Kelly v. Thuey

Sherwood, J.

This cause has been here before, 102 Mo. 522 ; it is an equitable proceeding for specific performance, and the record has been handed me by the present chief justice in order that I may prepare an opinion. The suit is grounded on the following contract:

“Kansas City, Mo., Dec. 16, 1885.

“Received of D. T. Kelly, fifty dollars, being in part payment of the purchase price of fifty-two feet by fifty off the west end of lot No. 7, block 12, of Vineyard’s Addition to the City of Kansas, Jackson county, Mo. I agree to make and deliver a good and sufficient warranty deed conveying said premises to said Kelly free of all incumbrances without delay and as soon as the abstract of title thereto shall have been examined and approved, at which time said Kelly shall pay to me the sum of nine hundred and fifty dollars in cash, and the balance of the purchase price, six hundred and sixty-four dollars he shall pay in three equal annual installments, with 8 per cent, interest, to be secured by deed of trust executed on said property. If I shall fail to convey good title to said Kelly as aforesaid, then said fifty dollars shall be refunded to him.

“Richard'+ Tooey,

“Bridget + Tooey,

“D. T. Kelly.

“Witness: Katie Tooey.”

The first agreement between the parties was also interlined. The original of the first agreement could not be found by defendants at the trial of this case. *430 It was offered from the record in the first case of Kelly v. Thuey, and, as it there appeared, is as follows:

“Kansas City, December 16, 1885.

“Received of D. T. Kelly fifty dollars as part purchase money for fifty-two feet of the west end of his lot situated on Troost Avenue and Eighteenth street, the balance of the money to be paid as follows: One six hundred dollars' thousand dollars cash on delivery of deed and abstract, balance to be paid in equal parts in one, two and three years in equal annual payments at 8 per cent per annum. It is understood that for the two feet, party of the first part shall pay same in the same proportion.

“Bridget + Tooey,

“Richard + Tooey.

“Witness: D. T. Kelly,

“Katie Tooey.

“The balance of purchase money to be secured by bond and mortgage on said property. Party of the second part shall pay all taxes after the year 1885 and for party of the first part to pay balance.

“D. T. Kelly,

“ Witness.’ ’

The facsimile of the litigated contract accompanies this opinion and is here inserted.

*431

The abstract furnished by plaintiffs does not present an accurate copy of the contract in suit, in that no evidence of interlineation or alteration appears on its face. Nor does the petition count on or notice such interlineation or alteration, but proceeds as if nothing of the kind had occurred.

The petition among other things alleges that Daniel T. Kelly has an individual interest by reason of his unpaid commissions, and at the former tidal Daniel T. Kelly swore that he acted as the agent of loth Thuey and J. T. Kelly. “I bought it (the lot) for J. T. Kelly and myself, and the interest I had in it grew from what I would get from both of them for my trouble.” And at the last trial he also testified that he was the agent of both the contracting parties.

The answer of defendants pleaded that defendant Thuey executed the instrument described in the petition, but that the words “six hundred and sixty-four dollars” were written in after Thuey had signed the instrument and that said alteration was made without his knowledge or consent. Plaintiffs replied with a general denial.

The instrument in controversy is written in Hack ink; it was prepared by J. 0. Tarsney, to whom Daniel T. Kelly handed the original instrument drawn by himself on two leaves of a book and signed by Thuey and wife and taken by Daniel T. Kelly to Tarsney, to whom Kelly said it would be better to have it in “more legal form.'1'1 Accordingly Tarsney drafted the instrument in question, which was then taken out to Thuey’s by Daniel T. Kelly, where it was signed by Thuey and wife in Hue ink, and witnessed by D. T. Kelly and Katie Thuey in ink of the same color. This contract drawn by Tarsney, at the instance of Daniel T. Kelly, has the interlined words “six hundred and sixty-four dollars” written in ink of a *432 brown colbr and in a different Handwriting from that of the body of the contract. The interlined words “six hundred dollars” in the first contract were also written by Daniel T. Kelly, as he admitted at the trial which occasioned the present writ of error. Daniel T. Kelly, the magna pars fait in the negotiation of the contract, testified at a former trial that he had interlined the words aforesaid at Thuey’s house in the presence of Thuey, his wife and daughter. Asked who gave him the pen and ink with which to write the interlineation, he answered “one of the women, I couldn’t tell which.” On the trial of the present case he stated on his direct examination that he made the interlineation on his way to Thuey’s house, but on cross-examination he could not tell where he made the interlineation, saying in response to repeated questions, “I don’t Jmow.” Katie Thuey, a disinterested witness, testified that she signed her name to the contract as a witness; that alterations now present in the contract, were not there at the time; that the only writing Kelly did was to write the names of her father and mother; that then he signed his name and she signed hers, and that all the names were written in the blue ink that they had there in her father’s house. On the former trial Daniel T. Kelly testified that there was an interlineation in a different colored ink made by him at a similar part of the first contract, and before its execution; that interlineation being “six hundred dollars,” while the one in the second contract was “six hundred and sixty-four dollars.”

1. Upon this state of the testimony and evidence the special judge very pertinently observes: “If this interlineation in the first contract was made prior to the execution, it is passing strange that it was not noticed by Mr. Tarsney when he undertook to copy it into “legal form,” for he seems to have incorporated *433 into the second contract every provision of the first with the exception of the interlined matter. Yet if Tarsney undertook to copy the first contract, it is not .strange that he should omit the amount of the balance of the purchase price if there was a like omission in the paper from which he was copying. The two contracts had then interlineations of a similar nature, with different kinds of ink, and in the handwriting of a party in interest. A fair inference arises that both were made at the same time and after the execution, and for the purpose in the race with Bush to have a certain contract which could be certainly enforced.”

It is impossible of belief that Tarsney, a lawyer, given a rough draft of a contract which he was to put in “more legal form,” should embody in substance in the new draft of that contract, everything which the original contract contained, except the interlined words “six hundred dollars” which stood out in different colored ink and in bold relief on the face of the original. We therefore hold that the physical facts already related so discredit Daniel T. Kelly as to render his testimony unworthy of belief. Consequently, we concur with the special judge in holding that the interlineation in question was made by Daniel T. Kelly after the execution of the contract and without the knowledge or consent of either Thuey or his wife.

2. Besides, it is not to be forgotten that in cases like the present, the burden is on the plaintiffs to satisfactorily explain the alteration. Matthews v. Coalter, 9 Mo. 696, 702 ; Lubbering v. Kolilbrecher, 22 Mo. 596 ; McCormick v. Fitzmorris, 39 Mo. 24, 34 ; Paramore v. Lindsey, 63 Mo. 63, 66, 67 ; Holton v. Kemp, 81 Mo. 661 ; Stillwell v. Patton, 108 Mo. 352, 360 . The plaintiffs in this case, instead of thus explaining the alteration, have introduced such testimony as with, all natural and reasonable inference to be drawn therefrom, affords *434 cogent and conclusive proof that an alteration was made after the execution of the instrument.

3. But it is said that the alteration in this case is immaterial. Of this assertion it may be observed that it is the firmly rooted doctrine of this court and has been ever since the ruling made in Haskell v. Champion, 30 Mo. 136 , that it is not permitted to a payee or obligee to make a change in the paper which he holds, and then having made it assert, when caught, that he meant no harm by it and that it is immaterial. Hitherto we have tolerated no alteration in the contract; and we have always regarded and still regard any change on the face of the paper, as a nullifying alteration. By thus holding we intend to make the payees or obligees of money-bearing or title-bearing obligations honest, whether that disposition accords with their natural inclinations or not. Of course, by these remarks we do not refer to cases of spoliation by a stranger nor to filling blanks purposely left to be filled or authorized to be filled, because we have held that even in the case of a deed, verbal authority is sufficient to make valid the fining of a blank left for the name of the grantee. Field v. Stagg, 52 Mo. 534 .

4. The contract in suit, after its execution, was, as James T. Kelly testifies, received by him from his brother Daniel that afternoon or the next morning, and placed by him in his safe. It does not appear from the testimony of James T. that this contract ever afterterward left his possession until suit brought upon it, so that it is a reasonable inference that it was altered before it was returned to him by his agent Daniel. But, in any event, inasmuch as suit was instituted on the contract as altered, as. if it had not been altered, this will be deemed a ratification of the alteration made by Daniel T. Kelly, no matter when he made it. Emphasis is given to this view by the fact that the reply of plain *435 tiffs denies that there was any alteration. Hence such alteration can not be regarded as a mere spoilation by an unauthorized hand, since by suing on the contract in its altered state, James T. Kelly adopted that alteration and made it his own.

5. In making a contract involving the statute of frauds, there are three essential and inevitably necessary ingredients: First, the parties; second, the subject-matter; third, the consideration or price. Absent any one of these ingredients, there is no contract. Certainty in price is as much a sine qua non as certainty in parties or subject-matter. ' On this topic a great chancellor in his Commentaries on American Law remarks: “The contract must, however, be stated with reasonable certainty, so that it can be understood from1 the writing itself, without having recourse to parol proof. Unless the essential terms of the sale can be ascertained from the writing itself, or by a reference contained in it to something else, the writing is not a compliance with the statute; and if the agreement be thus defective, it can not be supplied by parol proof, for that would at once introduce all the mischiefs which the statute of frauds and perjuries was intended to prevent.” 2 Kent [14 Ed.], *511. To the same effect are very numerous authorities, many of them stating in terms that the price of the property sold can not be omitted. Thus a work of recognized merit says:

“Sec. 148. II. The Price. — In all contracts of sale, assignment, and the like, the price is, of course, a material term. It must either be fixed by the agreement itself, or means must be therein provided for ascertaining it with certainty. In the absence of such provision, either stating it or furnishing a mode for fixing it, the agreement would be plainly incomplete, and could not be enforced; and if the contract is written, this term must' appear in the memorandum or *436 written instrument.” Pomeroy’s Spec. Perf. [2 Eel.], sec. 148. See, also, Grafton v. Cummings, 99 U. S. 100, 106 ; 8 Am. and Eng. Ency. of Law, 726; Browne, Stat. Frauds [5 Ed.], sec. 376; 1 Warvelle on Vendors, p. 105, sec. 10; Fry, Spec. Perf., sec. 335; Waterman, Spec. Perf., sec. 146; 1 Reed, Stat. Frauds, sec. 417; Williams v. Morris, 95 U. S. 444, 455 . In this case the contract neither states the price nor furnishes the means or data whereby that price can be computed or ascertained, and is therefore an invalid contract and wholly incapable of enforcement. The memorandum being required to be complete in and of itself, parol evidence can not be admitted to piece out the incomplete writing and make it a complete instrument. At one time in this court the heresy was announced that parol testimony was admissible for the purpose indicated. O’Neil v. Crain, 67 Mo. 250 . The last erroneous adjudication on this subject is found in Ellis v. Bray, 79 Mo. 227 ; but the contrary and correct ruling was declared in Ringer v. Holtzclaw, 112 Mo. 519 , and followed in Boyd v. Paul, 125 Mo. 9 ; 28 S. W. Rep. 171 . We hold, therefore, that there is no contract in the case at bar; that is, such an one as satisfies the requirements of the statutes of frauds.

6. It is insisted that the answer of defendants, as to its denial of the execution of the controverted instrument should have been verified by affidavit. Section 2088, Revised Statutes 1889, requires that “when any petition shall be founded upon any instrument of writing, charged to have been executed by the other party.......it shall be filed with said petition.” Upon this section it has been ruled that it does not apply to instruments executed by loth parties. Campbell v. Wolf, 33 Mo. 459 ; Bowling v. Hax, 55 Mo. 446 . Now section 2186, on which plaintiffs rely, provides “when any petition shall be founded upon any *437 instrument in writing, charged to have been executed by the other party.......the execution of such instrument shall be adjudged confessed unless,’’ etc. This section was enacted in 1883, long after the adjudications in 33 Mo. and 55 Mo. supra, were made, so that the presumption may well be indulged that the legislature when using for the second time the words “charged to have leen executed ly the other party,” used them in the same sense that they were used in the former section, and as determined by two previous adjudications of this court. And in this connection it is not to be forgotten that the words in question are found in each instance in chapter 33, Revised Statutes 1889, entitled “Code of Civil Procedure” and “their meaning may be inferred from earlier statutes in which the same words or language has been used, where the' intent was'more obvious or had been judicially ^established.” Sutherland, Stat. Construe., secs. 229, 255. For this reason we hold that section 2186 does not apply and was not intended to apply to instruments executed by loth parties.

7. But whatever might be the proper construction of section 2186, is of no moment now, inasmuch as no motion was made for judgment on the pleadings; no objection made to the introduction of any evidence touching the alteration; nor did the motion for new trial specify any such supposed insufficiency of the answer. In such circumstances it is quite too late to raise such a point in this court for the first time. R. S. 1889, sec. 2302; Danforth v. Railroad, 123 Mo. 196 ; Girard v. Car Wheel Co., 123 Mo. 358 ; Nolan v. Johns, 126 Mo. 159 ; Smith v. Lindsey, 89 Mo. 76 ; Edmonson v. Phillips, 73 Mo. 59 ; Hayden v. Railroad, 124 Mo. 566 .

8. The further contention is made that the opinion in Thuey v. Kelly, 102 Mo. 522 , is an adjudication of the facts at issue in this ease. The testimony *438 in this case is entirely different from what it was when the case was here before, so the special judge has stated. When the original ease was here, it was held that the evidence showed that words were interlined before the contract was executed. Here the present record contains the most convincing evidence that the interlineation was made after the execution without Thuey’s knowledge or consent. And the judgment was reversed and the cause remanded on the ground that the suit should'have been brought in the name of D. T. Kelly. But there were no directions given in remanding "the cause. So that there was no adjudication made and the matter remains as it was at first, unhampered by anything which occurred on a former appeal. It would be of most pernicious consequence if every error which occurs in this court should bind the parties litigant on a retrial.

9. And speaking about errors, we think this court erred in holding in Kelly v. Thuey, supra, that the right to enforce specific performance existed in D. T. Kelly and him alone; because it is very familiar learning that the agent may enter into a contract for the purchase of land for an undisclosed principal. And the principal may maintain a suit in his own name and enforce the contract, it being immaterial whether the principal was known or unknown during the transaction, or whether the party supposed he was dealing with the agent personally and on his own behalf. Pomeroy, Spec. Perf. [2 Ed.], sec. 89; Pry, Spec. Perf. [3 Ed.], secs. 238, 239, 240, and cases cited. We shall decline to follow the ruling of that case on this point.

Por the reasons given above we affirm the decree dismissing the cause.

Gantt, C. J., Burgess, J., concur. Robinson and Brace, JJ., concur in all except the fourth and ninth paragraphs. Williams and Marshall, JJ., not sitting.