Missouri Real Estate Syndicate v. Sims , 1906 Mo. App. LEXIS 460 ( 1906 )

BLAND, P. J.

(after stating the facts). — 1. Under the ruling of the Supreme Court in this case (179 Mo. 679) the court properly refused defendant’s peremptory instruction to find for him, as the petition stated a good cause of action, and the evidence clearly entitled plaintiff to recover at least nominal damages, if nothing more.

2. The second refused instruction would have limited plaintiff’s recovery to the net value of the rents from the date of the sale by the trustee (when defendant took possession) to January 15,1902, when the note and deed of trust would have matured. Under the instructions given by the court, the measure of plaintiff’s damages was the difference, if any, between the reasonable value of the property and four thousand dollars, the amount due on the note at the date of the foreclosure sale. To limit plaintiff’s right of recovery to the net profits of the rents of the property from the date of the sale to January 15,1902, the assumption would have to be indulged that plaintiff would not or could not pay the four thousand dollar note when it matured — an assumption no court would indulge. Plaintiff, by bill in equity, might have had the trustee’s sale set aside and thus restored its equity of redemption. But it was not bound to pursue this remedy, for it had a right to maintain its action at law to recover damages for breach of the contract to extend the time of payment, and it follows, as day follows night, that in its action at law the measure of its damages is the value of its equity in the property. Plaintiff was deprived of this equity by the premature and wrongful sale under the deed of trust and nothing short of the money value of that of which it was deprived by the wrongful action of defendant could afford it adequate compensation.

3. It is contended that as the agreement for the extension was made Avith John Coombs, who never acquired the property or any interest in it, the benefits of the agreement did not and could not pass to plaintiff by the mesne conveyance from Helen Coombs. While Helen Coombs’ name is not mentioned in the written memorandum of the agreement for an extension, she signed the agreement as a party thereto, and it was made for her benefit, as shown by the evidence. It also appears that all the terms of the agreement are not contained in the written memorandum, but were patched out by the parol evidence, which clearly shows the extension was made for the benefit of whoever might become the purchaser of the property from the Springfield Milling Company, and it must have been known at the time by- all the parties to the contract, that Helen Coombs would become the purchaser, and we can see neither reason nor force in the argument, that because not specially named in the written memorandum, Helen Coombs could take no benefit from the contract of extension. All the evidence shows that neither she nor plaintiff would have bought the property if the extension had not been given and that the extension was made for the express purpose of enabling her to buy the property and that defendant was made acquainted with these facts, by which we think he is estopped to set up that Mrs. Coombs was not a party to the contract of extension.

4. The court’s instruction is criticised for telling the jury the uncontradicted evidence is that defendant waived the clause of the trust deed, requiring cyclone insurance. The clause providing for cyclone insurance gave defendant, as the holder of the deed of trust, an option in case such insurance was not kept up, to either foreclose the deed of trust or take out such insurance and charge its cost to the property. Defendant testified he overlooked this clause in the deed of trust, and that he had the foreclosure sale made for the reason plaintiff would not make itself personally liable for the payment of the note. Defendant at no time requested cyclone insurance from plaintiff; in other words, he did not exercise the option in the clause of the deed of trust referred to, and he cannot, at this late day, claim he foreclosed for the reason plaintiff failed to carry a cyclone policy of insurance on the property for his benefit. ■ While the clause of the instruction declaring a waiver is subject to criticism, the defendant, for reasons herein stated, was not prejudiced thereby. The instruction is also objected to on the ground that the only issue submitted to tbe jury was tbe value of tbe property. Tbe extension, tbe sale, tbe taking possession of tbe property by defendant immediately after tbe sale, were admitted facts on tbe trial, and tbe only controverted fact having any bearing on tbe issues in tbe case was tbe value of tbe property at tbe time of tbe sale by tbe trustee, bence we find no fault with tbe instruction.

5. Upon examination of tbe evidence, we tbink it shows tbe verdict of tbe jury to be sustained by substantial evidence, and it was approved by tbe learned judge, who presided at tbe trial. In view of these facts, tbe point, that tbe verdict is against tbe evidence and tbe weight of tbe evidence, is not open for review on appeal.

No reversible error appearing, tbe judgment is affirmed.

All concur.