for this house and certain other vacant property which the appellant owned, and which was situated on Washington avenue, an undivided one-third interest in another tract of land. This one-third interest belonged to George H. Rea, now deceased, a man of very considerable wealth. For this one-third interest it was proposed that the appellant make a deed of her house, No. 1615 Lucas Place, and certain other property on Washington avenue, which was unimproved. The appellant owned ninety-nine feet of vacant ground on Washington avenue, and negotiations extended through a period of nearly or quite six months respecting the terms of the proposed trade. Some of the propositions made included the whole ninety-nine feet; others only fifty feet; others embraced all the furniture in the house, No. 1615 Lucas Place, and others only a portion of it. All of these negotiations were had with Mrs. Ames respecting the proposed trade or exchange of properties with Rea. The result of these negotiations was, that Mrs. Ames should deed her house, No. 1615 Lucas Place, and fifty feet of vacant ground on Washington avenue, to Rea, for a deed from him of an undivided one-third of the Cabanne tract of land, and in addition she was to leave a portion of the furniture in her house--in substance, that portion of it which is set out in the petition.

Some time after these terms were verbally agreed upon, a deed was presented for Mrs. Ames' signature, by the terms of which she was to convey the Lucas Place property to one E. H. Whedon, and receive from him notes secured on the same property for twenty-five thousand dollars, and make a deed of her Washington avenue property to Rea, and from him receive a deed to his interest in the Cabanne tract, and give him a deed of trust on this interest for twenty-five thousand dollars. These papers were presented to her, at the instance of Brinck, by H. G. Knapp, who was the appellant's agent for certain purposes, as will appear hereafter. An examination of these papers presented to her, for the first time disclosed the name of Whedon in this transaction. He was a stranger to her personally or by reputation, and she refused to make any such trade with him, as she states, for the reason, among others, that she did not wish to sell her house for the notes of a person she did not know, and take the risk of collecting them; and, further, that she had made no bargain to sell this property to Whedon. She retained these papers several days, and, in the meantime, Brinck called on her to urge her to execute them and accept Whedon's notes, secured by deed of trust on the property, and as an inducement for her to do so told her that Samuel Gaty, a wealthy citizen of St. Louis, since deceased, would buy the house and pay cash for it, and in this way Whedon's notes would be cashed at once.

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