| Mo. | Oct 15, 1884
This was a suit on the following contract :
“Pulton, Mo., Peb. 22nd, 1876.
“This writing made and entered into between John A. Plood of Pulton, Missouri, party of the first, and James L. Stephens of Columbia, Missouri, party of the second part, witnesseth that in consideration of an ex- ■ change in real estate this day made and entered into between said parties, said Plood having executed and ■ delivered to said Stephens a quit claim deed to certain property in Denver, Colorado, in said deed described, being a house and 2 lots Nos. 7 and 8 in block 174 in the eastern division of the city of Denver, and said Stephens having executed and delivered to said Plood his warranty deed for 83 acres of land in Callaway county, Missouri, in said deed described, said Plood doth hereby bind and obligate himself to pay to said Stephens, in case he is dispossessed of said premises in due course of law by a failure in the title to said Denver property conveyed, the sum of five hundred dollars; but should said Stephens at any time dispose of said property, then .said five hundred dollars is not in any event to be paid. And in consideration of the premises said Stephens doth hereby bind and obligate himself and agree to pay said Jno. A. Plood the full amount for which said Denver property may at any time be sold by him or his agents over the sum of fifteen hundred dollars and up to the sum of two thousand dollars. Said amount to be due on said Plood’s part in thirty days after notice of the ouster of said Stephens as aforesaid, and said amount to be due- by said Stephens as aforesaid, in thirty days after a sale of ■said Denver premises. Each amount to bear ten per •cent, interest from due as aforesaid.
*221 “Witness our hands and seals the day and year first above written.
Jas. L. Stephens.
John A. Flood.”
The evidence tended to show that some time after' the execution of the contract Flood died ; and plaintiff, as his executor, on the 1st day of April, 1880, procured a purchaser for said Denver property, who offered defendant $2000 in cash for a quit claim deed thereto, and plaintiff then requested defendant to sell said property to said purchaser or to pay plaintiff the sum of $500' and release said Flood from further liability on his limited warranty. Defendant refused to do either; and. thirty days thereafter, to-wit: on the first day of May, 1880, the plaintiff made demand of defendant for the $500 due under the terms of the contract, which defendant refused to pay. Whereupon plaintiff brought this suit to recover said $500 with interest thereon at 10 per cent, per annum from the 1st day of May, 1880. There-was a waiver of jury trial, the case submitted to the court which found for the plaintiff, and entered judgment thereon for $556.25, from which the defendant appeals to this-court.
The appellant insists that this $500 will not be due until 30 days after he shall have actually sold the property for $2,000 or more. Respondent insists that it was-due 30 days after he could have sold it for $2,000 or more. These two opposite opinions present the question which is now submitted to the court.
In the construction of contracts the general ruléis to give effect to the real intention of the parties, whenever that can be ascertained by the words of the writing: and the actual state of the facts. Cleaveland v. Smith, 2 Story’s Rep. 289. In Peery v. Cooper, 8 Mo. 205" court="Mo." date_filed="1843-07-15" href="https://app.midpage.ai/document/peery-v-cooper-6610929?utm_source=webapp" opinion_id="6610929">8 Mo. 205, it is said: “Contracts must be construed according to the plain intent and meaning of the parties.” Ubsdell & Pierson v. Cunningham, 22 Mo. 124" court="Mo." date_filed="1855-10-15" href="https://app.midpage.ai/document/ubsdell-v-cunningham-7999701?utm_source=webapp" opinion_id="7999701">22 Mo. 124, is to the same effect. Salmon Falls Mfg. Co. v. The Portsmouth Co.,
By the contract, if Flood’s title failed and Stephens should be dispossessed on account thereof, Flood was to pay $500. On the other hand, Stephens bound himself to pay to Flood the full amount the Denver property might at any time be sold for over $1500 ; the amount to be due in thirty days after a sale of the Denver premises. Appellant insists that the Denver property not having been sold, he is not liable to pay; and that the plaintiff cannot recover until there shall be an actual voluntary sale on defendant’s part. In Vermont Marble Co. v. Mann, 36 Vt. 697" court="Vt." date_filed="1864-02-15" href="https://app.midpage.ai/document/vermont-marble-co-v-mann-6577683?utm_source=webapp" opinion_id="6577683">36 Vt. 697, “the plaintiff sold the defendant a quantity of marble to be used by the defendant in the -construction of a walk for the United States government, for which defendant was to pay plaintiff, when his contract with the government should be accepted, and he should receive his pay from the government.” There was some delay in the payment by the government caused by further contracts with the defendant. And the court held that “the plaintiff’s demand became payable whenever the defendant, by due diligence, might have received payment from the government;” that “the delay having
But from the mere reading of the contract under •consideration the intention of the parties is manifest. The obligation on Flood’s part was clearly dependent on the title, and the contingency of Stephens being dispossessed by reason of failure of title. It amounted to collateral warranty of title and possession to the extent of five hundred dollars. On the part of Stephens the contract provides that: “And in consideration of the premises, said Stephens doth hereby bind and obligate himself, and agree to pay said John A. Flood the full amount for which said Denver property may at any time be sold by him or his agents,” etc. Does this indicate the intention of the parties to have been that, if a bona fide offer for said property had been made to Stephens afterwards, he could, by a refusal to sell, release himself from the payment to Flood ? On the contrary it seems manifest to me that the ability to sell, or a bona fine offer to purchase, fixes the liability of Stephens, whether he should accept the offer or not. He could refuse to sell for the offer, but would be then bound to pay Flood. He would certainly have no right to defeat the very purpose of the contract on his part, by preventing the happening of the contingency that would make him liable. “If a party ■enters into an arrangement which can only take effect by the continuance of a certain existing state of circumstances, there, is an implied agreement on his part, that he will do nothing of his own motion to put an end to that state of circumstances under which alone the arrangement can be operative.” Addison on Con., p. 353, sec. 236; McIntyre v. Belcher, supra; Stirling v. Maitland, 117 Eng. Com. Law R. 840; Hathaway v. Payne, 34 N.Y. 92" court="NY" date_filed="1865-09-05" href="https://app.midpage.ai/document/hathaway-v--payne-3609373?utm_source=webapp" opinion_id="3609373">34 N. Y. 92.
Stephens entered into the contract, no doubt, in good faith, and would have insisted on the recovery of the $500 from Flood, had his title failed and had he been