173 Mo. App. 660 | Mo. Ct. App. | 1913
—Plaintiff recovered judgment for the sum of two hundred dollars with interest, and defendant appealed. The controversy grew out of an agreement' to sell a dwelling house in Pierce City, Mo. The plaintiff, after having looked at the house in company with his wife, agreed to purchase the same of the defendant for a consideration of fourteen hundred dollars and paid two hundred dollars as earnest money. The contract entered into for the purchase of the property was partly written and partly oral. The defendant signed the following receipt:
“Pierce City, Mo., April 25, 1910.
“Received of Mr. P. St. Clair, $200 as part payment on Lots 17 and 18, Block 4, Elm Add. Pierce City, Mo., balance of $1200 to be paid to me when the title is clear and deed tendered, consideration $1400.
“O. F. Hellweg.”
It will be . noticed that this receipt does not call for an abstract, or fix any number of days within which the deal should be completed- or the date on which it should be consummated. On the question of time, there is a dispute, plaintiff’s evidence being that the deal was to be completed within ten days and defendant’s evidence being that it was to be completed within a reasonable time. While the written memorandum discloses that the title was to be clear, both plaintiff and defendant testified at the trial without objection ■that it was understood that “it must be perfectly clear without a shadow of doubt,” and- that defendant was to furnish an abstract showing this. As to the time, the jury found for the plaintiff in his contention that it was understood that such title was to be furnished within ten days. The time not having been fixed, and both parties treating the provision of the written receipt—“when the title is clear”—as meaning that the title would be without a shadow of doubt, we must
The plaintiff, after paying the two hundred dollars, went to Exeter in this State, and the defendant within three days forwarded an abstract to the plaintiff accompanied by the following letter:
“Pierce City, Mo., April 28, 1910.
“Mr. Peter St. Clair:
“I have had abstract to Hellweg property brought to date and examined by Mr. Carlin, attorney, and you will find his written opinion of same enclosed. Am sure the title is A No. 1. I also had warranty deed made and signed by Mr. Hellweg and wife so when it is convenient for you to close the matter up we are ready. Mr. Hellweg would like to sell you his range and linoleum on the kitchen; also the window shades, as they are all fitted to the house. So hoping to hear from you at an early date, I am yours truly,
“Tobe Bear.”
The sender of the above letter, Tobe Bear, was the agent for the defendant who made the negotiations.
Plaintiff’s testimony is that he turned over the abstract thus furnished him to his attorney at Cassville for examination, and that certain defects and irregularities were found to exist in the title according to this abstract and that the abstract did not show good title; that he went back to Pierce City with the abstract and the written opinion of his attorney setting out the alleged defects; that this was eleven days after the contract was made, plaintiff having held the abstract without disclosing any objections, at which time he informed the defendant that the title was defective and demanded the return of the two hundred dollars. Plaintiff also testified that he informed the defendant that the title which he contracted for not having been
As before stated, while there was nothing in the written contract calling for an abstract of title, the construction placed upon the contract by the conduct of the parties shows that an abstract showing a perfect title was to be furnished. Therefore, we must hold against the appellant’s contention that he should have been permitted to show that his title was good by adverse possession because title by adverse possession is not ordinarily evidenced by an abstract. The decisions hold that where a contract calls for an abstract showing good title, the call for an abstract would eliminate the title by adverse possession. [Thompson v. Dickerson, 68 Mo. App. 535, 540; Ives v. Kimlin, 140 Mo. App. 293, 124 S. W. 23; Austin v. Shipman, 160 Mo. App. 206, 215, 216, 141 S. W. 425.]
Where parties draw a contract the terms of which are that the abstract first furnished must show a complete title without defects, and such abstract when furnished does not come up to the requirements, the courts would enforce the contract of the parties; or where a party furnished an abstract, objected to, and stood on the abstract furnished as complying with the contract, and the court finds that it does not meet the requirements, the vendee would be relieved. [Austin v. Ship-man, supra, and eases cited.] But there is nothing we can see from the evidence of the parties in the case at bar or from the letter of Tobe Bear accompanying the abstract which would indicate that the abstract as first furnished was an abstract which defendant intended to stand on as showing good title, or that this abstract as furnished was all that defendant intended to produce for plaintiff’s inspection. The letter merely expressed the .opinion that the abstract showed good title—this, of course, being partly based on the opinion of defendant’s attorney. The letter also says that the-warranty deed is prepared and that defendant is ready to com
Applying this rule to the present case, it would' mean that if the original agreement was to be closed within ten days and the defendant furnished his abstract of title within three or four days, then the plaintiff, if he intended to insist on the time limit, was bound to point out his objections within such time as
Instruction Np. 7 asked by defendant which was refused was properly refused because of the second paragraph of the same which authorized the jury to return a verdict, for the defendant merely because the abstract was retained ten days without giving defendant an opportunity to correct it. If the title was in shape to be made good and the abstract could have been made to show such good title, defendant should have been given the opportunity to do so; but if the title was so defective that it could not have been made good or good title could not have been shown by the abstract, then the plaintiff should prevail. The second paragraph of the instruction ignores this proposition. The first paragraph of the instruction announces a correct principle of law and an instruction embodying such principle should be given.
Besides, if time was of the essence of ’this contract, as the plaintiff’s evidence would indicate, at the time the contract was made, plaintiff certainly waived it by taking the abstract which was sent to him on April 28th,. three days- after the negotiations were had, and. retaining it until after the ten days had expired, which he claimed was the' time in which the deal was to be closed, and then refusing to go further with the transaction, refusing to point out defects or to allow the defendant to correct them, and demanding the return of the two hundred dollars. Where time is of the essence of the contract, courts will enforce a strict com
The court also committed error in refusing to receive in evidence the records of the probate court in reference to the administrator’s deed in the chain of a title. This was properly admissible in evidence as tending to show that if plaintiff had pointed out the defects t-o the title with reference to this deed and had given defendant an opportunity to correct the same, he could readily have done so.
Instruction No. 1 given for the plaintiff authorized a recovery based on the promise of the defendant to perfect the title and give plaintiff possession of the property in ten days. The evidence discloses fully that plaintiff never demanded possession and in fact did nothing after signing the contract on April 25th until eleven days had elapsed, at which time he refused to consummate the deal, not because of possession being denied, but because he claimed an abstract showing perfect title had not been furnished and that defendant’s title -was defective. Plaintiff’s refusal to take the propertjr was not based on failure to get possession and this question is eliminated.
The judgment is reversed and the cause remanded for anew trial.