Burns v. Freling

ELLISON, J. This is an action for damages on account of an alleged breach of written contract for the sale of real estate. Plaintiff recovered judgment in the trial court. [270] It appears that the land was owned by defendant’s wife and that plaintiff addressed a written communication to her agents proposing “to purchase the following property, lot 13, block A, in Pratt’s addition to the city of Kansas at and for the sum and price of $3,000, payable as follows: I agree to assume an incumbrance now on the property of $1,600 and pay $1,400 cash at the delivery of a good and sufficient deed of general warranty to the property.” There were other stipulations not necessary to notice. The paper was signed by plaintiff and defendant wrote the words “accepted July 27, 1898,” and signed his name. Defendant insists that the 'action must fail by reason of the statute of frauds. His position is that the property is not identified in the paper, in that it fails to name a county and state in which it is ■ located. He claims that it is necessary that the- description of the property should appear in the paper with such clearness that it can be identified. And that this essential can not be supplied by parol testimony,' citing the cases of Ringer v. Holtzclaw, 112 Mo. 519; Rucker v. Harrington, 52 Mo. App. 481; Carrick v. Mincke, 60 Mo. App. 140; Weil v. Willard, 55 Mo. App. 376; Miller v. Groodrich, 53 Mo. App. 433; Fox v. Courtney, 111 Mo. 150; Boyd v. Paul, 125 Mo. 9; Kelly v. Thuey, 143 Mo. 422. Since another point made by defendant is deemed by us to be clearly fatal to plaintiff’s case we need not pass upon the one just stated. That point is this: by the nature of the action it was necessary for plaintiff to have been ready and willing and he should have offered to perform his part of the terms of the contract. He should have offered to assume the payment of the $1,600 incumbrance. It is conceded that the mode of assuming was to be by a clause in the deed to be executed for the property by defendant’s wife. His readiness and willingness and offer to perform was, at least, a contemporaneous act with a performance by defendant of the obligations on his part. Plaintiff not only did not offer [271] to perform, but he took such affirmative action as released defendant from any further obligation. He himself had the deed written out which was to convey the property, and instead of being a deed to him wherein he assumed the payment of the incumbrance, it was a deed to his sister-in-law, Barbara Fitzpatrick, in which there-was no clause assuming the incumbrance by any one, but merely a recital that the deed “is made subject to a certain deed of trust. ’ ’ This was not a mere matter of mistake, misunderstanding, or inadvertence, but it was the deliberate act of the plaintiff, in effect throwing up the contract he had made by substituting some other performance. And more than that, there was no attempt or offer made to retract, or recede from such position. Defendant had a right to have this plaintiff assume the obligation. It was an obligation personal which was not performed by substituting some one else; so that even if there had been a clause whereby Mrs. Fitzpatrick assumed the incumbrance, it would not have 'filled 'the contract. When defendant accepted plaintiff’s agreement that he, plaintiff, would assume the incumbrance, it is to be presumed that he relied upon plaintiff’s willingness to perform his contracts and such condition of solvency that he could be made to perform them. It would be altogether without reason to say that he had a right to substitute a stranger. But it is said that defendant did not refuse to execute the deed on the ground just considered. The evidence tends to show that he refused oh two grounds: one was a question about taxes, and the other that the deed was to be between “me and Mr. Burns; the other party I knew nothing about. ’ ’ There is an apparent difficulty in disposing of the case as above, from a consideration of defendant’s answer wherein he states, among other things, after a general denial, his inability to make a deed for the reason that the title was in his wife and that he could not ob [272] tain it. But we conclude that this does not relieve the plaintiff of the case he has made for himself. The general denial put him to the proof of his case and the record discloses that he assumed it, though he failed. He specifically states in his petition, as a condition to his right of' recovery, that he had offered to perform the agreement “upon his part in all respects” and that “he offered to assume said incumbrance.” In other words, he stated the necessary facts giving him a right of action, but the uncontradicted evidence is that he did not offer to assume the incumbrance, or to accept a deed to himself. There is no evidence that he was informed by defendant that no deed would be made in any event. Defendant’s answer is a matter transpiring long after plaintiff claims to have laid the foundation of his case by his offer of performance. It is clear that plaintiff has been allowed to recover a judgment in the face of his petition and in direct contradiction thereof. Manifestly, the judgment should not be allowed to stand. "Where a party prepares a deed for another to sign in pursuance of a contract to that effect, and the deed is not such as the contract called for, yet if the vendor refuses to sign for specific causes, and omits to mention other causes which he rightfully might have urged; and which, if urged, the other party would have acted upon and remedied, he will be considered as waiving such other causes, unless the circumstances show it was not so understood. If one in attempting to comply with the contract intended his omission of some essential matter as an ultimatum, then the matter-of waiver has no application, for waiver, in this respect, is founded on esr toppel in pais. It presupposes that if the matter had been mentioned as an objection it would have been obviated by the other party. But in point of fact, the suggestion just made has no application to the facts of this case. In this case there was not only no offer made to comply with the contract, but no attempt was made in that direction. On [273] the contrary, plaintiff came to defendant with a foreign proposition in toio. He came to him with a proposition to make a sale to a stranger on terms radically unlike the contract, and yet brings an action on the contract alleging an offer of full performance. The judgment is reversed. All concur.