159 Mo. App. 656 | Mo. Ct. App. | 1911
(after stating the facts). — Respondent has not aided us with a brief and we have been unable to discover' any ground upon which to sustain the decree under the evidence before ns. There is no doubt in our minds that Duffner, the real party in interest, by Ms agents, intentionally and with a mind to deceive defendant, misrepresented to her that Robinson and not Duffner was the real purchaser, and that she relied on the misrepresentation and was deceived by it and would not have entered into the contract had she not been so deceived. It is apparent then that if specific performance be decreed in this case a fráud practiced on the defendant will thereby be made snccessful. A. court of equity will not lend its aid to such an end. ‘ ‘ There is no maxim which a court of equity more unequivocally insists upon than that he who comes asking its aid must come with clean hands. A court of equity will not aid a party to commit a fraud. ’ ’ [Seibel v. Higham, 216 Mo. 121, l. c. 137, 115 S. W. 987.]
It might be urged, however, that defendant will receive the same price from Duffner which she .was willing'to take from Robinson and therefore she was not prejudiced by the deception; and Fry says that it is necessary, to constitute á misrepresentation which will prevent a specific performance, that the misrepresentation “be shown to have operated to the prejudice of the defendant.” [Fry, Spec. Perf. (3d Ed.), sec. 697.] But we do not believe .that in a'suit for specific performance the prejudice need be a pecuniary one. It may consist in depriving the defendant of something wMch induced her to enter into the contract. In this case the property was the defendant’s; she might keep it, or she might consent to part with it for such consideration as she saw fit, whether it be a price in money or the personalty of the grantee, or both. It is clear that she was unwilling to sell to Duff ner. To that extent she made the personalty of the