Huggins v. Safford

67 Mo. App. 469 | Mo. Ct. App. | 1896

Gill, J.

On December 12, 1894, plaintiff and defendant entered into a written contract wherein it was agreed that defendant should sell to the plaintiff one hundred and sixty acres of land therein described, for the price of $7,440. Defendant agreed to take from plaintiff, in part payment, a stock of saddles, harness, etc., at its then present value; plaintiff was to assume a certain mortgage on the property and the balance of the purchase price plaintiff was to pay March 1, 1895, at which time defendant was to make plaintiff a deed. Shortly thereafter (the exact date does not appear on the record) the stock of saddles and harness was invoiced and turned over to defendant at the agreed price of $908.06, and defendant indorsed on the face of the contract his receipt for that sum, stating it to be a payment on account of the land.

In the body of this first and original contract, it was stipulated that “if said second party (plaintiff Huggins) fails or refuses to perform his part of said contract as above stated, he shall forfeit as liquidated damages all payments made, and said first party (defendant Safford) shall forfeit as liquidated damages the sum of $500.”

Plaintiff Huggins failed to pay the balance of the purchase money on the first day of March as agreed, and defendant, on March 15, made out and tendered to plaintiff a deed, at the same time demanding the balance due on the sale, which plaintiff failed to pay. The matter rested then in this unsettled shape until April 8 following, when plaintiff and defendant met and entered into a new and different contract for the purchase and sale of the same land, stating on its face that “it is hereby understood and agreed by first and second parties-named in this contract that this contract is in lieu and takes the. place of any other contract made on this land/’ and at the same time indorsing on the original contract these words: “This contract is canceled this eighth day of April, 1895, by mutual consent of both parties. Witness our hands and seals this eighth day of April, 1895.

(Signed) “W. O. Huggins, [seal]

“W. Gr. Safeobd. [seal]

“Witness, R. M. Stevenson.”

The new contract was complete in all its parts and provided for the sale of the same land at the price of $6,532, the plaintiff purchaser to pay this amount, less a $3,000 mortgage named in the agreement, on or before June 8, 1895, “and if payment is not made by the eighth day of June, 1895, then this contract to be null and void,” and further, “that in case said Huggins fails to make payment as stated in this contract on or before June 8, 1895, the said Safford is released from all obligations to said Huggins in the matter of this land sale.”

Plaintiff failed to pay the purchase price of the land on or before June 8, 1895, as provided in the last contract, or at any other time, and in August following instituted this suit, whereby he sought, in the form of an action for goods sold and delivered, to recover of defendant the value of the saddle and harness stock, to wit, $908.06. In' a trial before the court, without the aid of a jury, there was judgment for defendant, and plaintiff appealed.

I know of no principle of law upon which the judgment of the circuit court can be upheld. The substance of the case is this: On December 12, 1894, plaintiff and defendant entered into their first, written contract for the purchase and sale of the land, and as part of the price plaintiff turned over to defendant the stock of goods valued at $908.06. It, is true that this first contract stipulated that plaintiff should forfeit that payment (as liquidated damages), if he did not, within a certain time, complete the purchase of the land. Subsequently, however (April .8, 1895), the parties, by mutual agreement, canceled the first contract and entered into a new and different one, expressly stipulating that the last contract was to stand in lieu and in the place of the old one. In this last contract, nothing was said about either party forfeiting anything or paying anything for its violation. It simply and in effect provided that plaintiff might purchase the land at a stipulated price, if the amount was paid on or before June 8, 1895, and if not paid by that time then said contract was to be null and void. The plaintiff did not pay the balance of the purchase price at the time agreed, and hence, by the terms of the only written contract then in force and existing between the parties, the agreement to sell became a nullity. After April 8, 1895 (the date of the last agreement), the first or original contract was defunct, was as if never written, and contained no agreement or stipulation binding on either party. The rights, then, of the plaintiff and defendant were to be measured by the terms of the agreement of April 8, 1895. And, as already stated, it was a contract giving to plaintiff a mere option to buy the property within the time specified, and gave to neither party any claim for damages for its violation. Ramsey v. West, 31 Mo. App. 676.

If this was all, then neither party could claim anything from the other. But it appears that as part payment on the land, as provided for in the first contract, plaintiff turned over to defendant merchandise of the admitted value of $908.06, and this the defendant refused to return or pay for. The law will not permit this. The defendant has that amount of plaintiff’s property which in justice and good conscience he ought not to retain. It is likely the court below deemed this $908.06 forfeited to the defendant because of plaintiff’s failure to comply with the terms of the original agreement. But this can not be, for the reason that said contract was by mutual agreement rescinded and canceled and another made in lieu thereof. Nor can the defendant claim said $908.06 as a forfeiture or liquidated damages for the plaintiff’s failure to complete the purchase under the terms of the last contract; for, as already stated, it was a mere option and gave to neither party a right to damages or forfeiture. The law looks with disfavor on such forfeitures and will only enforce a claim therefor when it is clearly shown that the parties so intended.

Under the undisputed facts, then, the plaintiff should recover, of defendant $908.06, with six per cent interest from the institution of this suit, and the judgment will therefore be reversed and cause remanded, with, directions to enter such a judgment.

All concur.