208 Mo. 652 | Mo. | 1907
The plaintiff, William H. Gottfried, brought his suit in the Greene County Circuit Court against the defendant, Martha Bray, alleging^ that on the 29th day of June, 1903, defendant agreed in writing to sell to him certain real estate situated in the city of Springfield, which alleged agreement is as follows: “50.00. Received from William H. Gottfried the sum of fifty dollars, the same being part of purchase price of the east fifty feet of the lot or tract of land now and for many years past owned and occupied by me as a residence and situated on East Walnut street, on the north side of the street, between Jefferson and Kimbrough streets, in the city of Springfield, Greene county, Missouri. Said lot so purchased by said Gottfried has a frontage of fifty feet on Walnut street with a depth of two hundred and twenty-six feet. The purchase price of said lot is to be fifty dollars per front foot on Walnut street, and is to be due and payable when I tender to said Gottfried a,n abstract of title showing perfect title in me, together with a good and sufficient deed of conveyance, with covenants of general warranty, conveying said lot to said Gottfried. Abstract and deed to be furnished within ten days from date thereof.
“Dated this June 29, 1903. Martha Bray.”
Plaintiff prayed specific performance of said alleged contract. Defendant’s answer pleads as a defense to the action that she never agreed to the writing sued on, nor the terms thereof, although her name was appended thereto; that she and the plaintiff had
Defendant further states as a defense to said action that she relied upon plaintiff’s representation that he would read it correctly, and that it contained only a receipt for the $50 which he at that time was paying her, and signed the same, but that said writing did not contain the terms upon which the ground had been sold, but other and different terms, and that her signature was procured through fraud and misrepresentation. The circuit court decreed specific performance and defendant appeals.
I. That there was an agreement by defendant to sell plaintiff a portion of her residence lot fronting on Walnut street in the city of Springfield, there can be
The real contention on this appeal hinges upon the execution of the memorandum of sale by defendant, for while in a court of law the written document is presumed to contain the final agreement of the parties and that all prior verbal negotiations are merged therein, it is nevertheless a well-established rule that when a plaintiff comes into court of equity for a specific performance of the agreement, even when written, the defendant may by parol evidence show that through the mistake of both or either of the parties, the writing does not express the -real agreement, or that the agreement itself was entered into through a mistake as to its subject-matter or as to its terms. “In short,” says Pomeroy in 2 Pomeroy, Eq. Jur. (2 Ed.), sec. 860, “a court of equity will not grant its affirmative remedy to compel defendant to perform a contract which he did not intend to make, or which he would not have entered into had its true effect been understood.” We are required by the arguments of respective counsel to scrutinize the transaction which resulted in defendant’s signing the written agreement. It appears that after the plaintiff and defendant had had one or two short conversations in regard to the trade, on the street, or in plaintiff’s store in the city, plaintiff went to the residence of the defendant and together they looked over the lot. In view of the positive testimony of defendant and Mrs. Collins that the proposed tract to be sold was
Recurring to the circumstances in which the memorandum was signed. It appears that nothing had been said about making a written contract to bind the trade. Indeed, plaintiff says that when he approached this subject on what apparently was a mere social call upon defendant at her residence at night, just as he was leaving, he opened the negotiation by saying, “Mrs. Bray, all the dealings we have had in reference to this lot have been verbal. I have had my attorney draw up the contract and I will read it to you, and if after you read it, it meets with your approval I will give you my check for the consideration and close the deal.” It thus appears that the attorney who drew the memorandum of sale had no information other than that imparted by plaintiff. The record also discloses that the defendant had a son, a lawyer, living at that time in Springfield, but she had not been consulted as to the drawing of the contract. The plaintiff read the writing to her, he says, but here again the testimony is hopelessly conflicting. Plaintiff says he read it as written except that on two occasions he read “Will Gottfried,” instead of “said Gottfried,” and his wife called his attention to the mistake. He says then he handed it to Mrs. Bray and she put on her glasses and began to read it aloud and made the same mistake he had made and
Specific performance is not decreed as a matter of course. The fact that the plaintiff is able to establish a contract valid at law is not alone sufficient to entitle him to a decree. It has often been said by this court that a decree for specific performance rests in the sound, not arbitrary, discretion of the court,' and it is well established that a court of chancery often refuses
Measuring the plaintiff’s conduct by the foregoing standards, did he bring himself within the principles
In our opinion the testimony does not entitle plaintiff to a specific performance of the contract evidenced by the memorandum. We think he has not overcome the proofs by defendant that she never knowingly executed it in the form it is now, either as to the description of the lot, or the purchase price.
As to the fact that our learned brother on the circuit has reached a different conclusion we need only add that this court does defer in a large measure to the judgment of the trial court on findings of fact, but we have often in equity cases ruled that such' a finding is not conclusive upon us; otherwise, appeals in chancery causes would be idle formalities. [Benne v. Schnecko, 100 Mo. l. c. 257 and 258; Blount v. Spratt, 113 Mo. l. c. 54; McMurray v. McMurray, 180 Mo. l. c.
Upon a careful review of the whole record, we think the plaintiff was not entitled to have the contract set forth in the memorandum specifically enforced. Defendant offered to convey in accordance with the contract she made, but is not hound by the document to which she never knowingly and understandingly gave her assent.
The judgment is reversed with directions to the circuit court to dismiss plaintiff’s bill at his costs, and require defendant to return the plaintiff’s check for $50.