Ramsey v. West

31 Mo. App. 676, 1888 Mo. App. LEXIS 221

• Court: Missouri Court of Appeals
• Decided: July 2, 1888
• Status: Published

Opinions

Hall, J.

This suit was brought to recover five hundred dollars as broker’s commission for selling the defendant’s land to one Samuel Schaeffer, for twenty thousand dollars. The evidence tended to show that, through the aid of plaintiff, acting as a broker for the defendant, under employment by the latter, the defendant entered into the following agreement with. Schaeffer:

“This agreement, made this twenty-fifth day of July, 1882, between John S. West, of Kaw township, Jackson county, Missouri, of the first part, and S. C. Schaeffer, of Lancaster, Ohio, of the second part, witnesseth: That in consideration of the. .sum of twenty thousand dollars, to be paid as hereinafter specified, the receipt of five dollars of which is hereby acknowledged, the said John S. West has, this day, sold in fee-simple to the said S. O. Schaeffer, the following’ described premises, situate in Kaw township, Jackson county, Missouri, containing seventy-nine acres, less the right of way granted to the Chicago and Alton Railroad and the Kansas City and Suburban Railroad, both not exceeding ten acres, being what is known as lot number four in the proceeding of the circuit court, of Jackson county, Missouri, for the partition of the estate of Thomas West, deceased, amongst his heirs and widow, dated October 18, 1880. For á more definite description of said premises, reference is made to aforesaid partition proceedings ; and the said S. C. Schaeffer for himself and assigns agrees, subject to the condition hereinafter named, to pay the said sum of twenty thousand dollars, as follows: Five thousand dollars on or before the first day of February, 1883, and the balance in three annual payments of five thousand dollars each, with six per cent, interest from the first day of February, 1883. Upon receipt of the first payment of five thousand dollars the said John S. West for himself or his heirs and assigns, agrees to execute and deliver to the said S. C. Schaeffer or his assigns a deed of general warranty for said premises as above specified with abstract of title for the lands and premises above named, to be satisfactory to said Schaeffer or his assigns, and at same time the said Schaeffer, or his assigns, shall execute and deliver to the said John S. West bond or notes for the deferred payments, to be secured by mortgage on the premises so conveyed.

“It is understood if the said Schaeffer or his assigns shall neglect or fail to pay or make tender of the first payment of five thousand dollars on or before the time stipulated, then this agreement to be wholly void and shall cease to be binding on either of the parties hereto.

“JohnS. West. [seal.]

“ S. C. Schaeffer, [seal.]

“Attest: H. C. Ramsey.”

The plaintiff was employed by the defendant to procure a purchaser for his real estate at the sum of twenty thousand dollars. The court tried the case on the theory that the plaintiff by engotiating the contract set out above performed bis contract with defendant. The question is thus presented, was that contract such a contract as the plaintiff was employed to negotiate ? The plaintiff contracted to procure one able, ready, and willing to purchase the defendant’s land at the sum named. The question may, therefore, be thus stated) was the contract entered into between the defendant and Schaeffer- binding upon the latter to purchase the land at the sum of twenty thousand dollars ? The question must be answered in the negative.

The condition of the contract with which it concludes in express words is made for the benefit of both the parties thereto. While the principle invoked by the plaintiff’s counsel, “it is a far-reaching principle of common law that a party shall not be allowed to take advantage of his own wrong, a nd courts will not so construe the contract as to enable” the party committing the wrong to take advantage of it, is a sound principle and firmly established, it has , no application to a contract whose language gives no reason for construction, and is susceptible of only one meaning, and that meaning is that the party failing to comply with one of the terms of the contract may, as well as the other party, on the happening of the failure elect to put an end to the contract. Because, although the principle of construction should be given full force, it cannot authorize .the court to make a new and distinct and different contract for the parties. The contract in this case clearly provides that Schaeffer, upon failing to pay or tender the first payment provided foi; thereby, might elect to treat the contract as at an end, for the words are, “then this agreement to be wholly void, and shall cease to be binding on either of the parties hereto.'1'1 On no ground can we refuse to give the force, effect, and meaning to these words which they ■ plainly intend. In this case Schaeffer failed to make the first payment called for in the contract, and after-wards refused to carry out the contract and complete the purchase uuder it.

For this reason the judgment must be reversed unless it be for the point made by counsel' for the plaintiff that the defendant, by accepting and approving the contract in evidence, must be presumed to have accepted it as such a contract as the plaintiff agreed to negotiate, and, therefore, as performance by plaintiff of his duty. This point, for the reason given by us in Reiger v. Bigger, 29 Mo. App. 421, we must hold as untenable.

Judgment reversed and cause remanded.

All concur.