145 Mo. App. 24 | Mo. Ct. App. | 1910
Action for damages for breach of contract to convey real estate. Trial by jury, verdict for plaintiff, and defendant has appealed. On the 16th day
This is the second appeal in this case, the first being reported in the 115 Mo. App., page 327, 92 S. W. 113, and on that appeal it was held that the payment of the second fifteen hundred dollars within the time prescribed in the contract took the optional feature out of the contract, and it then became a binding contract between the parties for the conveyance of the land on the part of defendant and for the payment of the purchase price on the part of the plaintiff. It was also held upon the former appeal that it was the duty of defendant to furnish a clear title, and that plaintiff was not bound to pay the purchase price until the title was clear.
It was also held that the provision to pay by plaintiff and to convey by defendant were concurrent and dependent provisions, and to maintain an action for breach of the contract by either party, a tender or an
Prom this it appears that plaintiff, in order to sustain this action, was bound to show that he had offered to perform before bringing this suit and defendant had failed to perform upon its part.
In the second trial the court apparently attempted to follow the decision of the St. Louis Court of Appeals on the former appeal, but evidently misunderstood what was decided in that case. In the second trial the court proceeded upon the theory that it was the duty of defendant to have paid off the encumbrances upon the land, on or before the 15th day of July, 1901, at which time the deed was to be executed'and the money paid for the land, and, in conformity with this view of the case, the court gave the following instruction on behalf of plaintiff:
“The jury are instructed that it was the duty of the defendant, under the contract read in evidence, to have the property therein described, free and clear of liens or encumbrances, on the 15th day of July, 1901, and it is not material in this case who owned the deeds of trust read in evidence at that time, nor whether or not the defendant might have procured their release upon the record after that date.”
The evidence in this case as to what transpired on July 15th is conflicting, plaintiff’s evidence tending to show that he was ready and willing to pay the balance, twenty-two thousand dollars, providing defendant would pay the mortgages and furnish him a deed conveying a clear title. The testimony on the part of defendant so far as the court admitted it tended to show that defendant tendered a deed on that day and offered to release the encumbrances, but that plaintiff was then unable to pay and so stated to defendant’s agent.
The court seems to have taken the view that time was of the essence of this contract and that the rights of the parties were to be determined in this action by
In the trial of this case the court excluded the testimony offered by defendant as to its ability to remove the encumbrances at the time it claims to have offered to perform. This was error also. Under the facts in this case the plaintiff could not maintain his action without showing that he had either made a tender npon his part, or an offer in good faith to perform, coupled with the ability to perform, and the defendant could defeat plaintiff’s action by showing that he had made a tender or an offer in good faith to perform, coupled with the ability to do so, and that plaintiff had not subsequently thereto offered in good faith to perform upon his part, and if either party sought to rely upon an offer to perform instead of a formal tender, he should not only show that he stated to the party that he was willing to perform, but he should also prove that at the time he offered to perform he was able to make his offer good; hence, evidence as to the ability of plaintiff to pay the twenty-two thousand dollars at the time he offered to do so, if he made the offer, should have been admitted, and evidence of the ability of the defendant to remove the encumbrances, if he offered to do so, should also have been admitted, and the parties, plaintiff and defendant, should have- been permitted to show that their respective offers to perform were made at any time before the commencement of this action, and should not have been confined to the 15th day of July as was done in this case, and either party should have been permitted to prove any fact that would tend to show that the alleged offer to perform by his adversary was not made in good faith.
It is contended upon this appeal that defendant’s demurrer to plaintiff’s testimony should have been sustained. This question does not seem to have been raised in the former appeal, and in the first trial of the case a verdict was rendered in favor of plaintiff. A motion
For the errors noted, the judgment will be reversed and the cause remanded.