Siess v. Anderson , 159 Mo. App. 656 ( 1911 )

CAULFIELD, J.

(after stating the facts). — Respondent has not aided us with a brief and we have been unable to discover' any ground upon which to sustain the decree under the evidence before ns. There is no doubt in our minds that Duffner, the real party in interest, by Ms agents, intentionally and with a mind to deceive defendant, misrepresented to her that Robinson and not Duffner was the real purchaser, and that she relied on the misrepresentation and was deceived by it and would not have entered into the contract had she not been so deceived. It is apparent then that if specific performance be decreed in this case a fráud practiced on the defendant will thereby be made snccessful. A. court of equity will not lend its aid to such an end. ‘ ‘ There is no maxim which a court of equity more unequivocally insists upon than that he who comes asking its aid must come with clean hands. A court of equity will not aid a party to commit a fraud. ’ ’ [Seibel v. Higham, 216 Mo. 121, l. c. 137, 115 S. W. 987.]

It might be urged, however, that defendant will receive the same price from Duffner which she .was willing'to take from Robinson and therefore she was not prejudiced by the deception; and Fry says that it is necessary, to constitute á misrepresentation which will prevent a specific performance, that the misrepresentation “be shown to have operated to the prejudice of the defendant.” [Fry, Spec. Perf. (3d Ed.), sec. 697.] But we do not believe .that in a'suit for specific performance the prejudice need be a pecuniary one. It may consist in depriving the defendant of something wMch induced her to enter into the contract. In this case the property was the defendant’s; she might keep it, or she might consent to part with it for such consideration as she saw fit, whether it be a price in money or the personalty of the grantee, or both. It is clear that she was unwilling to sell to Duff ner. To that extent she made the personalty of the grantee a material element of the contract which,she was willing to make. It should not lie in the mouth of the plaintiff to say that she is not prejudiced by being fraudulently deprived of the very thing which induced her to make the contract, viz., a grantee other than Duffner; at least not in a suit for specific performance where “the principles of ethics have a more extensive sway” than in ordinary cases, and the plaintiff “must as to every part of the transaction be free from any imputation of fraud and deceit.” [2 Kent’s Commentaries (14 Ed.), p. 826; Kerr on Fraud & Mistake (2 Ed.), p. 414.] Fry seems to be of that opinion, for he has said that a contract will not be specifically enforced against a defendant if it was induced by a.deception as to the real party with whom defendant was contracting. [Fry’s Spec. Perf. (3 Ed.), sec. 229.] And the California Supreme Court held such deception to be sufficient to defeat a suit for specific performance without regard to whether any damage to defendant had resulted therefrom. In the discussion, the court commends “the doctrine which does not insist upon measuring everything by the standard of damage, but so far as can be done, allows parties to determine what is for their own interests, and to contract or to refuse to contract accordingly. ’ ’ [Kelly v. Central Pac. R. R. Co., 74 Cal. 565.] Of course the mere taking of a contract in the name of one in secret trust for another does not render.the transaction fraudulent per se. The question is whether the consideration of the person enters as an element into the contract. If it does and there is deception ■as to the real person, the contract may not be enforced against the one deceived. [Fry, Spec. Perf. (3 Ed.), sec. 230.] We are satisfied that in this case -the consideration of the person with whom defendant was willing to contract entered as an element into the contract and that she was induced to enter into the contract by the deception practiced upon he,r by the plaintiff. Specific performance of the contract should therefore have been denied. The judgment of the trial court is accordingly reversed.

Reynolds, P. J., and Nortoni, J., concur.