Wilson v. Wilson

• Decision Date: 08 January 1906
• Citation: 115 Mo. App. 641,92 S.W. 145
• Parties: WILSON v. WILSON.
• Court: Missouri Court of Appeals

92 S.W. 145

115 Mo. App. 641

WILSON v. WILSON.

Kansas City Court of Appeals. Missouri.

January 8, 1906.

1. CONTRACTS—CONSTRUCTION—INTENTION OF PARTIES.

In the interpretation of a written contract, the mutual intention of the parties, as collected from the words of the instrument and the facts and circumstances that gave it birth, is the dominating factor.

2. SAME—FORM OF CONTRACT.

While the form of a contract should be considered as in some degree expressive of the intention of the parties, yet, when form and substance conflict, the latter controls.

3. EXCHANGE OF PROPERTY—CONSTRUCTION OF CONTRACT—MERGER IN DEED.

While, in contracts for the sale of land, the execution and acceptance of a deed is usually the final conclusive evidence of the contract of the parties, and extinguishes all prior verbal or written agreements, yet, where the contract embraces not only the sale of land, but also payment for the land by a stock of goods, and requires the vendee of the land to assist in invoicing the stock and surrender its possession to the vendor before the conveyance of the land, and to thus place himself in the position of a creditor of the vendor to the extent of the excess in value of the goods over the land, the execution and delivery of a deed by the vendor in pursuance of the contract does not extinguish the contract, in the absence of special covenants or agreements in the deed changing or abrogating those of the contract.

4. SAME—MODIFICATION OF CONTRACT.

Where a contract for the exchange of land for a stock of goods required the vendor of the land to furnish a clear abstract of title, "except an incumbrance of $4,000," a provision of the deed, executed pursuant to the contract, that the sale was made "subject to an incumbrance of $4,000 and unpaid commission on such loan," did not modify the contract so as to impose upon the grantee the obligation of paying the commission on the loan.

5. SAME—MODIFICATION—CONSIDERATION.

Where a contract for the exchange of land for a stock of goods required the vendor of the land to furnish a clear title, with the exception of a stated incumbrance, a clause of the deed executed pursuant to the contract requiring the grantee to assume payment of an additional incumbrance to that stated would be without consideration.

6. SAME—CONSTRUCTION.

An agent's commission for services in negotiating a loan, the payment of which is secured by a deed of trust distinct from that securing the loan, is not, although it is computed on the basis of an annual charge of 2 per cent. on the amount of the loan, to be construed as representing interest on the loan itself, within the meaning of a clause of a contract for the exchange of the land for a stock of goods, which requires the vendee who assumes the incumbrance incurred by reason of the loan to pay interest on the loan after he is given possession of the land.

Appeal from Circuit Court, Worth County; W. C. Ellison. Judge.

Action by George B. Wilson against E. L. Wilson. From a judgment for plaintiff, defendant appeals. Affirmed.

Peery & Lyons and Kelson & Kelson, for appellant. Hudson & Du Bois, for respondent.

JOHNSON, J.

The cause of action pleaded in the petition is in the nature of assumpsit, and is for the recovery of an alleged unpaid portion of the purchase price of a stock of merchandise sold by plaintiff to defendant. The case was here once before, and is reported in 106 Mo. App. 501, 80 S. W. 711. It was reversed and remanded for reasons that do not now concern us. Following its dispositions under the former appeal, defendant filed an amended answer containing several affirmative defenses, none of which needs be stated, as no question touching the sufficiency of that pleading is before us, and the averments furnish a sufficient foundation to support the evidence offered. A statement of the facts in evidence will disclose the nature of the issues tendered by the pleadings. Plaintiff owned a stock of goods in a town in Worth county and defendant owned a farm of 350 acres in Macon county. The parties met in Bucklin, and, with the assistance of an agent (whose is not made clear, nor is it important), entered into a written contract prepared by the agent, and which is as follows:

                          "Bucklin, Mo., October 21, 1901
                

"This agreement made and entered into this day by and between Emmet L. Wilson, of Albany, Mo., party of the first part, and G. B. Wilson, of Worth, Worth county, Mo., party of the second part. Witnesseth that the party of the first part has this day sold to the party of the second part, his farm of about 315 acres known as the `Cherry Farm.' in sections 34 and 35 in Walnut Creek township. No. 59, of range 16, Macon county, Mo., and for the consideration of ten thousand five hundred dollars ($10,500.00) and is to furnish clear abstract of title excepting an incumbrance of $4,000.00 to be assumed by the said 2nd party. The party of the first part is to take in exchange therefor from the party of the second part, a stock of general merchandise, consisting of dry goods, groceries, boots, shoes, hardware, furniture and such other goods as may now be in stock, situated in large storerooms, size 50 x 80 in Worth, Mo. Said stock to be invoiced at first cost. Said goods bought from Mr. McRennels at the same price bought for. Also the fixtures at the same price taken for when bought by the said second party. Said first party to give possession of farm January 1st, 1902, or sooner if, also to pay interest on debt to that date. The stock of goods to be invoiced, commencing October 31, 1901, or sooner.

                     "[Signed]       E. L. Wilson. [Seal.]
                                    "G. B. Wilson. [Seal.]"
                

Pursuant to this contract, the goods were inventoried and found to be of the value of $7,266.77. Under the supposition that the amount of the incumbrance upon the land was $4,000, the value of defendant's interest therein was fixed by the contract at $6,500, which was $766.77 less than the agreed value of the goods. Upon the completion of the valuation of the merchandise, delivery thereof was made by plaintiff to defendant and accepted, and defendant continued the business of a retail merchant to that time conducted by plaintiff Defendant, at different times, made payments to plaintiff of different sums for application upon the amount due plaintiff on account of the excess in the value of the goods over that of defendant's interest in the land, and thereby extinguished that liability to plaintiff, save as to two items, one of which is the real subject of dispute. The first item relates to the unpaid interest that accrued on the real estate loan January 1, 1902, and which it is conceded defendant, under the contract, was to pay....