126 Mo. App. 221 | Mo. Ct. App. | 1907
(after stating the facts)'. — r(l) The payment of the judgment was not voluntary, but coerced by the posture of Richardson’s affairs. There is nothing to show it was done pursuant to an agreement substituting a new liability for the judgment. Nor was it a compromise, for respondent made no concession,
“It is obvious that there is an essential difference between one who pays a judgment against him and one who accepts payment of a sum awarded him by a judgment. Payment by a party against whom a judgment is rendered may often be necessary to protect his property from sacrifice, and what a party does to prevent the sacrifice of his property cannot, with any tinge of justice, be held to preclude him from assailing the judgment. Our cases holding that payment by the defendant does not estop him from prosecuting an appeal rest on solid ground and are sustained by the decisions of other courts. The principle that a party may protect his property from sacrifice by a forced sale upon an execution, sustains the decision that a defendant does not preclude himself from prosecuting an appeal by securing an entry of replevin bail. If the defendant should agree not to prosecute the appeal and in consideration of such an agreement the creditor should abate part of the recovery, extend the time of payment, or do some other act of similar character, then, the right of appeal would be waived since the controversy would be terminated.” [Elliott, App. Proc., sec. 152.]
Other decisions in accord with the foregoing are: Chapman v. Sutton, 68 Wis. 657; Oneida County v. Hixon, 82 Wis. 515; Factors etc. Co. v. New Harbour Co., 37 La. Ann. 233; Thayer v. Finley, 36 Ill. 263; Belton v. Smith, 45 Ind. 291; Hayes v. Nourse, 107 N. Y. 577; Watson v. Kane, 31 Mich. 60; Burroughs v. Mukle, 22 Fla. 572; Gordon v. Gibbs, 3 Sme. & Mar.
2. The theory of the court below that the consideration for the note was simply the exclusive right given Abt to purchase the land within three months, is unsound in view of the stipulation that if Abt elected to purchase wthin said time, the $500 paid for the option should be applied on the first installment of the purchase price, which was to be paid on the delivery of the deed. It is plain that granting Abt the option on the property for three months, was not the entire consideration for his note, but that it had this further consideration: In the event of an actual purchase by him, the amount of the note was to go in part payment for the land. Besides, the right to purchase was worthless unless Lumaghi could and would convey in case of an election to purchase. Hence if Abt offered to complete the deal and respondent refused or was unable to convey the land to him, the consideration of the note wholly failed and there could be no recovery on it by the original payee. [R. S. 1899, secs. 645, 3947.] The doctrine that a vendee of land who has been put in possession, cannot defend against an action for the price without surrendering possession, is not applicable to this case; but rather the doctrine that a vendor cannot recover the purchase price without first conveying, or offering to convey. [Pershing v. Canfield, 70 Mo. 140; Olmstead v. Smith, 87 Mo. 602; McLeod v. Snyder, 110 Mo. 298, 302, 19 S. W. 494; Devore v. Devore, 138 Mo. 181, 39 S. W. 68; Davidson v. Van Pelt, 15 Wis. 341; Pursley v. Good, 94 Mo. App. 382, 389; 68 S. W. 218; Davis v. Watson, 89 Mo. App. 15, 27.] In Pershing v. Canfield, just cited, the contract of sale was like the one before us, in providing for conveyance by warranty deed on payment of the first installment of the purchase money. It was held that the plaintiff could not recover
3. In ruling that ability and willingness to convey on the part of Lumaghi were conditions of his recovery, we do not accept the theory of Abt’s counsel that the absence of respondent from his office on December 17 and his failure to leave a deed with some person authorized to close the transaction, was such a breach of the agreement as necessarily forfeited all Lumaghi’s rights under the contract, including the right to recover on the note. This result did not follow unless he was evading compliance with his agreement (acting in bad faith) or was unable to comply; for while he was bound to convey, the law allowed him a reasonable time to do so. Time was of the essence of the option agreement to the extent of requiring Abt to give notice by December 17th of his election to take the land. [Pomeroy, Spec. Perf. Cont., sec. 387; Glass v. Rowe, 103 Mo. 513, 15 S. W. 334; Hollman v. Conlon, 143 Mo. 369, 45 S. W. 275; Dunaway v. Day, 163 Mo. 415, 63 S. W. 731.]
The judgment is reversed and the cause remanded.