Isaacs v. Skrainka

95 Mo. 517 | Mo. | 1888

Black, J.

This is a suit brought by Isaacs for the specific performance of a written contract, dated February 17, 1882, and signed by the parties therein named. The contract is in the following words: “ William Skrainka and Claus Yieths agree to take all the property of J. L. Isaacs now proceeded against on special tax bills in their favor and against said property, before Justice Taaffe and in the circuit court, city of St. Louis, at fourteen hundred dollars, and J. L. Isaacs agrees to convey to them said property by quit-claim deed for said sum.”

There were suits pending before the justice and in the circuit court to enforce tax bills against sixteen lots, owned by Isaacs. Skrainka and Yieths, the present defendants, were the owners of the tax bills, and were the plaintiffs in those suits. One of the suits was on trial in the circuit court, under an agreement that the others should abide the result of that one. During the trial the contract in question was made in settlement of the pending litigation. About two weeks thereafter, Isaacs tendered defendants a quit-claim deed, and demanded the fourteen hundred dollars ; but defendants refused to accept it, and refused to pay the amount. Isaacs now tenders the deed with his prayer for specific performance.

The substance of the defence is, that there were other outstanding tax bills against the property for other improvements, amounting to about one hundred and fifty dollars; that Isaacs fraudulently concealed the existence of these tax bills, and represented the property to be free from such liens. The contract sued upon was made under these circumstances: One of the defences made by Isaacs in the tax bills suits was, that they amounted to more than the value of the property. He produced a witness who valued the property at five dollars per front foot, and thereupon the defendant proposed, in open court, to take the property at that price. The property has a frontage of four hundred feet, making the offer two thousand dollars. Isaacs accepted the proposition. The court took a recess until two p. m., to give the parties time to settle. Then defendants insisted that these tax bills, amounting to about fourteen hundred dollars, should be deducted, but Isaacs did not understand the proposition in that way, and the parties separated without coming to a settlement. After recess the attorneys undertook to settle the matter. Propositions were made and rejected, and finally these defendants agreed to give Isaacs fourteen hundred dollars net for the property and the foregoing contract was then executed.

It is an undisputed fact that there were, at the date of the contract, other outstanding tax bills against some of the lots, amounting to about one hundred and fifty dollars, for improvements on Jefferson avenue. The evidence on behalf of defendants, as to the representation made by Mr. Isaacs, is, in substance, as follows:

Judge Rombauer, who represented Skrainka and Yieths, says: “ My recollection is that I asked Isaacs if the improvements on Jefferson avenue were paid for, and he said they were; that Skrainka wanted a warranty-deed, and Isaacs said he, himself, had only a quitclaim deed ; that his counsel said he could not properly give a warranty deed, as these defendants were to pay their own tax'bills.”

Mr. Yieths testified that Isaacs refused to give a warranty deed, because he had purchased the property at a sheriff’s or assignee’s sale ; that Isaacs saidhis quitclaim deed was as good as a warranty deed, except for taxes of 1882, and the tax- bills held by the present defendants, Mr. Skrainka says he went out into the hall, and there- said to Isaacs that he wanted a clear title, and Isaacs said the title was clear ; that they then had a conversation about taxes for 1882 ; that, upon the advice of Rombauer, he withdrew his objection to a quit-claim deed, on the assurance of Isaacs that the property was clear; that he asked Isaacs if all the improvements had been paid for, and he said they had. The evidence of a son of Skrainka is to the same effect.

On the other hand, Mr. Isaacs says the conversation in the hall occurred while they were passing out of the courtroom, and did not last more than two minutes; that he simply spoke to the parties ; was asked nothing about, and said nothing about the property being free from other liens; that he did not say a quit-claim deed would be as good as a warranty deed, because he did not know the difference between the two forms. He says Skrainka and - Vieths were to pay the taxes for 1882. Mr. Collins says he thinks he heard all that was said in the hall, and that he heard nothing said about other incumbrances against. the property; that it was after the recess of the court that Skrainka wanted a warranty deed, and that Mr. Marshall then took charge of the matter. Mr. Marshall, who represented Isaacs, *■ says he was with the parties until they separated ; that he heard no conversation in the hallway; that when became back in the afternoon, he and Rombauer settled the matter; that Judge Rombauer and Skrainka yielded the point about a warranty deed, and the taxes of 1882 ; and that he heard nothing about other improvements having been paid for, and did not know of the existence of those tax bills.

The defendants in taking the property at fourteen hundred dollars subject to their tax bills and taxes for 1882 were to pay the full value of the property. They had information that led them to believe that work had been done for which other tax bills could be issued. It is conceded on all hands that the taxes for 1882 were considered, and it is reasonable to believe that other incumbrances were spoken of ; and the fact that Isaacs would not make a warranty deed makes it the more probable that inquiry was made in respect of other incumbrances. Three witnesses say that Isaacs said the property was free from such liens. He denies that he made the representation, and two witnesses, who were in a position to hear, say they heard no such representations. It is a familiar rule that where the witnesses are equally credible, the positive evidence that a given thing was said is of more weight than that of others who say they did not hear the alleged statement. Henze v. Railroad, 71 Mo. 639.

Giving to the finding of the court due consideration., still we can come to no other conclusion, than this, that Mr. Isaacs clid lead the defendants to believe the property was free from other liens, and that this led them to agree to take a quit-claim deed. While the representations may not be such as would support an action at law for fraud and deceit, still it must be remembered that this is an action for specific performance prosecuted by the vendor. Pry says: “In equity, however, it furnishes a good defence to a suit for specific performance, that the plaintiff made a representation which was not true, though without knowledge of its untruth, and this even though the mistake be innocent.” Pry on Spec. Perf., sec. 432. This distinction is pointed out in Dunn v. White, 63 Mo. 182. It is held that it requires much less strength of case on the part of a defendant to resist a bill to'perfoi’m a contract than it does on the part of the plaintiff, to maintain a bill to e’nforce specific performance. Veth v. Gierth, 92 Mo. 97. To defeat the specific performance of a contract it is enough that the representation was material, was actually untrue, was relied upon, and did mislead the other party. It need not have been made with an intent to deceive. Pom. Spec. Perf., secs. 217, 218.

We do not think the fact that defendants -were to take a quit-claim deed is of any controlling importance. Pry says: “The circumstance that the vendor sold * with all faults,5 though it may serve to put the purchaser on his guard, will not enable the vendor to say that the purchaser did not rely on his representation, or •prevent the purchaser from avoiding the sale, if the representation was false.” Pry on Spec. Perf., sec. 455. Our conclusion is, that the plaintiff is not entitled to specific performance so long as the property remains incumbered by these tax bills, amounting to a hundred ■and fifty dollars or thereabouts. • As the judgment must be reversed, the cause will be remanded; for while the title may not have been perfect when the suit was commenced, still specific performance may be decreed, if the title be perfected before judgment or decree. Luckett v. Williamson, 37 Mo. 389.

Judgment reversed and cause remanded.

All concur.