163 Mo. App. 328 | Mo. Ct. App. | 1912
The appeal in this case was prosecuted to this court, but was thereafter transferred by it to the Springfield Court of Appeals under the provisions of an act of the Legislature, approved June 12, 1909. [See Laws of Missouri 1909, p. 396; see, also, sec. 3939, R. S. 1909.] In due time the cause was disposed of by the Springfield Court of Appeals through an opinion prepared by Judge Cox of that court, as will appear by reference to Davis v. Barada-Ghio Real Estate Co., 145 Mo. App. 24, 129 S. W. 751. Subsequently, the Supreme Court declared the said
The case has been argued and submitted here, and upon due consideration, we find ourselves unable to concur in the view expressed by the Springfield Court in the opinion referred to.
The suit is one to recover damages for breach of contract, brought in the circuit court of the city of St. Louis. A trial being had there before a jury, the plaintiff had verdict and judgment for $3231.25', and the defendant has appealed. The contract alleged to have been breached was made and entered into in writing on May 16, 1901, between the defendant and one Stephenson. By its terms the defendant acknowledged the receipt of $1500 paid to it by Stephenson, and in consideration thereof agreed that, for the further sum of $23,500 to be paid, $1500 in thirty days and $22,000 in sixty days, it, the defendant, would sell and convey certain lands to Stephenson, title to be free and clear and conveyance to be made by good and sufficient warranty deed. The contract was assigned by Stephenson to John CL Hall, July 1, 1901, and by Hall to plaintiff on July 16, 1901. The defendant in its answer admits the making of the contract and that Stephenson made the first and second payments of $1500 each in accordance therewith, but the contract was not further and completely performed by the payment of the balance of the purchase price, $22,000, and the delivery of a deed conveying title free and clear. And to this, plaintiff avers that within sixty days from the date of said contract, to-wit, on July 14, 1901, he and his said assignors, were ready, able
The defendant in its answer admits that on July 14, 1901, there was of record the two deeds of trust described in plaintiff’s petition, but alleges that, at the date of making the contract and at all times thereafter, the plaintiff and his assignors had knowledge of the existence of both of them and made no objection thereto. That on or about July 15,1901, it, the defendant, was the owner and holder of one of said deeds of trust and had the funds provided with which to pay off and satisfy the other; that on or about said day this defendant called upon John C. Hall, who. then claimed to be the owner of said contract of sale or representing said L. B. Stephenson, and presented to him a duly executed deed conveying the real estate described in said contract and offered to deliver said deed to said Hall and to have both of said deeds of trust satisfied and released of record if said Hall or said Stephenson would express a willingness to pay to this defendant thereupon the sum of twenty-two thousand ($22,000) dollars, the remaining sum to be paid under said contract, but that said Hall thereupon informed the defendant that neither he nor said Stephenson had or could procure said sum of twenty-two thou
This same case was here before on appeal by the plaintiff from an order granting a new trial. [See Davis v. Barada-Ghio Real Estate Co., 115 Mo. App. 327, 92 S. W. 113.] The facts now presented by the record before us are substantially the same as were set forth by Judge Goode in the statement of facts forming part of the opinion of this court on that appeal, and for brevity that opinion is referred to for a fuller understanding of such facts. It was there held by this court that Stephenson’s agreement to pay and the defendant’s agreement to convey a clear title were concurrent and dependent conditions, and performance, or an offer to perform, by either party was essential to put the other party in default and lay the foundation for an action by the party who had performed, for damages or to enforce performance; that it was necessary to show that Stephenson or his assignee was ready and willing to perform the contract on his part and offered to do so, he being the one bringing the action, but it was not necessary for Stephenson actually to have tendered payment. “If Stephenson was willing and able to pay the purchase money and offered to do so and ITruska (defendant’s president) raised no objection to the offer because the cash was not proffered, the offer itself was performance by Stephenson.” Now on this appeal, which is by the defendant, the defendant complains of but two alleged errors, which we will state and dispose of in their order.
I. The first of these alleged errors is that the trial court erred in refusing to give defendant’s demurrer to plaintiff’s evidence, defendant contending that such demurrer should have been given because
By stating that the plaintiff or those under whom he claims must have made an “offer to perform” is not meant that he must have made an unconditional tender as in the case of a debtor to a creditor. “Under a contract which, as interpreted, calls for concurrent acts by the parties — for example, requires the one to convey to the other who is simultaneously to pay for it- — neither can maintain a suit against the other until he had done his part, or offered to do it on the other’s performing.” [Bishop on Contracts (Enlarged Ed.), sec. 1433.] It was incumbent upon the plaintiff or his assignors merely to offer to pay the money if the defendant would satisfy the deeds of trust of record and deliver a deed conveying clear title, and, as decided in this case on the former, appeal, it was not necessary that there be an actual tender of the money under the facts and circumstances of this case. And it was not necessary, we take it, for the offer to be made in any set form, or in language which expressly designated it as an offer. It was sufficient for the plaintiff or his assignor, being ready, able and willing to pay, merely to express to the defendant a willingness ■ to pay if the latter would do its part. And if the language used under the circumstances was such that the jury might well deduce such an expression of willingness from it, it was sufficient. Now, looking to Hall’s testimony, we find that ITruska came to his office, tendered him a deed and asked that Hall pay the $22,000. Hall asked him if the property was clear, and he answered that there were two deeds of trust on it. Hall then told him “to clear the deeds of trust off.” Now, if Hall had said to ITruska, “clear the deeds of trust off, then tender me the deed, and I will pay you the $22,000 as provided in our agreement,” there would, be no doubt that this was an offer on his part to perform on the defendant’s performing. And yet the very
We conclude that the jury were justified in inferring the necessary offer from Hall’s version of the transaction at his office, and the demurrer to the evidence was properly overruled.
II. The defendant next contends that “this court should reverse this case, because prejudicial error occurred on the trial of this cause, in that plaintiff’s counsel told the jury, directly and indirectly, throughout the trial, with the apparent acquiescence of the court, that the defendant could have laid the foundation for an action for specific performance against Stephenson during the time limited by the contract, if it had so desired, by paying off the deeds of trust that were on the land and tendering a sufficient deed to Stephenson.” The defendant fails to state how or in what connection this occurred or to point to any place
III. The Springfield Court of Appeals, by its opinion which we have mentioned, undertook to reverse and remand this case because the trial court erred in giving an instruction and in excluding certain testimony. Neither of those alleged errors was assigned by the defendant, nor did it make any point or argument as to them in its brief, either in the Springfield Court or here. This case has been twice tried to a jury and each time a verdict resulted for the plaintiff. We do not feel called upon of our own volition to seek out, notice or consider alleged errors which the defendant has not deemed of sufficient prejudicial effect to merit their being called to our attention.
The judgment is affirmed.