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(199 Mo. App. 461)

and "each are conveying," and "their said NANCE V. SEXTON. (No. 12780.) described land," and "each party is to give (Kansas City Court of Appeals. Missouri. possession of their respective tracts of land," May 20, 1918.)

etc. Defendant returned home. In the 1. EXCHANGE OF PROPERTY Om8 (1)-REPUDIA- course of several days plaintiff, who had TION OF CONTRACT.

been in Illinois, came back by way of Macon Where one party to a contract of sale and City, when he was informed by defendant exchange of farms repudiates and rescinds it, that his wife refused to make the exchange the other may sue for damages without tendering a deed in performance of his part of it. and would not sign a deed and that he was 2. VENDOR AND PURCHASER O 6 - TITLE OF afraid he could not carry out the contract. VENDOR.

Something transpired in plaintiff's conversaIf one has no title, nor bona fide claim of tion or conduct that caused defendant to ownership, and this is unknown to the proposed purchaser, he cannot make a valid executory ask plaintiff if he was the owner of the land contract with such purchaser, and the latter he was undertaking to sell. After some evamay repudiate such contract upon learning the sion, plaintiff admitted he was not. Therefact before executing the contract. 3. VENDON AND PURCHASER Om 35–FRAUD- upon defendant immediately repudiated the TITLE.

contract, plaintiff returned home, and in a If the vendor fraudulently conceals the fact few weeks instituted this action. that he does not own the land and has no interest in it, he is guilty of a fraud which will jus, scinded the contract, left plaintiff free to

[1] Defendant having repudiated and retify the purchaser in repudiating the executory contract when he learns the fact.

institute an action for damages without the Appeal from Circuit Court, Macon Coun- necessity of tendering a deed in performance ty; V. L. Drain, Judge.

of his part of it. Armstrong v. Dunn, 163 Action by J. M. Nance against A. W. Sex- Mo. App. 701, 147 S. W. 509. But the queston. From a judgment for defendant, plain- tion presented by defendant's act is whether tiff appeals. Affirmed.

one who is not the owner of land he con

tracts to sell, and is without any claim of tiSheppard & Sheppard, of Poplar Bluff, tle. can make a valid contract of sale? and Guthrie & Franklin, of Macon, for ap- There are decisions by courts of the highest pellant. Nat M. Shelton and C. G. Buster, standing that he may, if at the time of perboth of Macon, for respondent.

formance he is able to furnish a good title.

Dresel v. Jordan, 104 Mass. 407, 414; BackELLISON, P. J. Plaintiff's action is for damages alleged to have accrued to him by Am. St. Rep. 153; Rutland v. Brister, 53

man v. Park, 157 Cal. 607, 108 Pac. 686, 137 reason of defendant having repudiated a sale and exchange of farms and refused to that rule with the statement that the pur

Miss. 683, 686. Other authorities qualify carry out the contract. The trial court sus- chaser must have known that the seller was tained a demurrer to the evidence and judg- not the owner. Weitzel v. Leyson, 23 S. D. ment was rendered for defendant. It appears that plaintiff was a real estate: 367, 374, 121 N. W. 868; Walkin y. Nok

Others agent residing in Stoddard county, in south- ken, 38 S. D. 289, 161 N. W. 194. east Missouri, and that defendant was a vendor must have had some claim or right to

qualify the rule by the condition that the farmer residing in Macon county, in the vendor must have had some claim or right to

the land. Topp y. White, 12 Heisk. Tenn.) northeast part of the same state. Plaintiff frequently went about the state in pursuit 165, 179; Pipkin v. James, 1 Huniph. (Tenn.) of his business. He met defendant in Ma- 325, 328, 34 Am. Dec. 652; Green v. Chandler, con City, the county seat of Macon county,

25 Tex. 148, 159–161; Trust Co. v. McInand proposed to trade him a farm in Stod- | tosh, 68 Kan. 452, 462, 75 Pac. 498; Drake

v. Latham, 50 Ill. 270, 272; McNeny v. dard county for plaintiff's farm. This meeting in Macon City was without prearrange

Campbell, 81 Neb. 754, 758, 116 N. W. 671. ment, and defendant did not know that plain- last stated, and to hold that if one has no

[2] We are inclined to the qualification tiff was a real estate agent. The only understanding which can be had of the record is title nor bona fide claim of ownership, and that plaintiff's proposal was to exchange his this is unknown to the proposed purchaser, own farm for defendant's, the difference in he cannot make a valid executory contract value and acreage and incumbrances to be with such purchaser, and that the latter may adjusted. Plaintiff went out with defendant repudiate such contract upon learning the to look at the latter's farm. They returned fact before executing the contract. It seems to Macon City and went down together to to us that a contract of that character lacks Stoddard county that defendant might look mutuality. It is a contract such as that if over that farm. Plaintiff took defendant the true owner of the property conveys it to over it and the latter was pleased. A writ. the purchaser, or to the adventurer, and the ten contract of exchange was drawn between latter to the purchaser, all is well; but if them and signed by each, in which plaintiff the owner refuses and the adventurer is inis stated to be the owner of the Stoddard solvent the deceived party must pocket his farm, in words such as, "each party hereto," loss. And even if the pretended vendor is

.

Om For other cases see same topic and KEY-NUM.BER in all Key-Numbered Digests and Indexes

solvent, the purchaser might want specific court. The questions presented in this case performance instead of damages, yet he did not arise in that

. There the seller was could not get it, since it would be entirely the owner of the farm he contracted to sell, out of the power of the former to perform. and the general and correct rule was stated The risk is all with the purchaser; a risk that the seller must be such an owner that he should not be required to take unless, of he could convey good title at the time of course, he knows the fact. It is not a fair the contract, or that he would be by the time answer to this to say that if the purchaser of performance. There is no intimation in does not get a title at the time appointed he that case that one may practice a fraud, or may save himself by refusing to pay. He may pretend to control the sale of a piece of is entitled to a contract that, from the start, land in which he has no claim or interest, binds the other party as effectually as it does taking the gaming chance of being able to himself. To permit the seller to enforce get the title, and, if he could, of the contract such contract is to allow him to speculate proving profitable. Nor is there anything on the chance of his success in getting a ti- said in that case countenancing the deceptle, leaving the purchaser liable to be the tion which record shows was practiced here. victim of what may well be said to resem- The judgment is affirmed. All concur. ble a game. [3] There is another reason why the per

RILEY v. BAGGS et al. (No. 12793.) emptory instruction was properly given. The authorities last above cited make clear

(Kansas City Court of Appeals. Missouri.

May 20, 1918.) that, if the vendor fraudulently conceals the fact that he does not own the land and has 1. APPEAL AND ERROR Om511 (1)-RECORD. no interest in it, he is guilty of a fraud was signed and filed, it cannot be considered,

Although bill of exceptions recites that it which will justify the purchaser in repudiat- where the record proper does not so show. ing the executory contract when he learns 2. APPEAL AND ERROR Om644(2)—RECORD the fact. 29 Amer. & English Ency. of Law, STIPULATIONS. 667. Allowing ordinary common sense to

Where record proper does not show that a

bill of exceptions was signed and filed, it cannot plaintiff, he must have known that defend- be considered, even by agreenient of counsel. ant supposed he was the owner of the land

Appeal from Circuit Court, Clinton County; he was proposing to sell. They were togeth- Alonzo D. Burns, Judge. er several days in Macon and Stoddard coun

"Not to be officially published.” ties. They traveled together; yet plaintiff

Action by H. R. Riley against J. F. Baggs carefully concealed the fact that he did not and others. Judgment for plaintiff, and cerown the land. The uncontradicted fact is tain defendants appeal. Affirmed. that he never spoke with the owner, and

R. H. Musser, of Plattsburg, for appellants that his only interest in the land was a ver- Wilson and Munsill. Guy B. Park, of Platte

a bal consent that he might sell it from a city, for appellant Montgomery. F. B. Ellis, firm of real estate agents in Stoddard county of Plattsburg, for respondent Riley. W. S. whom the owners had verbally authorized to find a buyer. When they went to Stoddard Herndon, of Plattsburg, for respondent First

Baptist Church. county they were met by one of these agents and he went with them to the farm, not in

PER CURIAM. This action has for its the capacity of an agent, but as plaintiff's purpose the construction of the will of Mrs. employé, and no intimation was given him as Mary E. Montgomery. Judgment was renderto who this agent really was. Finally a con- ed in the trial court for plaintiff, and detract was drawn with plaintiff as owner. fendants appealed. It is perfectly apparent that during this [1] No bill of exceptions appears by the entire time plaintiff was playing the decep- record proper to have been filed. The protive rôle, and defendant knew no better un- ceedings had at the trial purport to be set til some weeks after the contract was signed. forth in what purports to be a bill of excepIt is an uncontradicted fact in the case that tions, but the abstract of the record proper the defendant would not have entered into nowhere shows that it was even signed or the contract with any one but the owners if filed. Such abstract does not mention a bill. he had not been misled. Plaintiff testified At the close of the abstract of what is called that defendant did not tell him that he a bill of exceptions it is stated that leave would not, but, assuming he did not tell him, was granted by the trial court to file a bill it would not alter the matter; it was not during the next term of court. Then it recitnecessary to tell him, for he was engaged ed that time was extended, and then, within the whole time in practicing a deception on the time, that the bill was filed. It has been defendant which it would not have been uec- time and again decided that a bill of excepessary to practice if he had not known, or tions cannot prove itself, and that, notwithbelieved, it would have made a difference in standing the bill recites that it was filed, it defendant's action.

will count for nothing unless the record propEach party has cited the foregoing case of er shows that it was filed. The latest of Armstrong v. Dunn, supra, decided by this these decisions was promulgated by the Su. preme Court in the last few days (Tracy v. dence shows that the defendant Frederick Tracy [Sup.] 201 S. W. 902), in which will be Dunlap disputed the amount of this extra found cited a few of the decisions on the work, and also claimed damages by reason question.

of the contract not having been performed [2] The fact that counsel have not made according to the plans and specifications. this point is of no consequence. “It is not Finally plaintiff put the matter in the hands within the power of counsel by agreement, ei- of his attorney, Mr. M. R. Conley. Defendant ther expressed or implied, to obviate the pro- Frederick Dunlap and Conley, after several visions of the rules of this court.” Hays v. interviews and letter writings, adjusted the Foos, 223 Mo. 421, 122 S. W. 1038; Hutson v. whole matter in dispute by the defendant Allen, 236 Mo. 645, 139 S. W. 121.

Frederick Dunlap agreeing to pay the sum We are thus left with nothing but the rec- of $381.35, less the cost of some insurance · ord proper, and, finding no error therein, we that was placed upon the building by the affirm the judgment.

defendant Frederick Dunlap to insure the building while in course of construction, This suit was originally in two counts; the

first count was for said sum of $525.64 on FELTY V. DUNLAP et al. (No. 12862.)

account of extra work, and the second count (Kansas City Court of Appeals. Missouri. was for $381.35, being the amount of the May 20, 1918.)

settlement less the amount of said insurance, 1. APPEAL AND ERROR C 882(14) QUES- The answer of defendant Florence H. Dunlap TIONS OF FACT-ADMISSIONS. Where defendant fails to demur to plain- Frederick Dunlap a general denial as to

was a general denial, and that of defendant tiff's evidence or to ask for a peremptory instruction to find for him, but joins plaintiff in the second count and as to the first count asking for instructions on the issues, his con- a general denial and a counterclaim for duct is an admission that there is sufficient evi- damages for the alleged failure of plaintiff dence to take the case to the jury, and is binding on him on appeal.

to build the house according to plans and 2. DISMISSAL AND NONSUIT Omw 42-COUNTER- specifications. Plaintiff thereupon dismissed

CLAIM-ABANDONMENT OF COUNTS IN COM- the first count of his petition and went to PLAINT.

trial on the second count. The jury returnWhere a complaint contains two counts and defendant pleads a counterclaim to the first ed a verdict in the sum of $366.35 against count, the dismissal or abandonment of such both defendants and judgment was accordcount does not deprive defendant of his right ingly entered thereon, and defendants have to prosecute the counterclaim.

appealed. 3. APPEAL AND ERROR Om171(1)-REVIEWTHEORY OF CASE.

[1] Defendant Frederick Dunlap makes the Where a defendant tries his case on the point that there is no evidence to support theory that his counterclaim is no longer in the verdict. Plaintiff and defendant Frederthe case, he cannot on apneal urge anything in- ick Dunlap submitted the case to the jury consistent therewith.

by 'instructions embodying their separate Appeal from Circuit Court, Boone County; theories of the case, but said defendant failed D. H. Harris, Judge.

to demur to the evidence or to ask a peremp“Not to be officially published." Action by Guy T. Felty against Frederick tory instruction requiring the jury to find for

.

There was requested and refused a Dunlap and Florence H. Dunlap. From a peremptory instruction on the part of Florjudgment for plaintiff, defendants appeal. ence H. Dunlap. Defendant Frederick Dunlap Affirmed as to Frederick Dunlap, and re having failed to demur to the evidence or versed as to Florence H. Dunlap.

to ask for a peremptory instruction to find Lee Walker, of Columbia, for appellants. for him, but having joined in asking the Harris & Price and M. R. Conley, all of Co- court to instruct upon the issues, his conduct lumbia, for respondent.

amounted to an admission at the trial that

there was sufficient evidence to take the BLAND, J. The evidence on the part of case to the jury and one that is binding plaintiff tends to show that on the 10th day upon him on appeal. Lumber Co. v. Niederof August, 1915, plaintiff entered into a meyer, 187 Mo. App. loc. cit. 186, 173 S. W. written contract with defendant Frederick 57; Kenefick & Hammond Co. v. Fire Ins. Dunlap, acting on behalf of himself and the Society, 205 Mo. loc. cit. 311, 103 S. W. 958. defendant Florence H. Dunlap, by which Defendant Frederick Dunlap complains plaintiff was to build a house for defendants. that the court erred in giving plaintiff's inThe house was constructed during 1915 and struction No. 1. In support of this he says the early part of 1916. Defendants moved that there is no evidence as to what was the into the house about June 1, 1916, although amount of the insurance agreed upon. Dethe house was not finally completed until fendant is in error as to this matter. Conley August 1, 1916. Payments were made for testified that he ascertained the insurance and the construction of the house, but defendants that the amount there was between $12 and had failed to pay for certain extra work done $13. The jury deducted $15 to cover the inby plaintiff, amounting to $525.64. The evi- Isurance.

Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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[2] Defendant Frederick Dunlap urges / whatever that defendant Frederick Dunlap that the court failed to enter a judgment on was representing his wife at the time of the his counterclaim filed to the first count. settlement or that he pretended to represent Plaintiff dismissed or abandoned the first her. From all that the record shows she count of his petition, but, of course, this may have known nothing whatever of the did not deprive said defendant of the right settlement, and may not have agreed to to prosecute his counterclaim. However, no it. Her demurrer to the evidence should have evidence whatever was introduced tending been sustained. to support the counterclaim, and from the The judgment as to defendant Frederick remarks of the court during the trial it Dunlap is affirmed, and as to defendant would appear that there was nothing tried Florence H. Dunlap is reversed. All concur. except the second count of plaintiff's petition. There was no reply filed to the counterclaim, and two or three days after the verdict and judgment was entered defendant Frederick Dunlap filed a motion for judg- SIMMS v. DUNHAM et al. (No. 12886.) ment upon his counterclaim. The court over

(Kansas City Court of Appeals. Missouri. ruled said motion, giving as reasons that

May 20, 1918.) when plaintiff dismissed the first count of his petition defendant abandoned his counter- 1. TRIAL C251(1)-INSTRUCTIONS-APPLICA

BILITY TO PLEADING AND ISSUES. claim because: that at the trial of the cause

A plaintiff must put his case to the jury on the counterclaim was ignored and abandoned the precise case made by his petition and proof, by said defendant and no mention was made and, while the petition may be broader than the of it; that in submitting the case to the jury proof, the proof must not be broader than the said defendant did not seek to submit any er than the proof adduced and limited by the

petition, and the instructions must not be broadassessment of damages claimed under the petition. counterclaim; and other reasons.

2. TRIAL Om 251 (8) INJURIES TO PASSEN[3] From an examination of this record

GERS-INSTRUCTIONS. we are satisfied that the reasons given by ries, where the proof showed that the proximate

In a passenger's action for personal injuthe court in overruling said motion were cause of the accident was a sudden and violent fully supported by what occurred at the trial. jerk of the train, whereby plaintiff was thrown Defendant Frederick Dunlap tried the case based negligence on the jerking of the train, an

to the ground and injured, and the petition on the theory that the counterclaim was not instruction submitting the issue of whether dein the case, or had been abandoned, and he fendant started the train before passenger could cannot in this court now urge anything in- reach a place of safety was erroneous. consistent with that theory. Gate City Nation- Appeal from Circuit Court, Jackson Counal Bank v. Strother, 196 S. W. 447; Scott ty; William 0. Thomas, Judge. v. Davis, 200 S. W. 723. Said defendant, "Not to be officially published.” having abandoned his counterclaim, is not Action by Anthony Simms against Robert in a position to urge that there was no reply J. Dunham and Ford F. Harvey, as receive filed to the same, and for that reason he is ers of the Metropolitan Street Railway Com. entitled to judgment on the pleadings. Gate pany, and the Kansas City Elevated Railway City National Bank v. Strother, supra; Scott Company for personal injuries. From a v. Davis, supra.

judgment for plaintiff, defendants appeal. There was no error as to defendant Fred- Reversed and remanded. erick Dunlap, and the case must be affirmed

Clyde Taylor and Charles A. Stratton, as to him. However, we do not think that both of Kansas City, for appellants. Hardthe judgment may be sustained as against ing, Murphy & Harris, of Kansas City, for defendant Florence H. Dunlap. Her name respondent. was not signed to the original contract. Plaintiff testified that in making the contract TRIMBLE, J. Plaintiff, in attempting to defendant Frederick Dunlap was acting as board one of defendant's east-bound street the agent of his wife and signed his name cars at the elevated station on Wyoming to it on behalf of himself and as her agent. street, in Kansas City, fell or was thrown His name was not signed as agent, but was off, and precipitated to the pavement 30 feet signed but once,' and the contract purported below. A friendly and ample snowbank forto be one between Guy T. Felty and Frederick tunately was there, and received him into Dunlap. Assuming that this evidence was its bosom; else, doubtless, he would not have sufficient to connect Florence H. Dunlap with lived to complain of the fall. He brought the contract and there was no other evi- this suit for damages, alleging specific neglidence tending to connect her with it), never- gence on the part of the operatives of the theless, there is not an iota of testimony to car. The jury returned a verdict for $3,000, connect her with the settlement or adjust- upon which judgment was rendered, and dement had between Mr. Conley and defendant fendant has appealed. Frederick Dunlap. There is no evidence The petition charged that while the plain

tiff was on the steps of said car, and before, was in the act of boarding the car, it sudhe had time to get within the doors and up- denly started forward with a violent jerk, on the platform thereof, said car was “sud- and that the jerk caused him to fall. This denly and violently started, throwing plain- instruction was refused, and another given in tiff from said car" and from the depot plat its stead by the court, which told the jury

" form to the street below, thereby permanent- that, before plaintiff could recover, he must ly injuring him in specified particulars. The prove that, before plaintiff had a reasonable petition further alleged the negligence to be time to board the car, it started, and thereby as follows: That it was the duty of defend- caused plaintiff to fall. ants to hold the car at a standstill until [1] The defendants urge that the court's plaintiff, with ordinary care and diligence, action in both of the above matters was erhad reasonable opportunity to board said ror. It is well established that plaintiff car in safety; that while plaintiff was on must put his case to the jury upon the prethe steps of said car, and before he had got-cise case made by his petition and proof. ten upon the platform of the car and inside And while the petition may be broader than its gates, the defendants "negligently and the proof, yet the proof must not be broader carelessly started said car, thereby throwing than the petition, and the instructions must plaintiff from said car onto the pavement not be broader than the proof adduced and below as aforesaid"; that the defendants, thus limited by the petition. Many cases “while plaintiff was in the act of boarding have decided these matters. See Northam v. said car as aforesaid, and before he had got- United Railways Co., 176 S. W. 227, 229, and

, ten upon the platform of said car, carelessly cases cited; Ward v. Harvey, 182 S. W. and negligently started said car suddenly, 105; Todd v. Missouri Pacific R. Co., 126 and with a violent jerk, thereby throwing Mo. App. 684, 105 S. W. 671; Beave v. St. plaintiff from said car and onto the pave- Louis Transit Co., 212 Mo. 331, 353, 111 S. ment below as aforesaid.”

W. 52. The plaintiff testified that there was an Plaintiff concedes these rules to be well es“awful quick jerk," a "severe jerk that un- tablished, but denies that they are violated balanced me," a "terrible jerk," and further in this case. In other words, the contest is said, clearly and explicitly, that it was the over the application of the law to the facts, violent jerk that threw him off. The de- and not over the law itself. Plaintiff confendants' evidence was that the car started tends that the petition charges two acts of in the usual and ordinary way, with no jerk negligence: (1) That the car was started with whatever; but that, after it was in motion, a sudden and violent jerk; and (2) that it plaintiff came out on the platform, caught was merely started before plaintiff had time hold of the car, and tried to get on, but fell to board the same. He also contends that before he got either one of his feet on the the words "sudden and violent jerk" are

" car.

merely descriptive of the start. This, howPlaintiff's instruction No. 1, which covered ever, even if it were tenable, would seem to the case, submitted the issue of whether the be inconsistent with the former claim that defendants "carelessly and negligently start there were two different specifications of neged said car before the plaintiff had a rea- ligence contained in the petition. Another sonable time to get upon said car and to a position taken by plaintiff is that under the place of safety," and thereby threw the petition the gist of the negligence is in the plaintiff from said car. Said instruction al-starting of the car before plaintiff had time so submitted to the jury the question of to safely board it, and that, therefore, the whether those in charge of the car, “by the question of how it started, whether violentexercise of the highest degree of care which ly or not, is entirely immaterial. We do not would have been used by careful and skillful think so.

think so. The above rules apply, not only to street railroad employés under like circum- the negligence involved, but also as to what stances, could have prevented such move is the proximate cause of the injury; and, ment, if any, of said car at such time, and as just said, the cause must be submitted, not thereby have averted the injury, if any, to merely on the facts stated in the petition, plaintiff, and negligently failed to do so.” but on the case as made by, and within the And the instruction told the jury that if they limits of, the proof properly given under the found these issues for the plaintiff, and that petition. he was in the exercise of ordinary care, they Now, even if we may concede for the sake should find for plaintiff. It will be observed of the argument, but without deciding, that that the instruction did not submit the ques- two different specifications of negligence are tion of whether the car was started with a stated in the petition, and that the neglisudden and violent jerk, but merely if it was gence in one of them is the starting of the started before plaintiff had a reasonable car before plaintiff had time to get on safetime to get on said car and to a place of ly, yet that is not the case made by the safety. The defendants asked instruction proof. The proof on plaintiff's part is clear No. 4, which told the jury that, before plain- and explicit beyond question that it was the tiff could recover, he must prove that, as he sudden and violent jerk that threw him off,

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