Young Men's Christian Ass'n of Kansas City v. Dubach

• Decision Date: 31 October 1884
• Citation: 82 Mo. 475
• Parties: THE YOUNG MEN'S CHRISTIAN ASSOCIATION OF KANSAS CITY v. DUBACH et al., Appellants.
• Court: Missouri Supreme Court

82 Mo. 475

THE YOUNG MEN'S CHRISTIAN ASSOCIATION OF KANSAS CITY

v.DUBACH et al., Appellants.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Jackson Circuit Court.--HON. TURNER A. GILL, Judge.

AFFIRMED.

Tomlinson & Ross and J. T. Dew for appellants.

The motion to dismiss should have been sustained. Wildbahn v. Robidoux, 11 Mo. 659; and the motion was the proper way to raise the point. Hann. v. St. J. R. B. Co. v. Kundson, 62 Mo. 569; Peake v. Bell, 65 Mo. 584. The objection to all the evidence, because the petition does not state facts sufficient to constitute a cause of action, should have been sustained. Pershing v. Canfield, 70 Mo. 140. The objection to the record offered by plaintiff to prove its corporate capacity, ought to have been sustained, and plaintiff should have been required to prove its incorporation by competent evidence. R. S., § 710; Bliss on Code Plead., §§ 246, 251, 324, 345; Gould on Plead, chap. 6, § 47, note 6; Farmers & Drovers' Bank v. Williamson, 61 Mo. 259; Little v. Harrington, 71 Mo. 390. When an alleged agreement to convey land is denied in defendant's answer, it is not necessary for him to insist upon the statute of frauds as a bar, but the plaintiff must produce legal evidence of the existence of the agreement which cannot be established by parol proof. Bliss on Code Plead., § 353, and cases there quoted; Wildbahn v. Robidoux, 11 Mo. 659; Cozine v. Graham, 2 Paige 177, 181; Ontario Bank v. Root, 3 Paige 478, 481. Bryan was acting under special written authority, as plaintiff's representatives knew. If he exceeded his authority, the defendants are not bound. Story on Agency, §§ 69, 72, and note; Tate v. Evans, 7 Mo. 419; Mechanics Bank v. Schaumberg, 38 Mo. 228, 238; Nesbitt v. Helser, 49 Mo. 383. One relying on the ratification by the principal of an agent's act, must show that the confirmatory act took place with full knowledge of all the facts by the party to be charged. Cravens v. Gillihan, 63 Mo. 28; Bank v. Gay, 63 Mo. 33; Arnold v. Dresser, 8 Allen 435. Acceptance of an offer to sell land, to be operative, must be unequivocal, unconditional and must not vary from the proposal. Fry on Spec. Perf., §§ 167 to 172; Waterman on Spec. Perf., §§ 132, 134, 135; Eads v. Carondelet, 42 Mo. 113, 117; Carter v. Shorter, 57 Ala. 253, 257, 258; Jenness v. Mount Hope Iron Co., 53 Me. 20. In a suit for specific performance, the contract, as alleged in the petition, must be clearly shown to have been fully agreed upon by both parties to the suit in all particulars, and closed, and the parties must have agreed to the same thing, in the same sense. Waterman on Spec. Perf., §§ 141, 152; Taylor v. Williams, 45 Mo. 80; Blanchard v. Railroad Co., 31 Mich. 43. Contracts to be specifically enforced, must not only be proved in a general way, but their terms must be so precise and exact that neither party could reasonably misunderstand them, and those terms must be satisfactorily established by the evidence. Taylor v. Williams, 45 Mo. 80, 84; Underwood v. Underwood, 48 Mo. 527. And the execution of an undelivered deed is not evidence of a contract to convey. Freeland v. Charnley, 80 Ind. 132; Pulse v. Miller, 81 Ind. 190. Such contracts must be fair and honest, and not the result of a mistake of intention. Brix v. Ott, 101 Ill. 70; Pulse v. Miller, 81 Ind. 190. They must describe the land with certainty. Johnson v. Craig, 21 Ark. 533; Campbell v. Johnson, 44 Mo. 247; Alexander v. Hickox, 34 Mo. 496; Holme v. Strautman, 35 Mo. 293, 302, 303; Vasquez v. Richardson, 19 Mo. 96, 98. If a contract be not mutual and binding on both parties to it at the time of its formation, it cannot be specifically enforced at the request of either, and it is immaterial whether the lack of mutuality results from personal incapacity, nature of the contract or any other cause. Mastin v. Halley, 61 Mo. 196; Duvall v. Myers, 2 Md. Ch. 401; Sturgis v. Galindo, 59 Cal. 28. A party cannot state one cause of action in his pleading and recover on a different one. Waldhier v. Railroad Co., 71 Mo. 514; State v. Creusbauer, 68 Mo. 254; Dorman v. Intelligencer Co., 70 Mo. 168. This is applicable in equity suits, as well as to actions at law. Newhaver v. Kenton, 79 Mo. 382; Hitch v. Davis, 3 Md. Ch. 266. Dubach & Co. having expressly repudiated the pretended contract, it was the duty of plaintiff to have proceeded at once to enforce the rights they claimed. Waterman on Spec. Perf., §§ 469, 470, et seq; Fry on Spec. Perf., § 732; Banks v. Burnam, 61 Mo. 76.

Peak, Yeager & Ball and W. J. Scott for respondent.

The petition substantially alleges all the facts necessary for a recovery. It was not necessary for the plaintiffs to plead a written contract, one good at common is all that is required, and if the adverse party wish to set up the statute of frauds he must plead it or waive it. The defendants by their pleading waived the statute of frauds. Gist v. Eubank, 29 Mo. 248; Gardner v. Armstrong, 31 Mo. 535; Sherwood v. Saxton, 63 Mo. 78. The petition alleges that plaintiff had ever been ready and willing to perform its part of the contract, and he offered to bring the amount due into court. This was a sufficient tender. Brock v. Hidy, 13 Ohio St. 306; Diechman v. Diechman, 49 Mo. 109. It is only necessary to describe the land with reasonable certainty. Johnson v. Craig, 21 Ark. 533; Briggs v. Munchon, 56 Mo. 467. The plaintiff has not been guilty of laches. Landrum v. Union B'k, 63 Mo. 48; Bridshaw v. Yates, 67 Mo. 221. The defendants having contracted with respondent in its corporate capacity were estopped from denying its corporate existence. By their plea of the general issue, the defendants admitted the corporate existence of respondent. Nat. Ins. Co. v. Bowman, 60 Mo. 252; Farmers' Ins. Co. v. Needles, 52 Mo. 17; Farmers' etc. B'k v. Williamson, 61 Mo. 259; Brown v. Ilins, 27 Conn. 90. The memorandum required by the statute may consist of a single writing signed by the party or his agent, or it may be found in various writings or in letters. Moore v. Mountcastle, 61 Mo. 424; Cathcart v. Robinson, 5 Pet. 264; Huddlestone v. Briscoe, 11 Ves. 591. The decree was for the right party.

HENRY, J.

This is a suit wherein plaintiff asks that defendants be compelled specifically to perform a contract for the sale and conveyance of lot 55, Swope's addition, being the property situated on the northeast corner of Tenth and Walnut streets in Kansas City, Missouri, known as “the Cooley lot.”

The petition alleges that plaintiff is a corporation, etc., and that defendants, on the 30th of November, 1878, owned the lot above described. That on or about that day, plaintiff and defendants entered into an agreement by which plaintiff agreed to buy, and defendants to sell, said lot for $1,100, with condition, on defendants' part, that they should make a perfect title, and on plaintiff's part, to pay $25 as a preliminary deposit on account of purchase, and the balance upon delivery by defendants to plaintiff of a deed to said property, provided the title should be satisfactory to plaintiff. It alleges payment of said $25 as a preliminary deposit, and that said title was found satisfactory to plaintiff, and that afterwards, on or about the 15th day of January, 1879, defendants sold and plaintiff purchased said property, and have since demanded a deed which defendants refused to deliver. That plaintiff has ever been ready and willing to perform its part of said contract, and does hereby offer and agree to bring said balance, $1,075, into court to be paid to defendants, upon delivery to plaintiff of a satisfactory deed to said property.

The answer admits that on or about the 15th day of January, 1879, about one year before this suit was commenced, plaintiff demanded a deed of defendants, as alleged in the petition, and that defendants refused to execute it, and repudiated the pretended agreement sued on, as alleged by plaintiff, and denied every other material allegation in the petition.

On a hearing of the cause at the October term of the Jackson circuit court, a decree was rendered in plaintiff's favor from which this appeal is taken.

Appellants' first contention is that the suit should have been dismissed on their motion, because the petition was founded upon an instrument in writing charged to have been executed by defendants, which was not filed with the petition and not alleged to have been lost or destroyed. Section 3560, relied upon by appellants' counsel, has no application to this case. A written agreement is not alleged, nor was it necessary to allege that the agreement to sell was in writing. Gist v. Eubank, 29 Mo. 248; Gardner v. Armstrong, 31 Mo. 535; Sherwood v. Saxton, 63 Mo. 78. The statute applies to actions grounded upon instruments in writing which are declared upon, as such, and was not intended to abolish the rule of pleading which authorizes a plaintiff to declare upon a contract which, at common law, was valid though resting in parol, notwithstanding a statute subsequently requires such contract to be in writing.

Nor was it incumbent on plaintiff to prove its incorporation. The cases cited by appellants' counsel are authorities against their position. In Farmers and Drovers' Bank v. Williamson, 61 Mo. 259, plaintiff sued and obtained a judgment in a justice's court, from which an appeal was taken to the circuit court, and, in delivering the opinion of this court, to which an appeal was taken, Sherwood, J., said: “Even, however, did the rcord disclose this fact (that plaintiff is a corporation) it is not seen how this would help the defendants' case, for in trials before a justice of the peace, in the absence of anything to the contrary, the defendant is presumed to plead the general issue. This plea, as a matter of course, goes to the merits and admits the corporate capacity of the plaintiff and the ability to sue; and it would seem but reasonable that a corporation should occupy the same footing, in this regard, as a...