173 Mo. App. 301 | Mo. Ct. App. | 1913
—The plaintiff recovered judgment for $500 against the defendants, husband and wife, for damages from defendants’ refusal to perform their contract and convey to plaintiff two town lots in an addition to the city of Springfield. The evidence shows that defendants had platted an addition to Springfield, the legal title to which was in the wife, and that they were engaged in selling these lots on time payments. The husband was the active agent of the wife in selling the lots, making contracts with reference
The plaintiff made thirteen payments of ten dollars each on these lots, the last payment being for April, 1908. None of these payments were made on the first day of the month. Some of them were made a few days in advance and some of them after being due for .nearly a month. The time of making the payments
The payment due April 1, 1908, was paid on April 3, and no further payments made during that year. No declaration of forfeiture in writing or otherwise was made for this failure. In January, 1909, the plaintiff desired to renew his contract and commence making the monthly payments again. He saw the husband with reference to this and was again assured that all that defendants wanted was the balance of the money due. The plaintiff thereupon paid five dollars and agreed to pay five dollars more, making a month’s payment, before the end of that month. As the contract was at the bank, the husband wrote out and handed the. plaintiff the following memorandum to be presented to the bank: “State Savings Bank. Let Geo. W. Robberson pay on his contract commencing in January and continue his payments each month at ten dollars per month according to the contract. He
Plaintiff took this memorandum to the bank, paid the five dollars, and same was deposited to the wife’s credit. The evidence is that at this time plaintiff again said that he thought he would be able to raise the money to pay the contract in full and was assured that such would be all right and the money would be accepted. On the faith of this, the plaintiff succeeded in borrowing sufficient money, $250, to pay all that was due on the contract, inclusive of interest on the deferred payments. On January 29, 1909, this sum was tendered to the defendants and a request made for a deed, but same was refused.
It is a little’ difficult to understand the precise grounds of this refusal. In the wife’s evidence she seems to put it on the ground that plaintiff was demanding that the deed be made, not to plaintiff in person, but to his attorney, Len Walker, and that she refused to make the deed to the attorney. Her evidence and that of her son, who heard what was said when the tender was made, shows that she was willing to make the deed to the plaintiff in person. Knowing, however, that plaintiff could at once have made a deed to his attorney or anyone else, we fail to see why she should refuse on this ground or why the plaintiff would not accept a deed to himself. This, however, is contradicted by plaintiff and his attorney, who say that there was no demand for or talk of the deed being made to anyone other than plaintiff. The evidence also is that just after the tender of the full amount due, the defendants notified the bank holding the contract not to accept any further payments from the plaintiff on this contract.
The defendant, Mrs. Clark, says she knew nothing of the last five dollars payment or any agreement of
It may be doubted whether the time of making payments was of the essence of this contract. There is a provision in the contract to the effect that interest is to be charged on the deferred payments at six per cent. This negatives an intention to make the time of payments essential and of forfeiting the contract unless each payment was made promptly on the first of the month; for in that case'there could be no deferred payments. However this may be, the law is well settled that even where time is of the essence of the contract and an exact date for the payment of each installment is fixed by the contract, this requirement may be waived either by express agreement or by the conduct of the parties. Thus it is said in Mastin v. Grimes, 88 Mo. 478, 485, “Even if by the express terms of the contract a day of payment be fixed and time declared to be of the essence of the contract, still this is no bar to the time of payment being postponed, or to this essential element being altogether, waived. And if, after the expiration of the time limited, the parties continue to deal together or to treat the contract as still existing this amounts to a waiver. [1 Story on Eq. Jur., sec. 776; Melton v. Smith, 65 Mo. 315;
Besides this, there is abundant evidence in the case to support the finding that defendants in January, 1909, expressly agreed to waive any forfeiture for past defaults in making payments and that plaintiff would be allowed to continue his.monthly payments beginning with that date. Such is the effect both of the oral evidence and the written order to the bank then holding the contract. On the faith of this understanding the five dollar payment was made and put to the credit of Mrs. Clark in the bank. As before stated, this was not refunded or a tender of the same made to plaintiff. Even if Mrs. Clark did not know of or authorize the receipt of this payment made.to her husband acting as her agent, she could not while holding the fruits of his unauthorized act escape its burdens. [Davis v. Krum, 12 Mo. App. 279; Watson v. Bigelow, 47 Mo. 413; Ruggles v. Washington County, 3 Mo. 496; Huttig Sash & Door Co. v. Gitchell, 69 Mo. App. 115.]
Defendant’s greatest insistence in this court is that plaintiff only had the right to pay by monthly installments and not in one lump sum. They say that such is the strict letter of the contract and cite Suess v. Insurance Co., 193 Mo. 564, 575, 91 S. W. 1041; Har
The instructions submitting this case to the jury are not criticised. The jury found for the plaintiff and it cannot be claimed but that there is some evidence to support this finding: The amount of the