Massey v. Butts

ALLEN, J. This is an action prosecuted by the administratrix of the estate of Robert D. Massey, deceased, to recover of defendants the sum of $1000, as> for money had and received. The trial below, before the court without a jury, a jury having been waived, resulted in a judgment for defendants, and the case is here on plaintiff’s appeal. The defendants are real estate brokers in the City of St. Louis, constituting a co-partnership doing business as the Butts Realty Company; and at the time here involved one Hobbs was an employee of defendants. The record shows that Robert D. Massey was a resident of Greene County, Missouri, but it appears that he had some connection with a business establishment in the City of St. Louis, and that at the time of the transaction here in question he was in the State of Arkansas. In April, 1909, he paid to defendants, by sight draft payable to their order, $1000, as constituting a payment of earnest money on the purchase by him of a certain lot of ground in the City of St. Louis, of which one Wm. C. Young was the owner. For reasons to be noted later, such purchase was never consummated; and MJassey demanded said sum of defendants without avail. He died on November 7, 1909',; and after his death this action was begun by his personal representative. In the transaction in question Massey dealt with defendants ’ employee Hobbs by correspondence. Hobbs was not permitted to testify; and the facts involved appear mainly from the documentary evidence adduced and certain admissions of counsel. Only two witnesses testified, one being Young, the owner of the property, and the other one Rietz, an employee of the-Mercantile Trust *63 Company, of St. Louis, which, institution was Young’s agent for the sale of his said property. The record discloses that as early asi March 2,7,1909, Massey was in correspondence with Hobbs in regard to the purchase of the lot mentioned, which, it appears, Massey contemplated purchasing for the purpose of erecting thereon an apartment building. On the last mentioned date Massey wrote a letter to Hobbs referring to the “lot deal,” stating that he would send to his counsel (Judge Hough) in the City of St. Louis a check for $1000 with instructions to deliver it to Hobbs, and adding: “I want you to stick to me in this matter Joe . . . until the house is completed. And give me whatever assistance you can, with a view to pulling the thing off in a successful way. It may be that I will be in St. Louis by the first of May in which case I will certainly call on you to advise me; with regards, and thanking you very much for your kindness in looking after my interest in this 'matter, I remain,” etc. On April 3, 1909, Massey again wrote to Hobbs, saying': “As you appear to' have fallen down on the lot proposition with the Mercantile Trust Company, my check for $1000 earnest money you will please return, ’ ’ etc. It is to be inferred that this check was returned to Massey. In a subsequent letter to Hobbs, of date April 17,1909, Massey made inquiry regarding the purchase of the lot. On April 21, 1909, Hobbs, as defendant’s agent, wrote to' Massey sending him a copy of a “contract of sale” — referred to also as an “earnest money receipt”— dated said April 21, 1909, and asking Massey to sign the paper and return it with his check for $1000. Three days later Massey, who was then at Bentonville, Arkansas, wrote to Hobbs acknowledging receipt of the latter’s last mentioned letter, and enclosing a draft for $1000 drawn by him on the Carleton Dry Goods Company of St. Louis, payable to the order of the Butts Realty Company. He also signed the contract and returned it, or caused it to be returned, to Hobbs. This instrument, signed also ’ by “Butts Realty Co., by J. M. Hobbs,” is as follows: *64 “CONTRACT OF SALE” St. Louis, Mlo., April 21, 1909. “Received, of Robert D. Massey tbe sum of one thous- and dollars ($1000) earnest money, and as part of the purchase money for a certain parcel of vacant property, situate in the city of St. Louis, State of Missouri, in the city block No. 3875', ... . being the northwest corner of Belt and Waterman Avenues, which property is this day sold to said Robert D. Massey for the total sum of nineteen thousand ($19,000) dollars, payable as follows: In cash. “The title to said property to be perfect of record and in fact, and to be conveyed by warranty deed free from liens and encumbrances, except taxes, both general and sprinkling, for the year 1909 and thereafter. “If the title be found imperfect and cannot be perfected within a reasonable time, above earnest money is to be refunded together with a reasonable fee for examination of title not to exceed fifteen ($15) dollars, and this sale is to be off. “The sale under this contract to be closed within thirty days from date of approval, or on or before May 21, 1909, and if not closed by that time, owing to the failure or neglect of the purchaser to comply with the terms herein, the earnest money is to be forfeited to the seller,- sale to be closed at office of Butts Realty Co., St. Louis. This contract and sale is subject to the approval of the owner. “It is further agreed that this contract will be approved within ten days or earnest'money refunded. . “I agree to the above terms and conditions: “R. D. Massey. “I hereby approve the above sale, . . . 1909. Butts Realty Co., Agents, By J. M. Hobbs.” The evidence shows that the contract, thus signed by Massey, and the draft executed by him, when received by Hobbs as the representative of the Butts Realty Company, were delivered by the Butts Realty Company to the Mercantile Trust Company, agent of *65 Young, the owner of the property; the Butts Realty. Company having indorsed the draft to the order of the trust company. The trust company thereupon executed to the Butts Realty Company a receipt which was introduced in evidence, over plaintiff’s objections, and which is as follows: “St. Louis, April 26, 1909. “Received of Butts Realty Co., Agts. for R. D. Massey, One thousand and iio/100 Dollars, earnest money account purchase lot 110 ft. x 205¡ ft. on Belt in C.~ B. 3875 as per Butts Realty Co. E/M contract dated April 21,1909', property owned by W. C. Young and wife ‘ ‘ Mercantile Trust Company, “By M. F. Reitz.” "What arrangement or understanding there was between the Butts Realty Company and the Mercantile Trust Company in regard to the matter does not directly appear from the evidence. By admission of defendants’ counsel it does appear, however, that the Butts Realty Company “were acting with the Mercantile Trust Com> pany,” did not claim to represent Young and had no authority to bind him. On or about April 27, 1909’, Young and his wife signed a duplicate copy of the aforesaid contract, approving the sale. It appears that this paper, also bearing date April 21, 1909, had been prepared by Hobbs, acting for the Butts Realty Company, the body thereof being an exact copy of the instrument signed by Massey, supra; and Hobbs appended thereto both the names of Massey and that of the Butts Realty Company, by himself as agent, so that the signatures thereon appear as follows: “R. D. Massey, by Butts Realty Co., agents, per J. M. Hobbs. “I hereby approve the above sale, April 27, 1909. “William C. Loung. “Lucy M. Young.” “Butts Realty Co., Agents, “By J. M. Hobbs.” *66 On April 27, 1909, the last mentioned copy of the contract, bearing the signatures of Young and his wife, were sent by Hobbs to Massey with a letter in which the former stated that he would have the title to the property examined. It appears that the original paper signed by Massey remained in the possession of the Mercantile Trust Company. The trust company cashed the check for $1000; andJ Young testified that he received a check from the trust company, which, he thought, was for $900. To Hobb is letter of April 27, 1909, enclosing the copy of the contract bearing the signatures of Young and wife, Massey replied by letter of May 1, 1909, stating: “Yours of the 27th reo’d. also the contract -with the owners attached, all of which is very satisfactory to me,” etc. Prom, the testimony of Young it appears that on Miay 8, 1900', he and his wife executed a deed to the property, which he delivered to the Mercantile Trust Company. On May 12, 1909, Hobbs sent to Massey a certificate of title to the property, obtained from the “Title 'Guaranty Company.” The portion thereof here pertinent is as follows: “According to the St. Louis City records, the fee simple title to said real estate is vested in William C. Young, provided as to the eastern ten feet, that all parties in interest were parties to instrument recorded in book 1638, page 257, vacating western ten feet and eastern ten feet of Forest Avenue-eighty feet wide, now Belt Avenue, reduced to sixty feet in width.” In sending .this certificate of title Hobbs wrote to Massey, calling his attention to the clause therein referring to the “eastern ten feet” of the lot, saying, among other things: “I have looked up this deed and it is a conveyance of a private street, Forest Avenue, to the city, making it sixty feet wide and deeding the ten feet on each side to the adjoining property owners, and the title company has guaranteed this to Young, and so showed it in the title.” *67 The next letter in the record from Massey to Hobbs is dated May 16, 1909, and refers to a letter from Hobbs of date May 13 (meaning, perhaps, May 12). In this letter Massey says: ‘£ This complicates things . . . You have mussed things up to such an extent that you have got me all balled up. If you, can straighten things up as I want it the deal may go through; otherwise I want my $1000' back.” On the following day Hobbs replied to that letter, stating that there was “no complication in the matter at all, ’ ’ and that there would be no difficulty in regard to the title. On the same day Massey wrote to Hobbs as follows: “ Yours of May 12th received, inclosing certificates of title and notwithstanding your beliefs to the contrary, I must say that this does not suit me a little bit, so you will oblige me by returning the check for $1,000 earnest money at once; address me here at Bentonville, care Strod e-Long Merc. Co., and don’t forget to enclose the check for $1,000, otherwise I shall be compelled to place it in my lawyer’s hands, with instructions to act at once. A word to the wise should be sufficient.” On the following day (May 18) Hobbs wrote another letter to Massey, referring to the certificate of title, and saying: “Send this to me at the earliest moment, as the matter I mentioned has been investigated and found to be clear. The title is O. K. and I want it to show in the certificate.” To this, so far as appears from the record, Massey did not reply. On May 29', 1909, Hobbs received from attorneys in the City of St. Louis representing Massey a letter, addressed to l££ Jos. Hobbs, Esq.” demanding the immediate return of the $1000' earnest money. A further letter from the same counsel appears in the record, of date June 22, 1900, addressed to the Butts Realty Company, making demand upon the latter for the return of said sum. Twenty-one declarations of law were offered by plaintiff. Seven thereof were given as offered; thirteen were refused; and one was given after being modified. *68 For defendant six declarations of law were given, including one in the nature of a demurrer to the evidence. In the view which we take- of the case, it is necessary to set out these instructions or to refer seriatim to the various assignments of error made by appellant. This is for the reason that our examination of the record convinces us that plaintiff failed to establish a primafacie case; and that the result below.was consequently right and should not be disturbed. I. Lest we appear to give tacit sanction to the ruling below excluding the testimony of Hobbs, offered by defendants, it may be well to say that under the ruling of the Supreme Court in the recent case of Wagner v. Binder, 187 S. W. 1128, l. c. 1151 et seq., Hobbs, as defendants’ agent, was not disqualified by reason of Massey’s death. [And see, also, Allen v. Jessup, 192 S. W. 720; Lafferty’s Admr. v. Kansas City Casualty Company, 209 S. W. 942.] It was therefore error to refuse to permit Hobbs, to testify; and doubtless his testimony Would have served to throw much light upon some matters that are not made clear by the evidence adduced in this record. But since defendants prevailed below, the error in question is not one arising on this appeal. II. The theory of appellant’s learned counsel that defendants contracted in behalf of an undisclosed principal whom they had no present authority to bind, whereby they became' liable to Massey for the return of the earnest money in case the title proved defective, is not! tenable. It is obvious that the “contract of sale,” quoted above, was intended to become a contract between Massey and the owner of the property in the event that the latter approved the sale. By signing it, defendants acknowledged the receipt of the earnest money, and became obligated to return the same to Massey unless *69 the owner should approve the sale within ten days; hut upon such approval the provisions of the contract relating to the title and the refunding or'forfeiture of the earnest money, were clearly stipulations which became binding upon the purchaser and the owner. Whether Massey knew the owner’s name when he signed the contract and paid the earnest money does not appear. It does appear, however, beyond doubt, that he knew that defendants had no authority to bind the owner, that the Mercantile Trust Company was the owner’s agent, and that defendants were dealing with that company in undertaking to bring about the contract between the owner and Massey for a sale of the property by the former to the latter. Whether Massey knew the owner’s name prior to the latter’s approval of the contract of sale is wholly immaterial; the contract upon its face shows that the owner of the property was the other party to be hound thereby, and that until he bound himself there was to be no binding contract of sale. And when the owner accepted the terms and provisions of the proposed contract, and obligated himself to carry them out on his part, he became entitled to receive the earnest money, constituting a part of the purchase price. The earnest money here sued for was therefore rightfully in the possession of Young, or his agent, the Mercantile Trust Company, after the consummation of the contract of sale between Massey and Young; and we perceive no possible theory upon which defendants may now be held liable, in any event, for the return thereof to this plaintiff. There is nothing in the record indicating that the defendants wei’e to become “stakeholders” or trustees of this fund, charged with the duty of holding it after the contract between Massey and Young had been consummated. In this respect the facts are unlike those present in Martin v. Allen, 125 Mo. App. 636, 103 S. W. 13, and in Coble v. Denisen, 151 Mo. App. 319, 131 S. W. 719, and in other cases of like character cited and relied upon by appellant. *70 Learned counsel for respondents insists that the evidence establishes that in the transaction in question the Butts Realty Company — which, in dealing with Massey, acted through Hobbs — was in fact Massey’s agent. As appears above, there is evidence in the record tending to support this view. But it was admitted below that the Butts Realty Company was ‘ ‘ acting with the Mercantile Trust Company, ’ ’ and it may be that the realty company and the trust company had some agreement or understanding as to commissions if the former procured a purchaser; though this does not directly appear. But taking the view of this matter most favorable to plaintiff, when a' contract was consummated, through defendants ’ efforts, between the. purchaser and the seller, and the earnest money paid over to the latter, any question subsequently arising as to the refunding or forfeiture of the earnest money, under the terms of the contract, was a matter between Massey and Young, the owner. In this connection — to dispose of appellant’s argument touching the same — we may say that in that clause of the contract providing for a forfeiture of the earnest money to “the seller” in the event that the sale was not closed by May 21, 1900, owing to' the failure or neglect of the purchaser to comply with the terms of the contract, by the term “seller” was obviously meant the owner of the property. IH. But were we to concede, arguendo, that appellant’s learned counsel are correct in their theory that the Butts Realty Company became bound upon this contract as a principal — as the “seller” therein named — and hence liable for the return of the earnest money, in the event that Massey was entitled to rescind the contract and demand the return thereof, it would avail appellant nothing. The contract clearly contemplated that the purchaser, Massey, should make or cause to-be made an examination of the title to the property; and if the title was found imperfect and could not be perfected within a reasonable *71 time, then the earnest money was to be refunded to him, with a reasonable fee, not exceeding $15', to reimburse him for the expense of such examination. He was not entitled to demand the return of the earnest money, as for a defect in the title, without allowing a reasonable time in which to perfect the title. Hobbs, in fact, procured the certificate of title mentioned and sent it to Massey. This certificate recited that the fee simple title to the property was vested in Wm. C. Young, provided, as to the eastern ten feet, that all parties in interest were parties to a certain recorded instrument. Whether, by introducing this certificate, (admitted without objection) plaintiff made a prima-facie showing that the title was not, upon the date of said certificate, perfect “in fact and of record,” we need not say. The matter referred to in the certificate, if it can be said to have rendered the title imperfect of record, was obviously one which the seller might be able to readily remove. By the terms of the contract the seller was entitled to a reasonable time within which to perfect the title, if found imperfect. But when this recitation appeared in the certificate sent to Massey, he promptly and unequivocally repudiated the contract, refused to proceed further therewith, and demanded the return of his money, threatening to sue therefor. And as shown above, he paid no heed to the fact that defendants’ agent, Hobbs, at once notified him that all doubt had been removed as to the title, requesting a return of the certificate so that the title company might show that the title was in all respects clear and perfect. Whether or not the matter thus asserted by Hobbs was in fact true, the record does not disclose; but this matters not, since obviously Massey was not entitled to repudiate the contract without affording a reasonable opportunity for the perfection of the title, if any imperfection existed. And by such, repudiation and refusal to perform on his part, persisted in by him, in disregard of the terms of the contract, he forfeited his right to the return of the earnest money, under the clause of the contract providing that if the sale be not closed within *72 the time specified, “owing to the failure or neglect of the purchaser to comply with the terms” of the contract, “the earnest money is to be forfeited to the seller.” It is true, as suggested by appellant’s counsel, that the record does not show that the deed said to have been executed by Young and wife and left with the Mercantile Trust Company was ever tendered to Massey. But clearly such tender, if otherwise necessary, was entirely dispensed with when Massey unequivocally repudiated the contract and persisted in refusing to perform on his part. Under such circumstances, a tender of the deed would have been a úseles act and one which the law will not require to be performed. [Curtis v. Sexton, 142 Mo. App. 179, l. c. 187, 125 S. W. 806.] The judgment below was, we think, clearly for the right party. As said, this action is one for money had and received. It proceeds upon the theory that defendants have come into possession of $1000 belonging to Massey, which in equity and good conscience they ought to be required to pay over to this plaintiff as Massey’s personal representative. The facts in evidence do not sustain the averments of the petition. It does not appear that defendants came into possession of any money belonging to Massey for which they should be required to account to plaintiff, but that Massey’s money, represented by the draft which passed through defendants * hands, went, in fact, to the party entitled to receive it; and furthermore, the evidence shows that Massey, by reason of his breach of the contract entered into by him, forfeited his right to demand the return of said earnest money. It is contended that the receipt set out above, executed' by the Mercantile Trust Company to the Butts Realty Company, was improperly admitted in evidence, for the reason that it was not competent to prove by this means that the Butts Realty Company was Massey’s agent. But in view of what we have said above, the mat-. *73 ter is here inconsequential, since the admission of this receipt, if error, was harmless error. The judgment should he affirmed, and it is so ordered. Reynolds, P. J., and Becker, J., concur.