Knisely v. Leathe

256 Mo. 341 | Mo. | 1914

Lead Opinion

BROWN, C.

— This suit was instituted March 10, 1909, by filing in the clerk’s office of the circuit court the original petition which stated that a copy of the written contract sued on was filed with it as an ex-Mbit. Summons issued next day returnable to tbe April term and was returned not found April 5. Alias summons issued on tbe same date returnable to tbe June term and was returned served on tbe defendant executrix April 27, 1909. Tbe defendant appeared and answered during tbe April term, and tbe cause proceeded so that at tbe April term, 1910, and on June 4, tbe plaintiff with leave of court filed ber third amended petition, which, omitting venue and signature, is in words and figures following:

“Elizabeth C. Knisely, Administratrix of tbe Estate of Charles H. Knisely, Deceased, Plaintiff, v. Grace A. Leatbe, Executrix of tbe Estate of Samuel PI. Leatbe, Deceased, Defendant.

“Plaintiff, for tMrd amended petition, filed by leave of court, states that Charles PL Knisely died in tbe city of St. LoMs, State of Missouri, on tbe 17th day of July, 1904, intestate; that thereafter on tbe 30th day of August, 1904, she was duly appointed by tbe probate court of tbe city of St. Louis, Missouri, administratrix of tbe estate of said Charles H. Knisely, deceased, gave bond for tbe faithful discharge of ber duties, qualified and is now acting as such by virtue of said appointment.

“Plaintiff further states that said Samuel H. Leatbe died in tbe city of St. Louis, State of Missouri, on tbe 3rd day of March, 1907, testate. That tbe last will and testament of tbe said Samuel H. Leatbe was duly admitted to probate by tbe probate court of tbe city of St. Louis, Missouri, on the 19th day of March, 1907; that by tbe terms of said will the defendant, Grace A. Leatbe (who is tbe widow of said Samuel BE. Leatbe), was named as executrix without bond, and letters testamentary dated March 20, 1907, were issued to ber by said court and she then qualified and entered upon tbe discharge of ber duties as such executrix, and within thirty days after said letters were granted to ber she published notice thereof for three weeks as required by the provisions of section 86 of the Revised Statutes of Missouri, 1899.

“Plaintiff for her cause of action against defendant states, that on the 25th day of October, 1900, said Samuel H. Leathe and one Charles C. Wolcott made and entered into a contract in writing of that date (a copy of which is herewith filed and marked ‘Exhibit A’), wherein and whereby the said Samuel H. Leathe, in consideration of the sum of one dollar to him paid by said Wolcott, agreed to and did sell to the said Wolcott, for the sum of $850,000, certain lands situate in the counties of St. Francois and Madison, in the State of Missouri, containing 37,514 acres, and being known as the Mine La Motte and other lands of the said Samuel H. Leathe, particularly described therein, together with all machinery, operating plant and personal property then and thereon belonging to the said Samuel H. Leathe; that in and by said contract said sum of $850,000 was made payable as follows: $300,000 in cash, as soon as the report of the engineer of said Wolcott upon said lands was completed and abstracts of title to said property examined by the attorneys of said Wolcott and deed delivered and possession of said property given to said Wolcott; one third of the remainder on or before one year from the date of delivery of title and possession of said property to him and one third in two years; and one third in three years thereafter. That :in and by said contract the said Samuel H. Leathe .agreed to execute and deliver a warranty deed to the .said Wolcott of said property, with abstracts of title showing and conveying a good title to all of said real •estate; and it was further especially agreed that said .grantee, Wolcott, or his attorneys, should be the sole .judges as to whether such abstracts and facts in relation thereto showed a good and indefeasible title to •said lands in said grantor, Samuel TI. Leathe, said deferred payments to be secured by a trust deed on said property and notes to bear interest at the rate of six per cent per annum from their date, and that said Wolcott should have a reasonable time before making said first payment to have said lands surveyed, maps made thereof, and also to have his engineer to make a full and complete examination and report upon the property, such examination to begin not later than December 1, 1900.

“Plaintiff further says that the said Charles 0. Wolcott caused his engineer to begin such examination of said property prior to said December 1, 1900, and that said Wolcott was at all times ready, able and willing to comply with and perform all of the other provisions of said contract to be complied with and performed by him, and he would have complied with and-performed said other provisions of said contract to be kept and performed by him, but that said Samuel H. Leathe failed and refused to comply with his part of said contract in this, to wit:

“First: That he failed to execute and deliver to the said Wolcott a warranty deed as he had agreed.

“Second: The said Leathe failed and refused to deliver to said Wolcott, or his attorneys, abstracts of title showing good and indefeasible title to the said real estate described or any abstracts of title thereof whatever, which said abstracts of title said Wolcott requested and demanded of said Leathe, January 4, 1901.

“Third: The said Leathe repeatedly offered to sell and sold said premises prior to July 12, 1902, and subsequently sold and conveyed by deed the said property to a grantee other than said Wolcott, or any person or persons to whom he sold the same, to wit: the Mine La Motte Lead and Smelting Company, a corporation.

“Plaintiff further states that on the said 25th day of October, 1900, the said Samuel H. Leathe by his contract in writing (herewith, filed and marked Exhibit ‘B’) promised, that in the event of the sale of said property described in said contract with said Wolcott of even date therewith, to or through said Wolcott or his assigns, for services rendered, the receipt and value of which services were thereby acknowledged, to pay to said Charles H. Knisely, plaintiff’s intestate, or his order, the sum of $107,500 out of the purchase price of said $850,000, the payment of said $107,500 to be made by said Leathe to said Knisely in four payments, the first one of $37,941.19, and three additional payments of $23,186.27 each, at such time and place as the said Leathe should receive the principal payment on said real .estate, as per the contract of sale entered into by him with the said Charles C. Wolcott of even date therewith, deferred payments of said amount to bear interest at the rate of six per cent per annum, the same as the original sum in said contract of sale entered into between said Leathe and Wolcott.

“Plaintiff further states that on the first day of August, 1907, she filed in the clerk’s office of this court a petition wherein she was plaintiff, and defendant herein was defendant, setting forth the same cause of action therein as set forth in the petition in this cause and sued out process therein, on which petition a summons was issued directed to the sheriff of the city of St. Louis, who served the same upon the said defendant in said city of St. Louis on September 7, 1907, to-which petition the defendant on October 7, 1907, filed an answer in this court. That said cause, No. 46,873, was pending in this court until February 15, 1909, when same was called for trial by the court during the absence of plaintiff, and on motion of defendant’s counsel was dismissed by the court for failure of plaintiff to prosecute the same.

“That thereafter plaintiff filed a motion in said court to set aside dismissal, which motion said court overruled March 8, 1909. Wherefore, plaintiff says that the demand set forth in the petition herein was legally exhibited against the estate of said Samuel H. Leathe, deceased, within one year after granting the first letters of administration on his estate.

£ £ Plaintiff further states that the original petition herein was filed in said clerk’s office on March 10, 1909, and process sued out therein on which a summons was then issued and delivered to said sheriff. That the cause of action herein accrued to plaintiff and against the defendant, who was a resident of this State, prior to the first day of January, 1909, and that defendant prior ’to the filing of said original petition departed from and absented herself from this State continuously until the 27th day of April, 1909, and thereby prevented the service of said or any other summons in this cause on her by said sheriff until the latter date.

“Plaintiff says that by reason of the premises aforesaid, the estate of said Samuel H. Leathe is justly indebted to plaintiff, as administratrix- of the estate of Charles H. Knisely, in the sum of $107,500, with interest thereon at the rate of six per cent per annum, as aforesaid.

.“Wherefore, plaintiffs prays judgment against the said defendant for the sum of $107,500, together with interest and costs.”

At the June term and on June 8, 1910, the defendant filed her motion to strike out all that part of the third amended petition having reference to the suit filed by plaintiff August 1, 1907, on the ground that said part was irrelevant, that no right of action could he founded thereon, and that it was redundant and not proper matter to he pleaded.

Afterward on the same date the defendant filed a demurrer to all the third amended petition not included in the said motion to strike out, which demurrer, omitting venue and signatures, is as follows:

“ Elizabeth C. Knisely, Administratrix of the Estate of Charles H. Knisely, Deceased, Plaintiff, v. Grace A. Leathe, Executrix of the Estate of Samuel H. Leathe, Deceased, Defendant.

“And now comes the defendant and demurs to the plaintiff’s third amended petition, other than the parts thereof on page four, beginning with line sixteen, and on page five, ending with line five, which parts defendant has filed a motion to strike out. And for ground of this demurrer the defendant assigns that said parts of said petition not moved to be stricken out do not state facts sufficient to constitute a cause of action.

“1. That said parts of plaintiff’s third amended petition herein not moved to be stricken out show that defendant was granted letters testamentary and qualified as executrix of the estate of said Samuel H. Leathe, deceased, March 20, 1907, and duly published notice thereof, but said part of plaintiff’s third amended petition does not show that the summons in this case was served on defendant within two years from March 20, 1907, as required by section 187 of the Revised Statutes of Missouri for 1899, sbut the return of the sheriff upon the alias writ issued herein shows that such service was made April 27, 1909, after the expiration of said two years; and said parts of said third amended petition not so moved to be stricken out also fail to show that plaintiff caused notice of her said pretended demand to be served on defendant and filed as required by section 198 or 212 of said statutes within said two years or that plaintiff within said two years filed notice of said pretended demand alleged in and by said third amended petition in the office of the probate court of said city as required by said section 212, wherefore plaintiff’s said pretended demand was barred after March 20, 1907, by the special limitation of two years fixed by section 185 of said statutes when said summons was served herein on defendant April 27, 1909.

“2. Said petition fails to show that the deceased Samuel H. Leathe received from Charles C. "Wolcott any money out of which the deceased Charles H. Knisely was to have been paid part, according to the terms of his contract with said Leathe, so that plaintiff’s pretended cause of action herein for' damages for breach of contract accrued prior to July 12, 1902, more than five years before this suit was begun.”

At the April term, 1910, the court made the following order in said cause: “Elizabeth C. Knisely, Administratrix, etc., v. Grace A. Leathe, Executrix, etc., No. 58,063A. Now at this day the court having duly considered defendant’s motion to strike out part of plaintiff’s third amended petition, heretofore filed and submitted herein, doth order that said motion be and the same is hereby sustained. And the court having duly considered defendant’s demurrer to all remaining parts of plaintiff’s third amended petition (not stricken out on said motion), heretofore filed and submitted herein, doth order that said demurrer be and-the same is hereby sustained.”

During the same term the plaintiff filed its bill of exceptions to the action of the court in striking out part of the third amended petition. On the last mentioned date the plaintiff declining' to plead further the court rendered judgment for the defendant from which this appeal is taken.

Demurrer and Motion to Strike out: Appeal. I. The respondent’s counsel say in their brief tñat neither the force nor effect of any provision of the written contract pleaded as the foundation of the action is involved in this record. We ag'ree with them except in so far as . . . . . such provision may have a bearing upon the questions raised by the motion to strike out and demurrer directed against the third amended petition, and upon which it was held so fatally defective that judgment was given to the defendant. While it is agreed that the demurrer and the action of the court thereon are before this court as belonging to the record proper, respondent says that neither the motion nor the action of the court in sustaining it is here for review because the exception taken to that action was not followed up by a motion for a new trial in which the same matter was again made the subject of complaint and exception. If this be true, we take the petition, with all that portion covered by the motion eliminated, and have no power to review the action of the trial court in so emasculating it. Is this the condition of the record?

The motion to strike out covers that part of the petition which pleads the institution, pendency and dismissal of a previous suit, to avoid the bar of the Statute of Limitations which might otherwise arise on account of delay in bringing this action. The demurrer to the remainder is founded upon two specifications. The first amounts to a plea of the special limitation of two years prescribed for the exhibition of demands against deceased person by section 185, Revised Statutes 1899, and the other is a like plea of the limitation of five years contained in section 4273 of the same revision. These papers were filed on the same day, Were considered together, and the decision of the court upon both was included in a single entry. Both together they amounted to a demurrer to the petition on the ground that it showed affirmatively upon its face that the demand sued on was barred by these statutes of limitations, of which the defendant chose to avail herself by demurring specially on that ground. Or, if we choose to put it the other way, they together constituted, a motion to strike out the entire petition for reasons of which the defendant could avail herself or not as she chose, but which, if well founded, would destroy it as the statement of a cause of actiop. [Shohoney v. Railroad, 223 Mo. 649; same case 231 Mo. 131, 148, and cases cited; Burrows v. McManus, 249 Mo. 555.] It is the hybrid offspring with which we are concerned and not the arrangement of its parentage. The destruction of the petition upon which the entire record rests is the matter complained of and we cannot examine the record proper without taking cognizance of that fact by whatever process it may have been accomplished. The propriety of the action of the court in sustaining both the demurrer ■ and the motion to strike out a part of the petition is' therefore before us.

AoTion^ona1 writing. II. What provision of the general Statute of Limitations was applicable to and running against this demand at the time of Mr. Leathe’s death? The defendant elected, by her demurrer, to plead limitation of five years. “Whenever the defense.is in the nature of a special privilege, of which the party can only avail himself by pleading it, then his pleading, whether by demurrer or answer must specify the ground of his defense” (State ex rel. v. Spencer, 79 Mo. 314), and if he seeks by his demurrer to take advantage of the Statute of Limitations, he must plead the very provision on which he depends. [Murphy v. DeFrance, 105 Mo. 53, 62; State v. Spencer, supra.] In this case he pleaded not only the special statute limiting the time for the exhibition of demands against the estates of deceased persons, but also the five year general limitation.

Section 4272, Revised Statutes 1899, provides that “an action npon any writing, whether sealed or unsealed, for the payment of money or property” may be commenced within ten years. This clause is more expressive in its breadth than in its length. It is attenuated by no - qualifying word, such as' ‘ ‘ direct, ’ ’ or “unconditional,” but includes every action for money or property founded upon a “writing.” The contingency upon which it is to be paid or delivered' does not enter into the construction of this short and expressive clause. This action is brought upon the theory that it was the duty of the defendant’s testator under the provisions of the contract with plaintiff’s intestate pleaded in the petition, to carry out the terms of the contract of sale to Wolcott made the same day and to pay the sum sued for out of the proceeds; that having refused to do so the amount became due and payable; and, although the plaintiff’s intestate could not, of course, enforce the specific performance of the contract with Wolcott, he stood in the same favorable position he would have occupied had it been honestly performed by the testator.

In Curtis v. Sexton, 201 Mo. 217, 230, the plaintiff had purchased from the defendant’s partnership an interest in a tract of land which the partners promised in writing that they would at a given date repurchase if the plaintiff should so desire and request, at an amount equal to all sums paid by him on the original purchase, with ten per cent interest. The plaintiff expressed Ms desire, and tendered a deed to defendant, and requested the payment of the amount agreed on, which was refused, and the plaintiff brought suit to recover it. In holding that the limitation of ten years and not five applied the court said:

“In the ease at bar there is an express agreement to pay the amounts the plaintiff paid on account of his purchase and interest thereon, the oMy necessity for going beyond the paper writing to make out the case is to show the performance of the contract on the part of the plaintiff and the breach on the part of the defendant. The action is founded on the written contract and falls within the ten-year section of the Statute of Limitations.”

We see no difference in principle between the case we are considering and the one just cited. In the latter the amount sued for was the agreed purchase price of the land, but the refusal of the defendant to' take the deed when tendered did not prejudice the plaintiff’s right to recover it, as if his tender had been accepted. It makes no difference, however, whether the suit be in debt for the amount due upon a contract, or in covenant to recover unliquidated damages for its breach. Both are alike on the contract; and if the contract is “for the payment of money or property” it fills the requirement of the provisions of the Statute of Limitations we have quoted. The following cases are more or less in point on the same question: Reyburn v. Casey, 29 Mo. 129; Moorman v. Sharp, 35 Mo. 283; Henoch v. Chaney, 61 Mo. 129, 133; Miner v. Howard, 93 Mo. App. 569. We have no doubt that the ten-year limitation would apply in a suit of this character brought on a similar contract in the lifetime of the party.

-: Demands Against Estate of Deceased: Suit Against Executors. III. There remains, stripped of these preliminary matters, the important question presented by this appeal: Is the demand sued on barred by the special limitation of two years in force when the suit was begun? The special provisions relating directly to that period of limitation in case of demands against the estates of deceased persons are, as they appear in the Revised Statutes of 1909, as follows:

Section 190, relating to the classification of demands, provides that the fifth class shall consist of “all demands, without regard to quality, which shall be legally exhibited against the estate within one year after the granting of the first letters on the estate;” and in the sixth class, “all demands thus exhibited after the end of one year and within two years after letters granted.” And section 191 provides that “all demands not thus exhibited in two years shall be forever barred,” etc. By section 192 suits pending against the deceased at the. time of his death are to be considered as demands legally exhibited from the time of their revivor, and by section 193 “all actions commenced against' snch execntor or administrator, after death of the deceased, shall be considered demands legally exhibited against snch estate from the time of serving the original process on snch executor or administrator.” Section 194 provides that demands may be exhibited by serving upon the executor or administrator a notice in writing, stating the amount and nature of the claim with a copy of the instrument of writing or account upon which it is founded; and that such, claim shall be considered legally exhibited from the time of service of such notice or its waiver in writing; and section 195 requires that to avail himself of that method of exhibition the claimant must present his demand to the court in the manner provided by law, for allowance, within two years after the granting of letters. Originally both the last clause of section 190 and also section 191, contained following the words “thus exhibited,” the words “and presented to the court for allowance” (R. S. 1889, secs. 183 and 184), but these were stricken out by amendment in 1899. [Laws 1899, p. 38.]

We have given the foregoing summary of the several statutory provisions affecting the limitation of actions for the establishment and collection of demands against the estates of deceased- persons for the purpose of showing that the Legislature has made a plain and deliberate distinction between the exhibition of such demands and their presentment for allowance; that it has emphasized this distinction by striking out by amendment those provisions of sections 183 and 184 of the Revised Statutes of 1889 which required that they must be “presented to the court for allowance” to stop the running of the special statute, and also by providing that in certain instances the demand may be exhibited at one time and presented for allowance at another and later time; but in every case the course of the statute is arrested by the “legal exhibition” of the demand. There is no avenue of escape from the direct declaration of the Legislature that on September 7, 1907, the date of the service of the original process in the first suit brought by the plaintiff against the defendant executrix on this demand, the running of the special statute against it stopped and it was then the duty of the defendant to classify it immediately in the fifth class and report it to the court in his first annual settlement. [R. S. 1909, sec. 156.] TJp to that time two statutes of limitations were running simultaneously against the claim — the general and the special. At the expiration of the term provided by either, the action would be barred as to both. [McKinzie v. Hill, 51 Mo. 303.] Comparison of the language of these two statutes may also throw some light upon the legislative purpose. The general statute is directed only against the particular remedy which it is intended to exclude. It employs the time-honored formula that a civil action can only be commenced within the time limited; that is to say, the time is limited with reference to the beginning of the particular action in which the plea is made. The special statute before us provides that the demand shall be barred against all remedy unless it be exhibited within the time limited, thus necessarily implying the correlative proposition that all remedies will be preserved by its exhibition within the time. The defendant, on the other hand, seems to contend that while the exhibition of the demand impeded the running of the special statute for a time, the dismissal of the suit swept away the impediment, and the placid waters of repose resumed, their flow undisturbed into legal oblivion. She refers to no statute, nor does she cite any authority in support of this contention. The limitation depends entirely upon the statute for its existence, and we have no authority to write into it what the Legislature has left out.

We have already mentioned the fact that the special limitation goes hand in hand with that imposed by the general statute. When a demand is barred by the latter it cannot be a living one through the former. [McKinzie v. Hill, supra.] Fiad this cause of action accrued nine years before the issue to defendant of letters testamentary it would not wait to be barred by the special statute in two years, but would come within the bar of the general statute at the end of the first year. Were suit brought during that first year it would be a perfect statutory exhibition of the demand, and therefore stop the running of the special and general statutes of limitation. The special limitation would then be out of the case, the only condition required to prevent it from running having been fully performed, and it would only remain to take such steps that the action already pending could be kept alive, or new actions brought during the period of limitation prescribed by the general statute. Should a nonsuit or dismissal be suffered the suit might be renewed as provided in section 1900, Revised Statutes 1909, under the very letter of which it would fall. We see no difference, in principle between such a case and this one. The bringing of the suit and service of the original process September 7, 1907, exhibited the demand and stopped the running of the special statute. [Tevis v. Tevis, 23 Mo. 256; Farrar v. Christy, 33 Mo. 44, 56; Ryans v. Boogher, 169 Mo. 673, 684.] This suit was dismissed during the absence of plaintiff on February 5, 1909; a motion was filed to set aside the judgment of dismissal, and overruled March 8, and on March 10, 1909, the petition in this case was filed and process sued out thereon, at which time it still lacked ten days of being two years since the issue of letters testamentary to the defendant.

The general code (R. S>. 1909, sec. 1756) provides that “suits may be instituted in courts of record, except where the statute law of this State otherwise provides ... by filing in the office of the clerk of the proper court a petition setting forth the plaintiff’s cause or causes of action, and the remedy sought, . . . and suing out thereon a writ of summons.” So far as the provisions of our general statute of limitations is concerned this has always been considered such a commencement of an action as arrests its running. [State ex rel. v. Wilson, 216 Mo. 215, 292, and cases cited.] In this case, however, it is claimed that it is otherwise provided by the statute fixing a limitation to the presentation of demands against the estates of decedents. We have already seen that the provision relating to service of summons on the executor or administrator only applies to the exhibition of the demand, and that there can be but one exhibition of the same demand. It follows that the present suit was instituted in time to avoid the bar of the special limitation.

While the demurrer states that the petition does not state a cause of action, it expressly places its conclusion on the ground that the cause of action appeared upon the face of the petition to be barred by the Statute of Limitations. Respondent makes no other objection here. Under these circumstances we have confined our examination to the question presented to and decided by the circuit court, and again presented by this appeal, leaving all other questions to be decided as they may hereafter arise.

For the reasons we have stated, the judgment will be reversed, and the cause remanded.

Blair, G., concurs. PER CURIAM.

— The foregoing opinion by Brown, C., is adopted as the opinion of the court.

Lamm, J., concurs. Graves, J., dissents in part and concurs in part in separate opinion in which Woodson, P. J., and Bond, J., concur.

---

Concurrence Opinion

GRAVES, J.

Cause of Action. — I. I concur in all that is said by our learned Commissioner in this case, except where he says that the respondent raises no other questions here besides those disposed of by the opinion, and wherein he says that all other questions should be left to future determination. I think there is another question of vital importance which should be now determined to the end that this case , may he properly tried when tried anew below. Counsel differ as to the character of the instrument involved in this suit, and even as to the character of the action. Counsel for plaintiff contends that the petition is one upon a contract to pay money,' and that the amount to be recovered is measured by the provisions in the written instrument, while respondent in her brief, through her able counsel, thus denominates the cause of action:

“The purpose of both suits was to establish a pretended demand for damages against the Leathe estate for $107,500 on account of services which the deceased Knisely claims to have rendered Leathe in an endeavor by Leathe to sell for $850,000 to one Charles C. "Wolcott 37,514 acres of land in St. Francois and Madison counties, Missouri, known as the Mine La Motte property, together with the machinery, operating plant and other property thereon belonging to said Leathe.”

Thus it appears that the theory of the one party is that the action is one upon a written contract for the recovery of a specified sum, stated in the contract, whilst the theory of the other is that the petition states only an action for damages. In the one instance the contract would be the very basis of the action, whilst in the other it would be purely evidentiary. Again, in the brief this diverse contention of the parties is further emphasized by respondent’s counsel, in this pointed language:

“(h) The demand of the appellant was not founded upon a writing, sealed or unsealed, for the payment of money or property within the meaning of the general Statute of Limitation of ten years. [R. S. 1909, sec. 1888.] But was a demand for damages to which the written contract was an incident and was therefore governed by the five-year limitation. [R. S.. 1909, sec. 1889.] And the demurrer to appellant’s third amended petition was therefore also rightfully sustained on that ground. The demand was barred by the five-year- limitation before the first suit was brought August 1,1907. Leathe’s written contract with Knisely promised the latter for his services the $107,500 in installments ‘out of the purchase price’ of the property ‘at such time and place as the said Leathe should receive the principal payment on said real estate’ from Wolcott. But Leathe never received any purchase money from Wolcott; and if Leathe wrongfully refused to perform his contract with Wolcott the latter’s action at law would only have been one for unliquidated damages for such breach to which the five-year limitation would have applied. Knisely’s demand under these conditions was not greater than Wolcott’s. They were analogous.”

We should not leave this case in this kind of a turmoil upon a retrial thereof nisi.

Not only is this diverse contention squarely suggested and argued in the- briefs here, but it was likewise argued in the very demurrer which was sustained by the lower court. In that demurrer it is said:

“Said petition fails to show that the deceased Samuel II. Leathe received from Charles C. Wolcott any money out of which the deceased Charles H. Knisely was to have been paid part, according to the terms of his contract with said Leathe, so that plaintiff’s pretended cause of action herein for damages for breach of contract accrued prior to July 12, 1902, more than five years before this suit was begun.”

Whilst it is true that this second point of the demurrer says something about the five-year Statute of Limitations, yet it is further true .that it urges that the petition fails to state a cause of action because it fails to state that Leathe ever received any money from Wolcott. It is clear that counsel for respondent were urging that plaintiff could not recover because there had been no money paid by Wolcott to Leathe. So that from all standpoints the character of this written instrument between Leathe and Knisely is a vital question here in view of the fact that this case must go back for trial below. Not only so but the very character of the suit is challenged and the court below having sustained the demurrer as a whole we must take the view here that the trial court stood with respondent upon these contentions as to the character of the suit, and the character of the contract. He could not have sustained the second ground of demurrer, as he did, without saying that the written contract was not one “for the payment of money or property,” or without saying that the suit was not upon the. written contract, but was one for damages of which the written contract might be purely evidentiary. So that throughout this record these questions bristle as big as life, and they should be determined at this trial, to the end that another appeal to determine them may be averted. We are of opinion that the demurrer was improperly sustained upon any theory of the case, and shall proceed to discuss the character of this petition and the contract upon which we think the cause of action is based.

II. This action is one upon the contract for the money mentioned therein, and not an action for damages for the breach of the contract. It is clear that the petition proceeds upon that theory. Eliminating from the petition matters relative to the Statutes of Limitations and the status of the parties plaintiff and defendant, it reads:

“Plaintiff for her cause of action against defendant states, that on the 25th day of October, 1900, said Samuel H. Leathe and one Charles 0. Wolcott made and entered into a contract in writing of that date-(a copy of which is herewith filed and marked ‘Exhibit A’), wherein and whereby the said Samuel H. Leathe, in consideration of the sum of one dollar to him paid by said Wolcott, agreed to and did sell to said Wolcott for the sum of $850,000, certain lands situate in the counties of St. Francois and Madison, in the State of Missouri, containing 37,514 acres, and being known as the Mine La Motte and other lands of the said Samuel H. Leathe, particularly described therein, together with all machinery, operating plant, and personal property then and thereon belonging to-the said Samuel H. Leathe; that in and by said contract said sum of $850,000 was made payable as follows: $300,000 in cash, as soon as the report of the engineer of said Wolcott upon said lands was completed and abstracts of title to said property examined by the attorneys of said Wolcott and deed delivered and possession of said property given to said Wolcott; one third of the remainder on or before one year from the date of the delivery of title and possession of said property to him-and one third in two years; and one-third in three years thereafter. That in and by said contract the said Samuel H. Leathe agreed to execute and deliver a warranty deed to the said Wolcott of said property, with abstracts of title showing and conveying a good title to all of said real estate; and it was further especially agreed that said grantee, Wolcott, or his attorneys, should be the sole judges as to-whether such abstracts and facts in relation thereto showed a good and indefeasible title to said lands in said grantor, Samuel H. Leathe, said deferred payments to be secured by a trust deed on said property and notes to bear interest at the rate of six per cent per annum from their date, and that said Wolcott should have a reasonable time before making said first payment to have said lands surveyed, maps made thereof, and also to have his engineers to make a full and complete examination and report upon the property, such examination to be,gin not later than December 1, 1900.

“Plaintiff further states that the said Charles C. Wolcott caused his engineer to begin such examination of said property prior to said December 1, 1900, and that said Wolcott was at all times ready, able and willing to comply with and perform all of the other provisions of said contract to be complied with and performed by him, and he would have complied with and performed said other provisions of said contract to be kept and performed by him, but that said Samuel EL Leathe failed and refused to comply with his part of said contract in this, to wit:

“First: That he failed to execute and deliver to the said Wolcott a warranty deed as he had agreed.

“Second: The said Leathe failed and refused to deliver to said Wolcott, or his attorneys, abstracts of title showing good and indefeasible title to the said real estate described or any abstracts of title thereof whatever, which said abstracts of title said Wolcott requested and demanded of said Leathe January 4, 1901.

“Third: The said Leathe repeatedly offered to sell and sold said premises prior to July 12, 1902, and subsequently sold and conveyed by deed the said property to a grantee other than said Wolcott, or any person or persons to whom he sold the same, to wit: the Mine La Motte Lead and Smelting Company, a corporation.

“ Plaintiff further states that on the said 25th day of October, 1900, the said Samuel El. Leathe by his contract in writing (herewith filed and marked ‘Exhibit B’), promised, that in the event of the sale of said property described in said contract with said Wolcott of even date therewith, to or through said Wolcott or his assigns, for services rendered, the receipt and value of which services were thereby acknowledged, to pay to said Charles H. Knisely, plaintiff’s intestate, or his order, the sum of $107,500 out of the purchase price of said $850,000, the payment of said $107,500 to be made by said Leathe to said Knisely in four payments, the first one of $37,941.19, and three additional payments of $23,186.27 each, at such time and place as the said Leathe should receive the principal payment on said real estate, as per the contract of sale entered into by him with the said Charles C. Wolcott of even date therewith, deferred payments of said amount to bear interest at the rate of six per cent per annum, the same as the original sum in said contract of sale entered into between said Leathe and Wolcott.

“Plaintiff says that by reason of the premises aforesaid, the estate of said Samuel H. Leathe is justly indebted to plaintiff, as administratrix of the estate of Charles H. Knisely, 'in the sum of $107,500 with interest thereon at the rate of six per cent per annum, as aforesaid.

“Wherefore, plaintiff prays judgment against the said defendant for the sum of $107,500, together with interest and costs.”

Finding Punchsissr fop Lands: owner’s Liability to U 6 niia A. study of the foregoing petition shows that the plaintiff is suing upon the contract of Leathe with Knisely for the money therein agreed to be paid, and not otherwise. The pleading of the Leathe-Wolcott contract was for the purpose of showing that Leathe had actually sold the property to Wolcott, and had actually accepted the purchaser found by Knisely, and for that reason the commission mentioned in the Leathe-Knisely agreement had been in fact and in law earned. The pleading of the other extrinsic facts was but to show that tbe money was due at the date of the demand or suit. The petition proceeds upon the theory, and rightfully so, that if "Wolcott purchased the property and a completion of that purchase by exchange of deeds and trust-deeds was prevented by the act of Leathe, then the money mentioned in the Leathe-Knisely contract at once became due, and this too, without reference to the payment of any money by Wolcott. In other words that Leathe could not wilfully refuse to enforce the Wolcott contract, and thereby defeat the promise to pay made in. the Knisely contract. It follows that counsel for respondent are in error when they insist that the action is one sounding in damages for a breach of contract. It also follows that the circuit court was in error if it followed this bent of counsel’s mind. It is further true that the court was in error, when in sustaining the second ground of the demurrer, that the petition stated no cause of action without the allegation that the money had been paid by Wolcott. That one having an enforceable contract of sale with another person, induced and procured by an agent, can not defeat the agent’s commission by refusing to enforce the contract, is well settled law. His refusal to carry out the contract, or, in the event he himself has signed the contract of sale with the purchaser, his refusal after-wards to enforce such contract renders him liable for commission in the sum agreed upon.

Thus in Roche v. Smith, 176 Mass. l. c. 597, is it said:

“Where the broker is employed to get a customer to buy and pay for his principal’s land, and it turns out that the customer is not able to pay for the land, it is settled that his inability to do so does not deprive the broker of his commission, provided the principal made a valid and binding agreement for the sale of the land with the customer produced by the broker. [Ward v. Cobb, 148 Mass. 518; Burnham v. Upton, 174 Mass. 408, 409.] The ground on which this is settled is that by entering into a valid contract with the customer produced by the broker the principal accepts the customer as able, ready, and willing to buy the land and pay for it. In such a case the decision would have to be the other way were it not that, by entering into the contract with him, the principal accepts the customer produced by the broker; what the broker is employed to do is to produce a customer who will buy and pay for his principal’s land. [Fitzpatrick v. Gilson, 176 Mass. 477.] If it turns out that the customer produced by the broker is not able to pay and does not pay for the land, the broker has not performed his duty and has not earned his comission; and it is. only because the principal aeepts the customer by entering into a valid contract with him, that it is held in cases like Ward v. Cobb that the broker has earned his commission. [Coleman v. Meade, 13 Bush, 358; Donohue v. Flanagan, 9 N. Y. Supp. 273; Francis v. Baker, 45 Minn. 83; Wray v. Carpenter, 16 Cal. 271; Lockwood v. Halsey, 41 Kans. 166; Springer v. Orr, 82 Ill. App. 558.]

; ‘ The law is settled in other jurisdictions in accordance with Ward v. Cobb, 148 Mass. 518. See Francis v. Baker, 45 Minn. 83; Wray v. Carpenter, 16 Cal. 271; Love v. Miller, 53 Ind. 294; and generally that a broker makes out a case for a commission earned by proving a contract made. See Cook v. Fiske, 12 Gray, 491; Rice v. Mayo, 107 Mass. 550; Keys v. Johnson, 68 Pa. St. 42; Veazie v. Parker, 72 Maine, 443; Conkling v. Krakauer, 70 Tex. 735, 739.”

In the later case of Johnson v. Holland, 211 Mass. l. c. 364, the same court says:

‘ ‘ The defendant’s testator having accepted the proposed purchaser by entering into the written contract of sale with him, it was not necessary for the plaintiffs to prove at the trial that the purchaser was able, ready and willing. When the valid written contract was executed the commission of the plaintiffs was earned. [Roche v. Smith, 176 Mass. 595, 597, and cases cited.] The plaintiffs were not. obliged to go further.”

In this State, Smith, P. J., in Wright v. Brown, 68 Mo. App. l. c. 583, among’ other things said:

“And when the purchaser is accepted and the contract executed, the principal cannot be heard to say when the agent calls on him for compensation, that, ‘you did not produce a purchaser who was financially ■ able to perform the contract and respond in damages,, in case of nonperformance by him, and therefore I owe you nothing for your services.’ ”

The same doctrine is approved by Johnson, J., in the more recent case Glade v. Mining Co., 129 Mo. App. l. c. 455.

For a long line of authorities from all parts of the United States, along the same line, see brief of appellant. The doctrine bears the impress of reason. The agent brings to the seller a purchaser. The seller does not have to accept any ldnd of a purchaser, but he may do so. The seller can size up the purchaser and either accept or reject him. If he accepts him,, he at once becomes liable to the real estate agent who-produced the customer, although the purchaser may not afterwards meet the expectations of the seller. The fact, if it be a fact, as alleged in the petition, that 'Leathe accepted Wolcott as a purchaser by entering-into a contract of sale with him, if he did enter into-such contract, would render Leathe liable to Knisely for the agreed commission, unless there was some express agreement to the contrary. As said, the rule is-based upon the idea that the seller does not have to-accept an unworthy or unreliable purchaser, but that he may accept him if he choose so to do, and.if he does accept the purchaser the deal between him and his real estate agent becomes a sealed .book. The commission has been earned and must be paid.

saie of Real III. The paper writing between Leathe and Wolcott was a sale of the property to Wol-Cott by Leathe. Such contract, omitting the description of the land, reads:

In consideration of one dollar, receipt thereof is hereby acknowledged, I have this day agreed to sell to Charles C. Wolcott, party of the second part, all of the following described land, situated in the counties of St. Francois and Madison, in the State- of Missouri, containing thirty-seven thousand (37,514) five hundred and fourteen acres, described as follows:

Together with all machinery, operating plant and personal property now thereon, belonging to said vendor, for the sum of eight hundred and fifty thousand ($850,000.00) dollars, this amount payable as follows: Three hundred thousand dollars in cash as soon as engineers’ report is completed upon the property and abstracts of title are examined by the attorneys of the party of the second part, deed delivered and possession given; one-third of remainder on or before one year from date of delivery of title and possession, one-third in two years, and one-third in three years.

Said party of the first part agrees to execute and deliver a warranty deed, with abstracts of title, showing and conveying good title to all the real estate above described.

It is especially agreed that said grantee or his attorneys shall be the sole judge as to whether such abstracts and facts in relation thereto show a good and indefeasible title to said lands in grantor herein mentioned. Deferred payments to be secured by á trust deed on the property, and notes to bear interest at the rate of six per cent (6 per cent) per annum from their date, payable on or before.

It is further agreed that the party of the second part shall have a reasonable time before making first payment to have lands surveyed and maps made of same, also to have their engineer make a full and complete examination and report upon the property, such examination to begin not later than December 1, 1900.

A failure by the party of the second part to comply with the above contract or to make such payments as they come due, shall make this contract null and void.

Witness our hands this 25th day of October, 1900.

[10-cent II. S. Rev. Stamp affixed and cancelled]

S. H. Leathe,

Charles C. Wolcott.

When Leatlie signed this contract with Wolcott, if he did sign it, his liability to Knisely, the procuring agent, became fixed, unless sucb liability was defeated by some express agreement to tbe contrary. And this brings us to the Knisely contract as pleaded and sued upon in this case.

owner’s Failure to Complete Sale. IY. The Knisely contract can well be gathered from the pleadings heretofore set out, but that there may be no misunder- , , , standing we quote it thus:

“In the event of the sale of the Mine La Motte estate and additional lands belonging to me (described in contract with Charles C. Wolcott of even date herewith) amounting in total to 37,500 acres, to or through Charles C. Wolcott of New York or his assigns, for services rendered, the receipt and value of which are hereby acknowledged, I hereby promise and agree to pay to Charles H. Knisely, of St. Louis, Missouri, trustee, or his order, the sum of one hundred and seven thousand five hundred ($107,500) dollars out of the purchase price of $850,000; the payment of said $107,500, to be made by me to said Charles H. Knisely, trustee, or his order, in four payments, the first one of $37,911.19, and each of the three additional payments of $23,186.27 each, at such time and place as I receive the principal payment for said real estate as per contract of sale entered into by me with Charles C. Wolcott of even date herewith; deferred payments of the amount above written to bear six per •cent interest per annum, the same as the original-principal sum.

“Done at St. Louis, Mo., 'this twenty-fifth day of October, A. D. 1900. S. H. Leathe.”

This contract, at least when coupled with the allegations that Wolcott or his assigns stood ready and willing to perform and Leathe refused and failed to perform the Leathe-Wolcott contract, rendered Leathe liable at once for the full amount agreed to be paid in the Knisely contract as and of the date of such refusal, and this too in a suit upon the contract. [Curtis v. Sexton, 201 Mo. l. c. 230.] In that case Valliant, P. J., said: “In the case at bar there is an express agreement to pay the amounts the plaintiff paid on account of his purchase and interest thereon, the only necessity for going beyond the paper writing to make out the case is to show the performance of the contract on the part of the plaintiff and the breach on the part of the defendant. The action is founded on the written contract and falls within the ten-year section of the Statute of Limitations.”

So in this case. The action is upon the contract, and at the very most it is only required to go outside of the contract to show that Wolcott was ready and willing to perform, and Leathe refused to perform, the Wolcott-Leathe contract. In fact, under all the case law, except that of Maryland, the fact that Leathe accepted Wolcott as a purchaser, and he himself contracted with him as such, eliminates the proof that Wolcott was able, ready and willing to perform as is indicated by the case quoted from and cited, supra, unless, of course,' some fraud was practiced upon Leathe in reference to the contract.

The circuit court seems to have so misunderstood the case, and the diverse views of counsel in the briefs are such, that the case should not be sent back without some expression from this court upon the questions. With these added views, I concur.

Woodson, P. Jv and Bond, J., concur in these views.