Forgey v. Gilbirds

262 Mo. 44 | Mo. | 1914

WILLIAMS, C.

This is a suit for specific performance of a contract whereby plaintiffs seek to compel defendant to join with the plaintiffs Sarah J. and Andrew J. Forgey in conveying to plaintiff Jacobs the title to 65 acres of land located in Pike county, Missouri. Defendant filed a general denial and in her answer, seeking affirmative relief, asked to have the written contract cancelled, on the grounds of fraud and misrepresentation in its procurement. Trial was had in the circuit court of Pike county, resulting in a decree in favor of plaintiffs and denying defendant the affirmative relief sought, and directing that the money derived from the sale he used in paying off the encumbrance. Defendant thereupon perfected an appeal. In 1904, appellant’s husband, John F. Gilbirds, died intestate, vested with the legal title to a tract of 840 acres of land situated near Bowling Green, Pike county, Missouri. The 65 acres involved in this suit, and known as the Home Farm, was a portion of said tract of land. Said Gilbirds left surviving him his widow, Mary V. Gilbirds (appellant herein), and two children, Sarah J. Forgey (respondent herein), and Noel F. Gil-birds. Sarah married Andrew J. Forgey (respondent herein) a short time before her father’s death. A few months before his death, said Gilbirds, his wife joining him, therein, executed two separate deeds of trust. One deed of trust to secure the sum of $18,000, covering all of said land except 120 acres; the other deed of trust for $800, covering the remaining 120 acres. Some time after the death of said Gilbirds, the widow and the heirs joined in making a sale and conveyance of about 140 acres of this land to a Mr. Quinn for $3600, which money was applied on the mortgage indebtedness. Later .a controversy arose between the widow and her children with reference to the division of the land and, as a result thereof, Sarah J. Forgey, joined by her husband, brought a partition suit to enforce an alleged parol partition agreement. It appears that as a defense to said suit the widow set up the claim that she had furnished the entire purchase price for said 840 acres of land at the time that it was purchased and the title taken in her husband’s name. A trial of this suit was had resulting in a decree in favor of the widow (appellant herein), and by said decree the legal title was divested out of the heirs of her said husband and vested in her. Mrs. Forgey thereupon perfected an ■appeal in said cause to this court.

A- few months thereafter, Mrs. Gilbirds, being-joined by her son Noel and his wife, executed a deed conveying all of their interest in and to the remaining 700 acres of this land to one Winn F. Morrow, of Kansas City, Missouri, in trust. Mr. Morrow was the father-in-law of Noel F. Gilbirds. This deed recited that all of the land conveyed belonged to Mary Y. Gilbirds except 160 acres thereof which belonged to Noel F. Gil-birds and his wife. The deed recited that the property was encumbered by the $18,000 mortgage; that there was then interest due to the amount of $720, and that Mrs. Gilbirds was indebted to a law firm in the sum of $800 for legal services, and also indebted to Maud M. Gilbirds in the sum of from $300 to $500. Said deed further stated that it was the desire of the first parties thereto to have all of said property managed by said Morrow and to subject portions of said land to sale for the purpose of discharging the debts in said deed mentioned and to provide for the final distribution and descent of said property. The trustee was empowered to take possession of, manage and control the property and to make sale of any portion or portions of the property, as he might see fit, for the purpose of raising funds with which to discharge the above-mentioned debts. The. instrument further provided that after said indebtedness was paid off in the above manner, the title of said real estate should revert as follows: The remaining portion of the land belonging to Noel and his wife should revert to them and be held by them as it was before the trust conveyance was made. The remainder of the property was to go to Mary Y. G-ilbirds for life with remainder over to Noel P. Grilbirds and his wife as tenants in common. At about this time, whether before or after the trust deed was executed to Morrow, it does not clearly appear, Mrs. Grilbirds had contracted to sell about 134 acres of this land to George W. Chappie for approximately $7000 and she also desired to make sale of about 160 acres of the land to her son Noel for the price of about $4400, which price was about $5000 less than its market value. After the property was conveyed to Mr. Morrow, Mrs. Gilbirds became dissatisfied with the arrangement provided in the trust deed; and was also unable to perfect title to the 134 acres contracted to be sold to Mr. Chappie and to the 160 acres to her son Noel, without Mrs. Porgey and her husband joining in making the conveyances. This, apparently, due to the fact that the appeal in the partition suit was pending in the Supreme Court and the purchasers were unwilling to pay the purchase price unless the Porgeys joined in the conveyance. In this situation, Mrs. Gil-birds employed an attorney for the purpose of aiding her in getting the title back from Mr. Morrow and to make general adjustment of the situation, whereby sales could be made of sufficient property to pay the indebtedness and title thereto delivered to the purchasers. .The attorney made a trip to Kansas City and then took the matter up with the attorney for the Porgeys with a view to making an entire adjustment of the situation. These negotiations continued for several weeks, finally resulting in the trustee, Mr. Morrow, making conveyance of all of said land, except the 160 acres owned by Noel and his wife, to Mary Y. Gilbirds (appellant herein) and Sarah J. Porgey (respondent herein). The deed provided that Mrs. Grilbirds should have a life estate in said real estate only and that the remainder in said property was vested in Sarah J. Forgey. As a part of the settlement, it was further agreed that the Forgeys would dismiss their appeal in the partition suit then pending in the Supreme Court. On the same day that this deed was executed, and as a part of the general adjustment of the situation, the following contract, dated April 28, 1909, was entered into by and between Mary V. Gilbirds as first party and Sarah J. Forgey and Andrew J. Forgey as second parties:

This contract made and entered into this 28th day of April, 1909, by and between Mary V. Gilbirds, party of the first part, and Sarah J. Forgey and Andrew J. Forgey, parties of the second part, and all being of Pike county, Missouri,

Witnesseth: Whereas, the real estate described in a certain deed made by Mary V. Gilbirds, Noel F. Gilbirds and Maude M. Gilbirds to Winn F. Morrow dated July 3, 1909, and recorded in book 142 at page 561 of the deed records of Pike county, Missouri, is encumbered by a certain deed of trust originally given to the Prudential Insurance Company of America, which deed of trust is recorded in Vol. 128 at page 118 of the deed records of Pike county, Missouri, and upon which deed of trust there now remains due and unpaid approximately a little over fifteen thousand dollars, and whereas there is another encumbrance of eight hundred dollars on a portion of said real estate which was given originally to the People’s Savings Bank of Bowling Green, Missouri, and whereas it is the intention of the parties to this instrument that the title to said lands shall be transferred from the said Winn F. Morrow back to said Mary V. Gilbirds during her life with remainder to her daughter, Sarah J. Forgey, and it is further the intention of the parties to this instrument that the encumbrance above mentioned, together with certain other debts which the said Mary V. Gilbirds is liable for,' which debts are mentioned in said deed from Mary V. Gilbirds et al. to Winn F. Morrow, shall be paid off or reduced as far as possible in the following manner, by applying the proceeds of the sale of about 184 acres of said lands to George W. Chappie on said indebtedness and also by applying the proceeds of the sale of 160 acres of said land to Noel F. and Maude M. Gilbirds on said indebtedness, it being the intention of the parties to this instrument to make suitable deeds to consummate the transfer of the title to said parties.

The said parties of the second part in consideration of the premises hereinafter mentioned agree and obligate themselves to pay of£ and discharge the remaining encumbrance against said land remaining after such transfers so mentioned shall have been made, under the conditions as hereinafter stated, so that in the end whatever lands there may remain shall be free and clear of any encumbrance now existing and to that end it is agreed by and between the parties hereto as follows: That the real estate mentioned in said deed to said Winn F. Morrow except those portions to be conveyed to George W. Chappie and to Noel F. and Maude M. Gil-birds shall be conveyed to Mary Y. Gilbirds for and during her natural life, the remainder, after her life estate to be vested in Sarah J. Forgey with this proviso, however, that in the event Sarah J. Forgey shall die before the said Mary V. Gilbirds, then such remainder shall revert back to said Mary V. Gilbirds and vest in her.

It is further agreed by the parties to this instrument that the the said Mary V. Gilbirds leases to the said parties of the second part all of said real estate the title to which remains in her for and during her natural life, at a fixed annual rental of three hundred dollars ($300) payable quarterly, the first installment of seventy-five dollars being due and payable immediately, and the second payment of seventy-five dollars to be due and payable on June 1, 1909, and the remaining installments of $75 at the end of each succeeding three months thereafter during the lifetime of the -said Mary Y. Gilbirds or until the termination of this lease by the death of Sarah J. Forgey before the death of said Mary V. Gilbirds, which contingency is the only event the happening of which will terminate this lease unless the same shall be terminated by the voluntary consent and agreement of all the parties to this instrument.

It is further understood and agreed that in addition to the payment of the $300 per annum rent the parties of the second part will pay and discharge all taxes against said land which may hereafter become due and payable during the existence of this lease.

•It is further understood and agreed that the parties of the second part will pay all necessary insurance premiums on the buildings on said premises and will look after keeping said premises in repair.

It is further understood and agreed that the party of the first part will give possession of said premises within a reasonable time and that said parties of the second part shall have the exclusive right to manage, control and lease said premises and collect all rents arising therefrom and receive the benefit of all the products of said premises during the continuance of this lease.

It is further understood and agreed that the parties of the second part shall have the right to sell all or any portion of said premises either for the purpose of applying the proceeds of such sale or sales to the discharge of the remaining encumbrances against said premises or for the purpose of reinvesting, and the said party of the first part agrees to join in all necessary deeds to carry out such contract of sales as may be negotiated by said parties of the second part, it being the desire and intention of all of the parties to this instrument that so much of the real estate which» shall be conveyed back to Mary V. Gilbirds by the said Morrow shall be sold as soon as practicable and on the best terms obtainable in order that the encumbrance which remains against said lands shall be paid off and discharged to the end that whatever remains of said lands, the title to which shall be in said Mary V. Gilbirds and Sarah J. Forgey, as above stated, may be free and clear of encumbrance.

It is further understood and agreed that whatever sales of any portion of said premises may be consummated by said parties of the second part the proceeds of the same shall be devoted and applied to the payment and extinguishment of the encumbrances now existing on said premises until the same shall be fully discharged,, and it is further agreed that this lease shall continue and remain in force during the natural life of said Mary Y. Gilbirds unless sooner terminated by the mutual consent and agreement of all parties hereto or by the death of said Sarah J. Forgey happening before the death of said Mary Y. Gilbirds.

It is further understood and agreed that all existing contracts for the leasing of all or any portion of said premises shall enure to the benefit of the said parties of the second part and they shall have the right to collect from said tenants who may be holding by existing leases whatever rents may be due from them for the use of said premises.

In witness whereof the parties have .hereunto set their hands to this and a duplicate contract on the day and date above written.

(Signed) Mart V. Gilbirds,

Sarah J. Forgey,

A. J. Forgey.

At the time this contract was made Mrs. Gilbirds was 67 years old, Mrs. Forgey 31 years old and Mr. Forgey 61 years of age.

In order to assist in consummating the settlement, Mr. Forgey advanced to Mrs. Gilbirds’ attorney the sum of $1250, the greater portion of which was used in paying off obligations of Mrs. Gilbirds which were mentioned in the trust deed to Mr. Morrow. After the foregoing contract was executed all the necessary parties joined in making conveyances of the land to Mr. Chappie and to Noel F. Gilbirds to the 160 acres and the proceeds of these two sales were applied on the mortgage indebtedness, reducing the same to approximately $5000, and arrangements were made by which a local bank of Bowling Green became the purchaser of the balance of said mortgage indebtedness. Mr. Forgey took charge of the land, improved some of the fences, placed a tenant on the home tract and rented a greater portion of the farm to tenants and exercised general supervision over the farm; collected rents; paid the accrued interest on the loan, the insurance on the buildings and the taxes on the land during the years 1909 and 1910. In July, 1910, said Andrew J. Forgey entered into a contract with George W. Jacobs (one of respondents herein), whereby said Forgey agreed to sell and convey to said Jacobs for the sum of $7500 the 65 acrés now involved in this law suit. Mrs. Forgey did not join with her husband in making the contract of sale .with Jacobs but later executed a separate, written ratification of said contract, directing that said written ratification be • attached to the original contract between Mr. Forgey and Mr. Jacobs. Mr. Forgey had been attempting to make a sale of the home tract for some time and had received an offer of $100 per acre for the same from another party and finally made the foregoing agreement whereby the purchase price was fixed at $115 per acre. When the time came for consummating’ the deal and making the conveyance of the property to said Jacobs, Mrs. Gilbirds refused to sign the deed and thereafter this suit, was instituted. The evidence shown that Mr. Forgey collected as rents from the tenants on the farm in cash rents and grain rents an average of about $865 for each of the years of 1909 and 1910. That he paid Mrs. Gilbirds each year the sum of $300, as provided in the contract, and six per cent interest on the $5800 encumbrance amounting to $348 per year. This would leave in his hands each year the sum of approximately $225, out of which he had to pay the taxes, insurance and repairs. The evidence does not show what these last items amounted to each year. The evidence on the part of the Forgeys tended to show that they had complied in full with their part of the contract with Mrs. Gilbirds; and in addition, had offered to let her come to their home and live, which she did for a few weeks, and that they had purchased a home for her near their home in Paynesville, Missouri, and had asked her to send for her household goods, move into the house and occupy it as her home, but that she refused to move into the house. Mrs. Forgey testified that she had given her mother several dresses and considerable clothing-, and that before the contract was signed she had told Mrs. Gilbirds’s attorney that she would always take cafe of her mother and that she would not want for anything. The evidence on the part of Mrs. Gilbirds was to the effect that before she signed the contract she made objection to the amount of $300 being provided for her support, and made the statement that it was not enough for her to live on and that her daughter told her that the $300 was a mere matter of form and that she would see that she would never want for anything, and that after the contract was signed she was treated coolly when she went to live at her daughter’s house; that she did not blame her daughter for this but blamed her daughter’s husband. That Mr. and Mrs. Forgey owned a general store a Paynesville and that she purchased some small articles at different times and that each time Mr. Forgey paid her the quarterly rent of $75 he deducted therefrom the amount of her bill at the store. She denied that Mr. Forgey had purchased the home for her at Paynesville, but admitted that they had invited her to use it as her home. The evidence further showed that Mrs. Gilbirds, aside from her interest in the farm, owned an equity in a city lot in Bowling Green, Missouri, diamonds valued at $4000 and household furniture.

The following excerpts are fair samples of the testimony of Mrs. Gilbirds concerning the contract, etc. :

£ £ Q. Did you or did you not believe the statements made to you by your daughter, that that $300 consideration didn’t amount to anything, and that she would see that you wanted for nothing? A. Yes, sir, I certainly did, or I never would have signed it in the world.

‘ ‘ Q. Coming hack to the question: What did Mrs. Forgey say to you at my residence that Sunday afternoon, which you say deceived you? A. She didn’t say so much at your residence, except to state that she wanted me to have my own spending money, that the $300 wasn’t enough for me to live on, and that she would give me all I wanted, and she said, ‘I will get your clothes and things, and they shan’t cost you anything. ’

“Q. All that Mrs. Forgey said, was that she wanted you to have your own spending money, and you know that I will take care of you? A. Yes, sir.

“Q. That’s all she said? A.- Yes, sir, I think that’s all she said.

“Q. That, you think, was an inducement for you to sign the contract? A. She offered me more, she said, ‘You come down and live at my home, and I will malee you comfortable. ’

“Q. Did that influence you to sign the contract? A. No, sir, because I knew if things didn’t suit me there I wouldn’t stay—

“Q. That was a bad contract, this contract of April 28,1909, that was a cut-throat contract, I believe you stated? A. Yes, sir.

“Q. When did you make up your mind that it was? A. I made up my mind that it was before. I signed it.

“Q. You admit, then, that you read the contract over three times before you signed it? A. I.read the lower part where he was to get my crops and everything from the place.

“Q. You read that? A. Yes, sir.

“Q. Ton still say it was a week or ten days before yon actually signed it, and during that time you saw the contract, you called at Judge Gray’s office and saw the contract, you say,-three times, and read it; is that right? A. I guess so, if you say so.

“Q. I am not saying anything; I am asking you about it. A. I don’t scarcely know. I looked at it at least three different times, in case that I wanted to read it, but I don’t know that I read it that many times, and I thought she would be good and kind to me, -and that her husband would treat me nice and kind, I thought she would do it again, and I signed the contract, and I found out that they didn’t do as they had agreed and their treatment was cold—

“Q. Mrs. Gilbirds, Mrs. Forgey on the witness, stand said that she had always given you whatever you needed; state to the court whether she has provided all you want or not. A. No, sir, and she knows it too well; she has given me some little things that wasn’t charged to me, but I think nearly everything I got there was charged to me, and it was deducted from that $75 I was to get every quarter.

“Q. Was everything that you bought at the store charged against you? A. Yery near all, except what she gave me.

“Q. What was the nature of the things that she gave you? A. She gave me one very fine lace waist that she made out of her old one, and that I appreciated very much, and she gave me some two or three little things.

“Q. ' I want you to tell the court just what she has given you as near as you can remember? A. She has given me some very nice things! I don’t remember, not many, but we were always exchanging presents between us; she gave me a very nice coat in St. Louis, and I was very proud of it, and which I still have; and she paid my hotel hill once or twice, and several little things.

“Q. What has she done towards paying yonr house rent and your grocery hills and clothing here in Bowling Green? A. She paid one month’s rent, and she moved me off the farm.

“Q. And that’s all she paid? A. Yes, sir.”

Appellant’s grounds for reversal when reduced to their last analysis are as follows:

1st. The contract of April 28,1909, should he can-celled because unconscionable, unsupported by an adequate consideration and was procured by false representations.

2nd. If the contract is not to be cancelled yet it should not be enforced because:

a. Of want of mutuality.

b. It is too indefinite to be enforced by a court of equity.

c. The Forgeys have failed to perform the same.

d. The power of sale if valid could only be exercised by the joint action of Mr. and Mrs. Forgey whereas Mr. Forgey alone contracted for the sale to Jacobs.

These propositions will be discussed in their order.

Cancellation of Contract Asked for Fraud, etc. I. It is contended that the contract set forth in the foregoing statement should be cancelled because it is an unconscionable contract, unsupported by an adequate consideration and was procured by fal>se representations. In supporting this point, appellant contends that for the sman outlay of $300 annually during the remainder of Mrs. Gilbirds life, the Forgeys obtained from Mrs. Gilbirds the rents and profits from this large tract of land during the lifetime of Mrs. Gilbirds and upon her death the remainder in fee to become vested in Mrs. Forgey. A careful review of the evidence, however, discloses that the above is not an accurate statement of the situation either with reference to what was surrendered by Mrs. Gilbirds or with reference to what was surrendered by the Forgeys as consideration for the agreement. The defect in the statement is that it assumes that prior to the agreement Mrs. Gilbirds was the owner of the fee simple title to said land and further assumes that the sole consideration coming from the Forgeys was the annual payment of $300.

The contract of April 28, 1909, between Mrs. Gil-birds and the Forgeys and the deed of even date from Morrow, as trustee, to Mrs. Gilbirds and Mrs. Forgey must be considered in the light that they were parts of one transaction, because they were both executed as the final adjustment of the unfortunate condition of affairs existing between all. the parties owning, or claiming to own, an interest in the land (excepting, of course, the mortgagees); and in determining the question of adequacy of consideration the situation should first be viewed with reference to the conditions existing prior to said final adjustment. Turning to the evidence in this regard, we find that, at that time, Mrs. Gilbirds instead of owning the fee simple title to the land (as appellant would seem to assume), owned only an equitable life estate in that portion of the land remaining after sufficient of the land should be sold to satisfy the existing encumbrances; the legal title, together with the right to possession of the land and to collect the rents and profits, was in Mr. Morrow, as trustee, and the equitable fee simple estate in remainder was in Noel Gilbirds and wife as tenants in common. In addition to this an outstanding cloud upon the title existed by reason of an appeal having been taken by Mrs. Forgey from the decree in the partition suit, by which decree the title had been divested from the heirs of John Gilbirds (one of whom was Mrs. Forgey) . and vested in Mrs. Gilbirds. In that situation, conveyance of any of the property was deadlocked; interest was accumulating on the encumbrances; Mrs. Gilbirds was receiving no income whatever from the land, and foreclosures under the mortgages were imminent. By virtue of the general adjustment which culminated in the contract in question the Forgeys agreed to and did dismiss the appeal in the partition suit above referred to and agreed to join in the conveyances, thereby clearing the way to make title to the land, so that, for the purpose of satisfying the encumbrances, portions of the land could be sold at private sale and the hazard of sacrifice incident to sale under foreclosure be avoided; Mr. Forgey advanced the sum of $1250 with which to satisfy certain claims against Mrs. Gilbirds which were mentioned in the deed to Morrow, trustee; Mrs. Gilbirds retained her life estate the same as before and in addition thereto the contract provided that in the event Mrs. Gilbirds should survive Mrs. Forgey the remainder in fee should thereupon vest in her, otherwise to be in Mrs. Forgey. By said contract the Forgeys became the lessees of the land for the rental of $300 per year, the lease to terminate upon the death of Mrs. Forgey, if Mrs. Gil-birds was then living. The Forgeys further agreed to pay all taxes, insurance on buildings, and to keep the premises in repair. As will be noticed from the statement of facts set forth above, the average annual income remaining in the hands of the Forgeys after payment of the rental and interest was.approximately the sum of $225, out of which they were obligated to pay the taxes and insurance, and to keep the premises in repair. "What these additional items would total does not appear, but the amount remaining would certainly be very small. The contract further undertook to vest in Mr. and Mrs. Forgey the power which had just prior thereto been vested in Morrow, trustee, to-wit, the power to make contracts for the sale of sufficient of said lands to pay off the existing encumbrances.

Appellant contends, however, that the appeal taken from the decree in the partition suit was not taken in good faith bnt that said appeal was without merit and was taken for the purpose of harassing appellant and unfairly coercing her to sign the contract. If this were true, it would undoubtedly so color the transaction with fraud and unfair dealing as to cause a court of equity to give relief. But the contention must fail because it is not supported by the evidence. It is true, no doubt, that the right of appeal exercised by Mrs. Forgey did exert a strong influence in producing the contract in question. As much is conceded by respondents. But this does not prove that the appeal was without merit or that it was impelled by bad faith. This, because an appeal in good faith and upon meritorious grounds would also produce that result. The record in the present case is silent with reference to the merits or demerits of Mrs. Forgey’s rights under the then pending litigation, and we are therefore unable to say that it was without merit and promoted in bad faith.

With reference to the claim of false representations, the testimony of both Mrs. Forgey and Mrs. Gil-birds was, in .substance, that before the contract was signed Mrs. Gilbirds objected to the contract on the ground that the $300 ‘provided for her was not sufficient to keep her and that Mrs. Forgey stated that the $300 was only a matter of form and that she wonld see that her mother was amply provided for. From aught that appears in the evidence, there is nothing to show but that this promise was made in good faith. The daughter admits that she made the promise and insists that she has carried out that promise and has helped her mother all that she would permit. Mrs. Gil-birds does not claim that her daughter has refused in any particular to live up to that promise but admits that her daughter has given her some outside aid. She further admits that the daughter asked her to make her home with the daughter and her husband at Paynesville, which she did for several weeks, and that afterwards Mr. Forgey offered her the use of a residence property at Paynesville and offered to move her furniture there so that she might keep her own home, but this offer she refused. The main fault that Mrs. Gilbirds found with the Forgeys, with regard to the failure of her daughter to furnish her outside aid, appears to arise from the fact that some small articles which she purchased at Mr. Forgey’s store were charged to her and that Mr. Forgery kept the amount of the bill out of her rent money. The evidence does not disclose what these items were. Neither does the evidence disclose that these were called to the attention of Mrs. Forgey and that she refused to pay them. It is true that there were differences arising between the parties after this contract was signed, but upon a careful review of the testimony, the impression prevails that these conflicts were the result of a personal dislike which Mrs. Gilbirds entertained for Mr. Forgey, rather than because of a failure upon the part of Mrs. Forgey to supply Mrs. Gilbirds with necessary additional support.

We have painstakingly read the entire evidence in this case and have carefully considered all suggestions of counsel in their briefs, and while the writer is free to admit that upon first impression we were inclined to look with suspicion upon the entire transaction, because of the peculiar relationship of the parties, yet upon the ascertainment of the true situation, as disclosed by the entire record before us, we have no hesitancy in saying that the action of the court was proper in refusing to decree a cancellation of the contract.

Specific Performance: Mutuality: Definiteness. II. Was the decree of the court proper in directing specific performance? Upon due consideration, we have reached the conclusion that this question must be answered in the affirmative. In insisting' ^-ia^ ^ie coi;ir^ erre(I in this regard, appellant, in one portion of her brief, handles qUestion on the theory that the written contract of April 28th is the only written document upon which the prayer for specific performance is based, and in another portion of her brief considers the question from the viewpoint that the contract between the Porgeys and respondent Jacobs is the sole contract sought to be enforced. Neither hypothesis is correct. Both contracts are to be considered together in determining that question. Respondent’s theory is that Mrs. Gilbirds, by her contract of April 28th, authorized and empowered the Porgeys to make a contract of sale of the land, for the purpose of reducing or satisfying the existing encumbrance, and that in exercising the power thus given they entered into the contract with Jacobs, which, when read in con-' nection with the contract of April 28th, obligated Mrs. Gilbirds to join in the conveyance and obligated - Jacobs to purchase the land. That portion of the contract of April 28th giving the Porgeys the power to make contracts for the sale of the land was as follows:

“It is further understood and agreed that the parties of the second part shall have the right to sell all or any portion of said premises either for the purpose of applying the proceeds of such sale or sales to the discharge of the remaining encumbrances against said premises or for the purposes of reinvesting, and the said party of the 'first part agrees to join in all necessary deeds to carry out such contract of sales as may be negotiated by said parties of the second part, it being the desire and intention of all of the parties to this instrument that so much of the real estate which shall be conveyed back to Mary V. Gilbirds by the said Morrow shall be sold as soon as practicable and on the best terms obtainable in order that the encumbrance which remains against said lands shall be paid off and discharged to the end that whatever remains of said lands, the title to which shall be in said Mary V. Gilbirds and Sarah J. Forgey, as above stated, may be free and clear of encumbrance.”

Undisclosed Principal. The above clause undoubtedly constituted the Forr geys the agents of Mrs. Gilbirds to make contracts for the sale of the land with power to fix the price of the land. The only words that in any manner undertake to limit their power to fix the sale price are the words expressing that it was ‘the desire and intention of the parties that the land should be sold “as soon as practicable and on the best terms obtainable.” The evidence shows that the price for which the Forgeys agreed to sell the land to Jacobs was the best offer they had, after having the property on the market for several weeks, and it would appear from the evidence that said price was fair and reasonable and was the best price obtainable under the circumstances. The Forgeys acting for themselves with reference to the interest which they personally had in the land and as the agents for Mrs. Gilbirds, with reference to her interest therein, entered into the written contract of sale with respondent Jacobs. The terms of the contract with Jacobs definitely fixed the price and correctly described the land to be sold. Under those circumstances, a contractual relation arose which would give respondents the right to insist that Mrs. Gilbirds perform her written agreement to join in the conveyance. The rule is well settled that specific performance may be enforced either by or against an undisclosed principal when his duly authorized agent, in his own name, within the scope of his agency, contracts concerning the sale or purchase of the land. [Pomeroy on Contracts (2 Ed.), sec. 89, and notes; Kelly v. Thuey, 143 Mo. 422, l. c. 438; Randolph v. Wheeler, 182 Mo. 145, l. c. 154-155.]

In view of the above rule, the contention of appellant that Mrs. Gilbirds could not have enforced the contract against respondents, and that the relief sought must fail for lack of mutuality in the contract, cannot therefore be allowed.

The error of appellant’s contention that the contract is too indefinite, because it does not fix the price at which the land shall be sold, arises from the fact that she looks only at the clause of the contract of April 28th giving the agents the power to sell, instead of looking at the consummated act of her agents, the written contract with Jacobs, which* does definitely fix the price and terms of sale.

It is further contended that the contract should not be enforced because the Porgeys have not performed their part of the contract of April 28th. In this regard appellant contends that by said contract the Porgeys' obligated themselves to pay off the encumbrances out of their own means. This is based upon that clause of the contract which reads: “The said parties of the second part in consideration of the premises hereinafter mentioned agree to obligate themselves to pay off and discharge the remaining encumbrances against said land remaining after such transfers so mentioned shall have been made, under the conditions as hereinafter stated,” etc. The italicised portions of the above quotation clearly show that the obligation to pay was not from their individual resources, but on the other hand expressly refer to the terms of the contract “hereinafter mentioned” and under the “conditions hereinafter mentioned,” and it would indeed be a forced construction to give to said clause any greater effect than that they were bound to see that the moneys derived from the sale of portions of the land should be applied upon the encumbrances, or, at most, perhaps to obligate the Porgeys to prevent foreclosure of the property until sufficient of the land could be sold to satisfy the mortgages.

It is further contended that the power of sale in the Porgeys, if valid and binding, could only be exercisecl by botb of them acting together and that whereas Mr. Forgey acting alone made the contract with Jacobs, Mrs. Gilbircls did not become bound thereby. In this contention, appellant overlooks the important fact of the written ratification of the contract by Mrs. Forgey before this suit was instituted. By her written ratification of the contract, it became the joint action of herself and husband and leaves the contention without sufficient ground upon which to stand.

The judgment is affirmed.

Boy, G., concurs. PER CURIAM.

The foregoing opinion of Williams, C., is adopted as the opinion of the court.

All the judges concur, except Far is, J., not sitting.

Case Details

Case Name: Forgey v. Gilbirds

Court Name: Supreme Court of Missouri

Date Published: Nov 24, 1914

Citation: 262 Mo. 44

Court Abbreviation: Mo.