| Mo. Ct. App. | May 19, 1915
Lead Opinion
The .plaintiff (appellant) filed a petition in the circuit court of Newton county seeking specific performance of a contract for the sale of real estate alleged to have been entered into between William C. Warren and his wife Mary Warren on the one side and Thomas F. Coyne on the other, Coyne being the alleged prospective buyer. The theory of his cause of action is, as shown by his petition, that plaintiff acquired an interest in the transaction by reason of his having negotiated a sale of the real estate; that is, he claimed a two thousand dollar interest, that
General demurrers were filed by the Warrens and by Coyne which were sustained by the trial court. The plaintiff refused to plead further and appealed from that action of the trial court to the Supreme Court.
The petition is a lengthy one, but enough of it is set forth in the opinion rendered by the Supreme Court on March 2, 1915 (Frye v. Warren et al., 264 Mo. 281" court="Mo." date_filed="1915-03-02" href="https://app.midpage.ai/document/frye-v-warren-8019172?utm_source=webapp" opinion_id="8019172">264 Mo. 281, 174 S. W. 391), to show the theory on which plaintiff seeks to recover. The Supreme Court held that plaintiff did not state a cause of action entitling him to the relief of specific performance and that the amount involved is less than that required to give the Supreme Court jurisdiction of the appeal. The petition including the prayer, and the taking of an appeal to the Supreme Court when two thousand dollars is the maximum amount of judgment that could be rendered, show that plaintiff attempted to state facts that would entitle him to the equitable relief of specific performance and that the plaintiff did not attempt to state a cause of action sounding in tort seeking damages on account of an unlawful conspiracy. It is said in Humphreys v. Atlantic Milling Co., 98 Mo. l. c. 553, 10 S. W. 140: “Our conclusion is that under our practice act, the plea of remedy at law in a suit in equity is unknown. It has no place under our system of pleading. ’ ’ In Rush v. Brown, 101 Mo. l. c. 592, 14 S. W. 735, appears the following: “Parties who wish to change or enlarge their demand for relief should do so by amendment or otherwise while the cause is before the trial court, at least in those instances where the case goes off upon demurrer, for the general provision permitting the
Under the law as declared in the foregoing cases,, the judgment must be affirmed.
Concurrence Opinion
In the case of Sidway v. Mo. Land & Live Stock Co., 163 Mo. 342" court="Mo." date_filed="1901-06-11" href="https://app.midpage.ai/document/sidway-v-missouri-land--live-stock-co-8013992?utm_source=webapp" opinion_id="8013992">163 Mo. 342, 372, 63 S. W. 705, the court said: ‘ ‘ The primary duty to make the pleading clear and unequivocal is on the party who drafts it; he it is, who without motion or suggestion from his adversary, on whom rests the onus of making the pleading definite and certain, which burden cannot be cast on the adversary, by the fault of the pleader failing to perform his own duty. And notwithstanding pur statute (section 629), requires pleadings to be liberally construed, etc., this only extends to the form of the pleadings, and does not apply to the fundamental requirements of a good pleading, and the pleader is not allowed now, any more than formerly, by inserting doubtful or uncertain allegations in a pleading, to throw upon his adversary the hazard of correctly interpreting its meaning.” The petition in this case certainly does not conform to this requirement and abounds in statements of purely legal conclusions rather than of facts. I agree that the demurrer ought to be sustained on the grounds stated by Farrington, J.
It seems to me, however, that the demurrer should have been sustained on another ground. The Supreme Court having held that plaintiff’s petition does not state facts entitling him to a specific performance of the contract for sale by one and purchase by the other defendant of the land in question, whereby plaintiff would receive $2000 and defendant Warren $5000 of the contract price, that question is out of the case. We are now asked to hold that the petition states a cause of action for damages for the wrongful refusal of defendants, or some of them, to carry out the contract for sale and conveyance of the land. As the plaintiff states in his petition that without specific performance “plaintiff can have no adequate legal right or remedy against either of them (defendants) for the recovery
Let ns look, however, at another phase of the case, particularly with reference to the liability of defendant Coyne. The case is here, on briefs only and we must also, as stated by the Supreme Court, analyze the petition and interpret plaintiff’s contention as best we can without the aid of oral argument. As we understand plaintiff, he contends that it is- not material whether his cause of action be in tort, for violation or inducing another to violate a contract of sale, or ex contractu, based on the contract of defendant "Warren to pay him a commission; that all that plaintiff is required to do is to state the facts and the rest is for the court. There is certainly nothing of an equitable nature left in the case unless the court can make the damages assessed, either ex contractu or ex delicto, a lien on the land as is prayed for. We find nothing, however, in the briefs or petition suggesting how or why this should be done. Certainly any judgment for damages against defendant Coyne, based on his refusal, or his wrongful' participation in Warren’s refusal, to carry out this contract to purchase, cannot be made a lien on Warren’s land.
Can defendant Coyne be held liable on any theory of the case? I think not. There is no contractual relation disclosed between Coyne and plaintiff. He must be held, if at all, for refusal to carry out the contract of purchase or for wrongfully participating in Warren’s refusal to carry out such contract. There are cases holding that, where a person wrongfully refuses to carry out his contract or induces another to do so whereby plaintiff suffers a loss, he has an action against the wrongdoer; but I do not think that principle can be applied here. Plaintiff’s petition is certainly bottomed on the theory that defendants Coyne and Warren made a valid contract of sale of this land—
Of course, if Warren, the vendor, refused, with or without cause, to consummate the sale under such circumstances, he is liable on his contract to plaintiff for his commission. His refusal alone creates a cause of action in favor of the broker. [Sallee v. McMurry, 113 Mo. App. 253" court="Mo. Ct. App." date_filed="1905-06-01" href="https://app.midpage.ai/document/sallee-v-mcmurry-8263959?utm_source=webapp" opinion_id="8263959">113 Mo. App. 253, 264, 88 S. W. 157; Herrick v. Woodson, 143 Mo. App. 258" court="Mo. Ct. App." date_filed="1910-04-04" href="https://app.midpage.ai/document/herrick-v-woodson-6624916?utm_source=webapp" opinion_id="6624916">143 Mo. App. 258, 264, 127 S. W. 391; Brown v. Smith, 113 Mo. App. 59" court="Mo. Ct. App." date_filed="1905-05-16" href="https://app.midpage.ai/document/brown-v-smith-8263940?utm_source=webapp" opinion_id="8263940">113 Mo. App. 59, 68, 70, 87 S.W. 556" court="Mo. Ct. App." date_filed="1905-05-16" href="https://app.midpage.ai/document/brown-v-smith-8263940?utm_source=webapp" opinion_id="8263940">87 S. W. 556; Ennis v. Eager, 152 Mo. App. 493" court="Mo. Ct. App." date_filed="1911-01-16" href="https://app.midpage.ai/document/ennis-v-eager-6626878?utm_source=webapp" opinion_id="6626878">152 Mo. App. 493, 133 S. W. 850.] The fact that defendant Coyne also refused to carry out the contract could not affect Warren’s liability. That is fixed by Warren’s refusal. It would seem, therefore, that, the plaintiff, according to his petition, having procured a purchaser, Coyne, who is able to purchase and was accepted by Warren and who made a valid contract of ;sale affording a basis for specific performance, there is no reason shown why plaintiff did not bring suit in the ordinary way against Warren.
There is then no liability against Coyne, jointly with Warren or severally, because of hi's refusal to carry out his contract or for his aiding and inducing Warren to do so. As said in Bird v. Rowell, 180 Mo. App. 421, 425, 167 S. W. 1172: “Under the facts of this case, before plaintiff can recover of defendant the commission Wolfe (Warren) agreed to pay, he must show that Wolfe (Warren) cannot be held liable therefor and that defendant’s act caused such nonliability.” It is there held that because the vendor, Wolfe there and Warren here, is liable to the broker for the reasons above'stated, it cannot be said that Coyne’s refusal has caused plaintiff to lose anything. Coyne has not, by his refusal to carry it out after making a valid contract, destroyed or impaired plaintiff’s right to sue and recover from Warren. Plaintiff has not been damaged
The same would be true of Coyne’s act in conspiring with and aiding or inducing Warren to refuse to carry out his contract. That would in nowise change Warren’s liability or lose Coyne anything.
Nor would it be different as to Coyne, or make Mm liable for his refusal, if there is no valid contract for purchase of the land enforceable by Warren against him. That showing would merely disclose that plaintiff had not procured a purchaser willing to buy. A prospective purchaser has a right to abandon the purchase without liability, at any time before he makes a binding contract and he is not a willing purchaser,. witMn the meaning of the law, unless he is willing to the extent of consummating the sale or to make a binding contract to do so. “Upon what theory can plaintiff claim damages against defendant for causing plaintiff to lose his pay for service rendered Wolfe (Warren) unless defendant did some wrongful act wMch prevented plaintiff from recovering from Wolfe (Warren). If the contract plaintiff obtained was no contract, how was defendant’s refusal to perform it a wrongful act for which he could be held liable in damages?” [Bird v. Rowell, supra, l. c. 429.]
Under no theory, therefore, can defendant Coyne be held liable and his demurrer was properly sustained.