Frye v. Warren

FARRINGTON, J. The .plaintiff (appellant) filed a petition in the circuit court of Newton county seeking specific performance of a contract for the sale of real estate alleged to have been entered into between William C. Warren and his wife Mary Warren on the one side and Thomas F. Coyne on the other, Coyne being the alleged prospective buyer. The theory of his cause of action is, as shown by his petition, that plaintiff acquired an interest in the transaction by reason of his having negotiated a sale of the real estate; that is, he claimed a two thousand dollar interest, that [193] being the difference between the price at which the Warrens agreed to sell and the price Coyne agreed to pay. Plaintiff was a real estate agent and averred that he had authority to sell the real estate belonging to the Warrens for any amount that would net them five thousand dollars. General demurrers were filed by the Warrens and by Coyne which were sustained by the trial court. The plaintiff refused to plead further and appealed from that action of the trial court to the Supreme Court. The petition is a lengthy one, but enough of it is set forth in the opinion rendered by the Supreme Court on March 2, 1915 (Frye v. Warren et al., 264 Mo. 281, 174 S. W. 391), to show the theory on which plaintiff seeks to recover. The Supreme Court held that plaintiff did not state a cause of action entitling him to the relief of specific performance and that the amount involved is less than that required to give the Supreme Court jurisdiction of the appeal. The petition including the prayer, and the taking of an appeal to the Supreme Court when two thousand dollars is the maximum amount of judgment that could be rendered, show that plaintiff attempted to state facts that would entitle him to the equitable relief of specific performance and that the plaintiff did not attempt to state a cause of action sounding in tort seeking damages on account of an unlawful conspiracy. It is said in Humphreys v. Atlantic Milling Co., 98 Mo. l. c. 553, 10 S. W. 140: “Our conclusion is that under our practice act, the plea of remedy at law in a suit in equity is unknown. It has no place under our system of pleading. ’ ’ In Rush v. Brown, 101 Mo. l. c. 592, 14 S. W. 735, appears the following: “Parties who wish to change or enlarge their demand for relief should do so by amendment or otherwise while the cause is before the trial court, at least in those instances where the case goes off upon demurrer, for the general provision permitting the [194] court to grant any relief consistent with the case made by the plaintiff and embraced within the issues,’ . . . can have no proper application where final judgment for defendant has been reached on demurrer. In that event the prayer for general relief, supplemental to one for specific performance, cannot, in view of section 2039 (Revised Statutes, 1889), be construed as a prayer for a money judgment.” [See, also: Vogelsong v. Wood Fibre Plaster Co., 147 Mo. App. l. c. 587, 126 S. W. 804; Bick v. Dixon, 148 Mo. App. 703, 129 S. W. 254; Aiple-Hemmelmann Real Estate Co. v. Spelbrink, 211 Mo. l. c. 715, 111 S. W. 480; Mulholland v. Rapp, 50 Mo. 42.] In Meyers v. Field, 37 Mo. l. c. 440, 441, it is said: “Where matters of equitable jurisdiction are mixed and blended with matters of legal cognizance in the same count, the court will not undertake narrowly to sift the petition in order to see if the essential elements of a cause of action at law can, by any construction, be made out and separated from the rest. Such á petition may very well be held to be demurrable for that reason alone, as not containing a cause of action stated with that degree of certainty which the law requires.” [See, also, Peyton v. Rose, 41 Mo. l. c. 262.] In Pemberton v. Johnson, 46 Mo. l. c. 344, appears the following language: ‘ ‘ Had the present plaintiff obtained the judgment to which the facts entitled him, we might, perhaps, by rejecting parts of his petition, find enough left to sustain the equitable relief' given him. In that case his judgment should stand. But having obtained none, and his equitable rights not being concluded by the nonsuit he suffered, it is better that he commence again and present his real case, unencumbered and without ambiguity. ’ ’ Under the law as declared in the foregoing cases,, the judgment must be affirmed. Sturgis, J., concurs,, and files a separate opinion. Robertson, P. J., not sitting.