Wendover v. Baker

25 S.W. 918, 121 Mo. 273, 1894 Mo. LEXIS 177

• Court: Supreme Court of Missouri
• Decided: March 24, 1894
• Status: Published

Opinion

Sherwood, J.

I. In entering on a discussion of the facts aforesaid, and the principles applicable thereto, it is well enough to say at the outset that the, correctness of the declarations of lato, miscalled instructions, whether given or refused, will not be considered, because the answer of defendant setting up equitable defenses and praying for affirmative equitable relief, converts this case into a proceeding in equity to be governed by principles and rules of procedure applicable to such cases. Freeman v. Wilkerson, 50 Mo. 554; Conran v. Sellew, 28 Mo. 320; Ellis v. Kreutzinger, 31 Mo. 432; Richardson v. Pitts, 71 Mo. 128; Stivers v. Horne, 62 Mo. 473; Allen v. Logan, 96 Mo. 591.

This being true, this case must be regarded as one where defendant is the actor, asking affirmative relief in a proceeding for specific performance, and is to be governed by all rules of pleading, procedure and evidence as pertain to such cases.

II. Treating the answer, then, as a bill in equity, seeking specific performance, let us look at the requisites of such a bill. On this topic a recent author says:

“The rule as to pleadings is more stringent in bills for specific performance than in other cases. The terms of the contract must be distinctly alleged, so as to leave none of its essential details in doubt or uncertainty. So, in like manner, the proof is required to be clear, definite and satisfactory. The contract must not only be proved in a general way, but its terms must be so precise and exact that neither party could reasonably misunderstand them; and there must be a strict correspondence between the alleged terms of the contract and the proof by which it is sought to be established.” 2 Beach on Mod. Eq. Jur., sec. 584.

“If any conditions are omitted, or left obscure and undefined, so as to' leave the intention of the parties respecting the substantial terms of the contract uncertain, the case is not one for specific performance. The case must be made out with greater certainty than would be required in an action at law for damages.” 2 Ibid., sec. 582.

If the party seeking specific performance has been guilty of gross laches, or if he applies for relief after a long lapse of time unexplained by equitable circumstances, his bill will be dismissed. 2 Story’s Eq. Jur. [13 Ed.], sec. 771. In order to avoid such dismissal, where his bill discloses such laches or long lapse of time, the complainant must set forth therein, such equitable circumstances as will excuse the laches and explain the delay. Anderson v. Frye, 18 Ill. 94, and cases cited.

In Sullivan v. Railroad, 94 U. S. 807, Mr. Justice Swayne says: “To let in the defense that the claim is stale, and that the bill can not, therefore, be supported, it is not necessary that a foundation shall -be laid by any averment in the answer of the defendants. If the case, as it appears at the hearing, is liable to the objection by reason of the laches of the complainants, the court will, upon that ground, be passive and refuse relief.”

a. Now the answer of the defendant shows, that notwithstanding the agreement was made with plaintiff in the latter part of June, 1880, to cancel and surrender to him the notes, and notwithstanding he surrendered possession of the premises as agreed, that plaintiff did not comply with her agreement by canceling and surrendering the notes, and that nearly six years and a half elapsed between the making of the agreement, its violation by plaintiff and the death of Judge Dryden, “through whom plaintiff conducted this entire business, ivhose death removes the most important witness of the defendant,” and yet the answer makes no allegation that defendant made any demand -for the notes, took any steps or instituted any proceedings to compel the performance of the violated contract, nor is there the slightest attempt made in the answer to excuse the delay. Manifestly the answer is bad on its face, and should have been so holden by the lower court.

1). The badness of the answer is intensified by the further fact and consideration that it distinctly alleges that the death of Judge Dryden removes the most important witness of the defendant.” Because it is always, a material and laches-indicating circumstance-that the claim was not asserted until after the death of those who could have explained the transaction. 1 Beach on Mod. Eq. Jur., sec. 18.

In such circumstances, as is aptly said by Staples,. J.: “If, from the delay which has taken place, it is-manifest that no correct account can be rendered, that any conclusion to which the court can arrive must at. best be conjectural, and that the original transactions-have become so obscured by time and the loss of evidence and the death of parties, as to render it difficult, to do justice, the court will not relieve the plaintiff.” Harrison v. Gibson, 23 Gratt. 212.

A similar line of remark was employed in Seminary v. Kiefer, 43 Mich. 105, where Judge Cooley said: “It would be the height of injustice to permit complainant, with full knowledge of the facts, to delay suit while the-persons who were familiar with the facts were one by one passing away, and at last bring suit under circumstances which at the best must leave the court in doubt, whether the remaining evidence does not disclose a partial, defective and misleading case. A court of equity ought to refuse interference under such circumstances.” This last case was approvingly cited in Lenox v. Harrison, 88 Mo. 491. See, also, Hatcher v. Hall, 77 Va. 573; State ex rel. v. West, 68 Mo. 229; Barnes v. Taylor, 27 N. J. Eq. 259; Bolton v. Dickens, 4 Lea, 577.

c. The contract alleged in the answer and as already quoted, is the following: “That shortly after the time of the insertion of said advertisement - it was orally mutually agreed, between the plaintiff and the defendant, that, if defendant would waive all bis rights and defenses under said mortgage, and would surrender immediate possession of said premises to the mortgagee, that the plaintiff would waive all claims and rights as holder of the notes declared on in plaintiff’s petition and secured by said deed, and would cancel and surrender the same.” What is meant in the quotation and contract thus cited by the words: “If the defendant would waive all his rights and defenses ■wider said mortgage,” we are not informed. And in .such cases, as heretofore stated, the rule is that if any •conditions are “left obscure and undefined” and “the ¡substantial terms of the contract, uncertain” specific performance will not lie.

In order to be specifically executed in a court of chancery, a contract must be “certain and defined.” Fry on Spec. Perf. of Contracts [3 Ed. Am. Not.], p. 155; Mastin v. Halley, 61 Mo. 196. Here it is simply impossible to tell what is meant by a waiver by a mortgagor of “all his rights and defenses under said mortgage,” if indeed they could besaid to be worth anything, where, as here, the notes secured had all become due, the mortgagor $1,500 in debt, insolvent and without property.

d. But this allegation of the 'answer of the defendant as to “rights and defenses,” is not supported by his own testimony, only as follows: He testified that the agreement made with Judge Dryden was that defendant “would surrender possession of the property without any further trouble about it,” and that Judge Dryden “would take the property for the indebtedness;” that defendant offered to give Judge Dryden “possession of the property” if the latter (‘would release him on the deed;” that ie waiving any rights toas not the question at all; it toas that defendant toas not to put Mrs. Wendover to any trouble in getting ■possession of the property.” And defendant did not testify as to any agreement to waive any right but that of possession.

This being the case, such a contract would have-no valuable consideration to support it, because default being made in the payment of the note first due, the others became due, under the terms of the deed of trust, simultaneously with the first note (Noell v. Gaines, 68 Mo. 649), and the trustee could have entered at once-for condition broken, and taken possession of the premises or brought ejectment and recovered possession. Johnson v. Houston, 47 Mo. 227; Reddick v. Gressman, 49 Mo. 389. The mortgagor after condition broken, is really a tenant at will and may be ejected by the mortgagee or trustee without notice. 1 Jones on Mortg. [4 Ed.], secs. 667, 702.

As defendant had no legal right to retain possession of the premises after condition broken, hence his agreement to surrender possession was a mere nude pact constituting no valuable consideration. Vanderbilt v. Schreyer, 91 N. Y. 392, and cases cited; Pollock’s Princ. Cont. [4 Ed.], p. 177. And as all contracts upon which specific performance is asked must be based on a valuable consideration (Fonblanque’s Eq., bk. 1, p. 47, ch. 1, sec. 5; Tucker v. Bartle, 85 Mo. 115), the contract as testified to by defendant must, therefore, be held invalid by reason of having no-legal consideration to support it.

e. The authorities say that, if it is left doubtful from all the evidence in the case whether a contract, was concluded or not, equity will not grant its specific-relief. Pomeroy, Spec. Perf., sec. 58. The evidence-of the contract in such case must be clear and satisfactory, and the onus rests on the party who alleges and. seeks the specific enforcement of it, and unless such evidence is brought forth, the complainant must faiL Justice Washington says: “If the contract be vague or uncertain, or the evidence to establish it be insufficient, a court of equity will not exercise its extraordinary jurisdiction to enforce it, but will leave the party to his legal remedy.” Colson v. Thompson, 2 Wheat. 336. See, also, Taylor v. Williams, 45 Mo. 80; Strange v. Crowley, 91 Mo. 287.

Here the contract was by no 'means satisfactorily established, as will be seen by reading the foregoing recitals of the evidence as contained in the record. The story- defendant tells is the sole basis of the alleged contract, assuming its validity. That story is improbable on its face for several reasons: He testified that in 1877 the house was in the “most complete order of any house he could find in the city; that the house was in first class shape and his wife decided to rent it; that Converse had- overhauled the house in all parts and painted and papered it all over at a cost of $700, and yet in a little over two years from that time a further expenditure was required of $370; but on this point he is contradicted by the testimony of Hull and plaintiff to the effect that no such expenditure was made; that only about $80 was expended in repairs on the house for at least two months after the sale took place. Besides, the conceded high character of Judge Dryden forbids the idea that he, having agreed to accept the surrender of the mere possession of the property in exchange for the notes, would endeavor, after defendant had surrendered possession and asked for the notes to tacit on an additional condition to the contract; to repudiate it in fact by declining to give up the notes, and by telling defendant that “he thought he ought to pay the ‡370, for repairs. ”

On this point counsel for defendant say: “There is another significant circumstance in the fact that Judge Dryden asked Baker to pay $370 for putting the house in good repair after it had been sold under a deed of trust. This could only be done on the theory that he (Baker) was released on the notes.” But if “he, Balter, ivas released on the notes” there would he no “theory” left on which to bottom a demand or request for $370.

No one can carefully read this testimony without reaching the indubitable conclusion that defendant felt that’ he must have and present some excuse for failing to demand the notes or to assert his legal right to them during the six years and ahalffh&b Judge Dry den “his most important ivitness” remained alive. This $370 story is evidently an afterthought; it is contrary to the “ordinary course of business” and to the “experience of common life,” in favor of which the law will always presume (Fitzgerald v. Barker, 85 Mo. 13; Bank v. Aull's Adm’r, 80 Mo. 199); that defendant, whom the law will hold was presumptively “vigilánt in guarding his property and prompt in asserting his rights, orderly in conducting his affairs, and diligent in claiming and collecting his dues” (1 Greenleaf on Evidence, sec. 38) would suffer his notes, the possession of which constituted prima facie evidence against him, to remain in the hands of an attorney, that attorney drawing near to life’s close, without defendant taking any steps to enforce his rights or to compel the observance of a contract faithfully and promptly completed on his part, and especially so, when that attorney acting in bad faith, according to defendant’s story, had declined to comply with the contract, and had endeavored to exact an additional and unwarranted moneyed consideration for consummating that contract.

Considering all of these circumstances, and the further ones that Judge Dryden was not authorized by plaintiff to make such a contract, never told her about it, but told her on the day the sale occurred that defendant still owed her $2,000 on the notes; that defendant tells conflicting stories as to whether the surrender occurred before or after the sale and in regard to different incidents relating thereto; that an ■experienced lawyer like Judge Dryden would not in all human probability have assented to such an improvident contract as, without any deed being made by defendant, to accept a mere exchange of the debt for the simple possession of the premises, something that could have been promptly secured whether defendant would or not, — defendant’s story is wholly insufficient •as a basis on which to build a decree for specific performance. See authorities cited supra.

f. But in this connection it is not improper to say that, although the point was not raised in the lower court, Judge Dryden, according to defendant’s story, being the “ contracting agent” of plaintiff, defendant was incompetent to testify as a witness touching transactions had with the deceased agent. The same rule of exclusion prevails in such cases as prevails in regard to a surviving party to a contract. Williams v. Edwards, 94 Mo. loc. cit. 451; Stanton v. Ryan, 41 Mo. 510; Fulkerson v. Thornton, 68 Mo. 468; Butts v. Phelps, 79 Mo. 302. In Williams v. Edwards, supra, the defendant there told a story which, in outline and salient features, considerably resembles the one told in the case at bar.

But, notwithstanding defendant was incompetent to testify, no objection having been made thereto, his testimony stands as valid, subject, however, to such •observations as will naturally suggest themselves as to his testimony being uncontradicted by the only one who, if living, could have contradicted it.

g, Moreover, could the contract to which the defendant testified be regarded as valid on every other score and as established by the proof, still it must be held invalid under the statute of frauds. All the interest that defendant mortgagor had in the land was an equity of redemption; but this could not be bought or sold without writing. Browne on the Stat. of' Frauds, secs. 229, 231 and cases cited.

III. In conclusion'it may be said that, although the credit of $1,000 was not, as it should have been, placed on the notes, yet this omission and any inference therefrom is so fully countervailed by other circumstances as not to merit serious consideration.. Therefore, judgment affirmed.

All concur.