Wimer v. Wagner

• Citation: 20 S.W.2d 650,323 Mo. 1156
• Decision Date: 14 October 1929
• Docket Number: 27664
• Parties: Samuel L. Wimer and Thomas Burdeau, Appellants, v. A. A. Wagner and John Hutcheson
• Court: United States State Supreme Court of Missouri

20 S.W.2d 650

323 Mo. 1156

Samuel L. Wimer and Thomas Burdeau, Appellants, v. A. A. Wagner and John Hutcheson

No. 27664

Supreme Court of Missouri

October 14, 1929

Appeal from Circuit Court of City of St. Louis; Hon. John W Calhoun, Judge.

Affirmed and remanded (with directions).

Abbott Fauntleroy, Cullen & Edwards for appellants.

(1) Time is not of the essence of the contract sued upon. Levine v. Humphreys, 297 Mo. 555; Consumers Meat Co. v. Comensky, 299 Mo. 43; Heman v. Wade, 140 Mo. 340. (2) In equity time is not ordinarily regarded as of the essence of contracts, and therefore specific performance may be decreed in cases where justice requires it, even though literal terms of stipulations as to time have not been observed. Brashier v. Gratz, 6 Wheat. 528, 5 L.Ed 322; Taylor v. Longworth, 14 Pet. 172, 10 L.Ed. 405; Green v. Covilland, 10 Cal. 317, 70 Am. Dec. 725; Tyree v. Williams, 3 Bibbs (Ky.) 365, 6 Am. Dec. 663; Jones v. Robbins, 29 Mo. 35, 50 Am. Dec. 593, and note; Coleman v. Applegarth, 68 Md. 21, 6 Am. St. 417; Young v. Rathbone, 16 N.J.Eq. 224, 84 Am. Dec. 151; Sanford v. Weeks, 38 Kan. 319, 5 Am. St. 748; Steedman v. Drinkle, A. C. (Eng.) 275, Ann. Cas. 1916B 685. (3) A notice to take effect immediately or a notice that the contract is now at an end is ineffectual for such purpose because the time fixed in the notice to perform must be reasonable. Chabot v. Winter Park Co., 34 Fla. 258, 43 Am. St. 192; Boldt v. Early, 33 Ind.App. 434, 104 Am. St. 225; Parkin v. Thorold, 16 Beav. 59, 22 L. J. Ch. 170, 16 Jur. 959, 6 Eng. Rul. Cas. 503; Notes, 50 Am. Dec. 600, 678, 104 Am. St. 275; 36 Cyc. 715. (4) A tender of a deed or deeds would be necessary to enable defendant to claim the forfeit money. Lewis v. Craft, 39 Ore. 310, 64 P. 809; Frink v. Thomas, 20 Ore. 265, 12 L. R. A. 239, 25 P. 717; Daniels v. Newton, 114 Mass. 530, 19 Am. Rep. 384; Stanford v. McGill, 6 N.D. 536, 38 L. R. A. 760, 82 N.W. 938; Powell v. Railroad Co., 14 Ore. 360, 12 P. 665; Walker v. Allen, 50 N. C. (5 Jones, L.) 58. (5) The defendant Wagner repudiated the contract, and it is apparent that no tender would have been accepted after February 15, 1926. It is therefore not necessary that any tender should have been made. The offer in the bill to comply with the terms of the contract is sufficient to authorize the decree for plaintiffs. 3 Pomeroy's Eq. Jur. (1 Ed.) 453, note to Sec. 1407; Diechmann v. Deichmann, 49 Mo. 107; Pomeroy on Spec. Perf. (2 Ed.) sec. 361; Carskaddon v. Kennedy, 40 N. Y. Eq. 256. (6) The vendor must show that he is ready and has the present ability to convey according to the terms of the contract. Birge v. Bock, 24 Mo.App. 330; Eddy v. Davis, 116 N.Y. 247; Bigler v. Morgan, 77 N.Y. 312; Nelson v. Elevating Co., 55 N.Y. 480; Mix v. Beach, 46 Ill. 264; Peck v. Brighton Co., 69 Ill. 203; Gray v. Smith, 28 C. C. A. 168, 48 U.S. App. 581, 83 F. 829; Wallace v. McLaughlin, 57 Ill. 53; Platte Land Co. v. Hubbard, 12 Colo.App. 465; Hale v. Cravener, 128 Ill. 408; 9 Cyc Law & Prac. 601. (7) The vendor cannot insist upon a forfeiture for non-payment if he was unable to convey a perfect title according to the agreement. Walton v. McKinney (Ariz.), 94 P. 1122; Peck v. Brighton Co., 69 Ill. 200; Wallace v. McLaughlin, 57 Ill. 53; Mix v. Beach, 46 Ill. 311; Tate v. Pensacola, etc., Co., 37 Fla. 439, 542, 53 Am. St. 251; Getty v. Petters, 82 Mich. 661, 10 L. R. A. 465; Gerli v. Silk Mfg. Co., 57 N. J. L. 432, 30 L. R. A. 61, 51 Am. St. 612; Sievers v. Brown (Ore.), 45 L. R. A. 642. (8) A failure to perform on a given day goes only to the formal matter of the presentation or tender of a deed or demand of payment; and a vendor of real estate cannot enforce the contract against a vendee who is in default or has repudiated it, unless he himself is in a condition to perform. Sievers v. Brown, 34 Ore. 454, 45 L. R. A. 642, 56 P. 171; Hampton v. Speckenagle, 9 Serg. & R. 212, 11 Am. Dec. 704; Bigler v. Morgan, 77 N.Y. 312; Gray v. Smith, 28 C. C. A. 168, 48 U.S. App. 581, 83 F. 824; Mix v. Beach, 46 Ill. 311; Wallace v. McLaughlin, 57 Ill. 53; Peck v. Brighton Co., 69 Ill. 200; Birge v. Bock, 24 Mo.App. 330. (9) Testimony having been admitted without objection that defendants had no title at the time they attempted to declare a forfeiture, it is too late now to insist that such theory should be supported by a pleading, even if pleadings were originally necessary. However, in our judgment, pleading an excuse for tender was not necessary on the well-recognized rule that the issues made by the pleading afforded no opportunity to plead such tender, and the rule in such cases as this is that, where there is no opportunity to plead a tender, one is not required to plead a tender. 9 Ency. of Pl. & Pr. 618, note 1; Oester v. Sitlington, 115 Mo. 257; Young v. Glasscock, 79 Mo. 574; Simmon v. Simcox, 75 Mo.App. 149; Mfg. Co. v. Cunningham, 73 Mo.App. 381; Fraser v. Draper, 51 Mo.App. 163; Bank v. Lime Co., 43 Mo.App. 561. (10) The court will not mulct a party in damages or forfeit his earnest money for declaring that he will not accept any pay for property which the other party cannot convey and deliver. Bigler v. Morgan, 77 N.Y. 319; Sievers v. Brown, 34 Ore. 460, 45 L. R. A. 642; McCann v. Albany, 158 N.Y. 639. (11) The remedy at law which will bar relief in equity by way of specific performance must be as practical and efficient to the end of justice and its prompt administration as the remedy in equity. Livesly v. Johnston, 65 L. R. A. 783, 45 Ore. 30, 76 P. 13, 946. (12) If plaintiffs are not entitled to specific performance, which we think they are, then they are certainly entitled to a judgment for damages because their proof has made out a case for specific performance, and if that is denied it is because the act of the other parties has made it impossible or impractical. Sternberger v. McGovery, 56 N.Y. 12; Fielder v. Reckshae, 227 S.W. 929; Herrin v. Peisch, 240 Mo. 221; Palmer's Equity Jurisprudence (2 Ed.) sec. 1410; Tebeau v. Ridge, 261 Mo. 547.

Leahy, Saunders & Walther for respondent, Wagner.

(1) It is not necessary, in order to make time of the essence of a contract, that it should be so stated in express terms in the contract itself. Grace v. Rowe, 103 Mo. 513; 36 Cyc 709-713; Mason v. Payne, 47 Mo. 517; Durant v. Comegys, 28 P. 425. (2) Time is ordinarily of the essence of the contract in the view of a court of equity whenever it appears to have been part of the real intention of the parties that it should be so. Fry on Spec. Perf. (5 Ed.) 527, sec. 1075. (3) Granting or denial of a decree of specific performance is a matter resting in the sound discretion of the court. 20 Ency. Pl. & Pr. 390; Hollman v. Conman, 143 Mo. 378. (4) The principles applicable to specific performance are nearly as well settled as if they were the subject of positive statutory enactments. 20 Ency. Pl. & Pr. 393; Veth v. Gierth, 92 Mo. 97. (5) In a suit for specific performance, performance of conditions precedent must be alleged and proved, as until they have been performed, the plaintiff has no right to call upon the defendant for performance upon his part. 20 Ency. Pl. & Pr. 453; Fry on Spec. Perf. (5 Ed.) 458, secs. 923, 924; Lanyon v. Chesney, 186 Mo. 540; Secret Service Co. v. Mfg. Co., 125 Mo. 140; Waterman on Spec. Perf. sec. 443; 36 Cyc 697. (6) Where performance is not alleged, it is necessary to allege an excuse therefor. 20 Ency. Pl. & Pr. 454, 456; Waterman on Spec. Perf. sec. 445, p. 609. (7) The plaintiff's bill is multifarious in that specific performance is demanded as against Hutcheson who is the holder of the title to the property, and damages are demanded as against defendant Wagner for breach of contract, to which defendant Hutcheson was not a party. There is misjoinder of parties and of causes of action. Clamorgan v. Guise, 1 Mo. 141; Searcy v. Clay County, 176 Mo. 493. (8) Damages in lieu of specific performance are only allowable on the theory that the plaintiff has made out a case for specific performance, but the conditions are so changed that performance cannot be decreed. Mueller v. Wall, 251 S.W. 119; Falder v. Dreckshage, 227 S.W. 992; Clark v. Mining Co., 176 F. 180; 36 Cyc 747; McQueen v. Chouteau's Heirs, 20 Mo. 222.

Goodbar & Gilster and Wilton D. Chapman for respondent, Hutcheson.

(1) A mere suspicion that some other person claims an interest in property will not affect a person with notice of such interest. Thompson on Real Property, sec. 4193. (2) The want of caution on the part of the second purchaser must amount to fraudulent and willful blindness on his part. Jones v. Smith, 1 Hare's Ch. 55; Gruendies v. Reid, 107 Ill. 312; Ware v. Lord Edgmont, 4 De C. M. & G. 473. (3) A purchaser is not deemed to have notice of an outstanding equity, though informed it once existed, if at the same time he is told by the informant that the equity has been discharged. 27 R. C. L. 712; Rogers v. Wiley, 14 Ill. 65. (4) Where the subsequent purchaser gets the legal title and another party holding an equitable title seeks to oust him, the burden of proof rests upon the holder of such equity to show that the subsequent purchaser had notice, actual or constructive, of his equitable title, or such facts as would put a prudent man on inquiry. Thempson on Real Estate, sec. 4204; Anthony v. Wheeler, 130 Ill. 128.

Ellison, C. Lindsay and Seddon, CC., concur.

OPINION

ELLISON

This is a suit in equity for specific performance of a written contract to convey land. The St. Louis City Circuit Court dismissed the plaintiff's bill with prejudice, and they have appealed.

By the contract the respondent Wagner (whom we shall call the vendor) agreed to sell to the appellants a lot having a frontage of sixty-five feet on Pine Street in St. Louis for a...