dissenting opinion.
FARRINGTON, J.— The plaintiff, a foreign corporation, authorized to do business in Missouri, some time prior to February 20, 1912, had sold forty acres of land situate in Stoddard county, in this State, to one Rich, and had taken a deed of trust as security for part of the'purchase price. At that time Rich was not in possession of the land but plaintiff had not foreclosed under its deed of trust; however, it was looking for a purchaser for the land when it should perfect title in itself.
The evidence shows that E. R. Bartlett, a real estate broker of Springfield, Illinois, was disposing of lands belonging to plaintiff in southeast Missouri, and that on his negotiations deeds were being made by plaintiff to customers he produced that were willing to make terms of purchase satisfactory to the plaintiff. A few days prior to February 20, 1912, Bartlett took the defendant, an Illinois farmer, to Stoddard county to look over the land. They drove out to the place and were there according to defendant’s testimony some ten or fifteen minutes.' They returned to Springfield, Illinois, and entered into a contract wherein the Illinois & Texas Land Company (a real estate, partnership principally owned and controlled by Bart-let who carried on the negotiations with defendant) *249agreed to sell the farm for a consideration of two thousand dollars, and two hundred and fifty dollars of the purchase price was paid at the time, the contract providing for securing the deferred payments. The following provision was in the contract: “By agreement $12 is to be allowed second party as a credit out of the $1750 at the time of closing deal for his railroad fares paid at time of going to examine the land before purchasing. It is understood and agreed that the land herein is to be conveyed clear of all mortgage or liens except the $1750 due from the second party, and in case of failure of first party to so convey within thirty days from date of payment of earnest money, then the second party may elect to have his $250 earnest money returned to him and cancel contract.”
On March 26, 1912, defendant, not yet having received a deed, moved from Illinois to the land in Stoddard county. He testified that Bartlett told him at that time that the deed.had been slightly delayed but would be forthcoming in a few days, and that acting on this assurance he moved onto the place and commenced work.
On February 23, 1912, three days after the contract was signed, the Illinois & Texas Land Company, by E. R. Bartlett, president, wrote the following letter enclosing the contract he had made with defendant:
‘ ‘ Springfield, 111.
“Feb. 23, 1912.
“Mr. William Collins or D. C. Steele,
“St. Louis, Mo.
“Dear Sirs: As I wrote you Wednesday, I contracted a sale of the W. F. Rich place to a Mr. William G-useman of Cornland, 111., but could not get into the bank until today to get the money.
“If I understand you right, Mr. Steele, Mr. Rich has left his deed with you people, that is has turned the place over to you, and you said to sell at $40 net to you which I did.
*250“I enclose herewith a draft for $185 as first payment, will make $15 more if desired making $200 first payment, and I will take a second mortgage for the balance due me.
“As I spoke to Mr. Collins just before he was taken sick about rearranging the mortgage on this tract to make it five per cent money it will perhaps be best to do so, even if you add in the difference between the five per cent and six per cent to the principal dividing the amount into ten equal payments, but if you prefer to let the old mortgage stand and deed subject to it I can arrange it by making the difference in interest in my second mortgage.
. “It might be as well to make the deed direct to me, E. Russell Bartlett, and I will execute the new papers and then deed to Mr. Guseman subject thereto, or if you prefer make them direct to Mr. Guseman.
“If you have an abstract of this tract please send it to me and I will copy and return it, if you have not you had better send and have it made in connection with the J. C. Walker abstract in the same section, this can be done with little extra cost as they will run the same.
“Not knowing which of you I will find in the office I make the draft payable to Mr. Collins,
“Tours respectfully,
“The Illinois & Texas Land Co.,
“By E. R. Bartlett, Pres.
“P. S. — I attach copy of my sale contract.”
It appears in the evidence that William Collins was the general agent in charge of all the plaintiff’s lands in Stoddard county and that Steele was Iris assistant.
It will be borne in mind that, as this letter disclosed, the net price to the plaintiff was to be forty dollars an acre and the price Guseman was paying to Bartlett was fifty dollars an acre; the difference is the *251amount of compensation tlie agent (Bartlett) received for making the sale.
This letter, as well as the testimony of Collins, shows that he (Collins) received and kept one hundred and eighty-five dollars out of the initial payment of two hundred and fifty dollars.
The plaintiff had some trouble with Eich and could not obtain a deed from him. It foreclosed the Eich deed of.trust, buying the land, and afterwards prepared a warranty deed in which the grantee was defendant Guseman and also prepared the deed of trust and notes for Guseman to sign, all of which was carrying out the sale contract made by Bartlett with the defendant.
On July 23,1912, before any deed had been offered the defendant under the contract, defendant wrote the following letter to the Illinois & Texas Land Company electing to cancel under his contract and asking for a return of' the two hundred and fifty dollars with other items therein shown:
“Dudley, Mo., July 23, 1912.
‘ ‘ To the Illinois & Texas Land Company,
“E. E. Bartlett, President.
“You are hereby notified that I have canceled and do hereby cancel the contract entered into with you on the 20th day of February, 1912, for the purchase of the northwest quarter of the southwest quarter of section thirty-two, in township twenty-six, range nine, containing forty acres, at fifty dollars per acre, a total of $2000. $250 cash in earnest money. The balance of $1750 payable in ten years. $175 the first day of January of each year and every year1 until paid in full, deferred payments to bear five per cent per annum.
- “Upon the execution of said contract written and signed in triplicate of which you have two copies, which said earnest money was duly paid on said February 20, 1912. At which time you undertook and agreed to convey said land or cause to be conveyed said land *252by good and sufficient warranty deed within thirty days from the date of payment of said earnest money, $250. And in failure to do so then I, the second party, might elect to have and receive his said $250 earnest money, returned to him and cancel the contract. Which said contract you have forfeited and have wholly failed to execute and perform on your part to the injury and damage of the said party of the second part in this: Party of the second part moved from the State of Illinois to take said land and carry out his contract in that behalf at a cost of $78.50', and has cleared three acres of land on said premises, reasonably worth $4.50 per acre and the rent for the present year, making a total sum of $92. And deduct therefrom the rent of the cleared land on said premises, twenty acres at $2.50 per acre, total $50, leaving a balance of $42 due this party of the second part .in addition to said $250 earnest money and interest thereon at the rate of six per cent per annum. All of which this party of the second part demands immediáte payment. Party of the second part agrees to quit possession of said premises on or before the 31st day of December, 1912, and yield peaceable possession to party of the first part. Witness my signature on this the day and date first above written.
“William Guseman.”
Some time after this, defendant was offered the deed, heretofore referred to, prepared by plaintiff, which he refused. There is evidence in the record that the deed which plaintiff prepared to convey title to Guseman was kept in its office and not turned over to Bartlett.
The plaintiff, having bought the land under the Rich foreclosure, and the defendant refusing to carry out the contract, this suit in ejectment was instituted.
The defendant in no way disputes plaintiff’s title. He was in possession when the suit was brought. His answer set up an equitable counterclaim stating a great *253many facts to the effect that plaintiff’s agent, Bartlett, misrepresented the facts with reference to this place which misled him to his injury. The view I take of the case requires no discussion of that question. Defendant’s answer, after setting up the transaction and the alleged fraud, concludes as follows:
“Defendant avers that after he had been induced as foresaid to make said contract of purchase and to lay out and expend the sums of money aforesaid and to move onto and clear up and improve said land as aforesaid, and as hereinafter set out, plaintiff and its said agent failed and refused to deliver to this defendant an abstract of the title to said land showing a fee simple title in him subject to the balance of the purchase price due plaintiff thereon, and failed and refused to make, execute and deliver to the defendant a warranty deed conveying to him the title in fee to said land, conditioned in accordance with the terms of said contract, as they had represented and agreed they would do whereupon on the 23d day of July, 1912, defendant duly notified plaintiff’s said agent of his intention to forfeit said contract of purchase, as he had the right to do under its terms and privisions, and demanded the return to him of said sum of $250, paid to plaintiff as aforesaid, and a compromise sum of his damages in the premises, with the view of avoiding the delay and expense of litigation in court, hut defendant says that plaintiff wholly disregarded his reasonable and just demand, refused to repay to defendant said sums or any part thereof and in furtherance of its original designs in attempting to retake from this defendant by this proceeding in ejectment said land, and thus and thereby appropriate defendant’s money and the fruits of his toil as aforesaid without recompense to him or cost to them.
“Defendant avers that the sum he has expended and labor he has performed and its value by reason of the premises, are as follows:
*254Railway fare paid from Cornland, 111., to Stoddard county, Mo., to look at said land... .$ 12.00
Paid under the terms of said contract of purchase to plaintiff in cash .............. 250.00
Interest on "above sum for one year and ten months at six per cent per annum...... 25.00
To expense of moving from Cornland., 111., to Dudley, Mo.......•..................... 73.00
To building thirty rods of woven wire fence on said land ............................. 15.00
To building one smokehouse on said land...... 15.00
To building one chiekenhouse on said land.... 15.00
To building one closet on said land.......... 1.50
To clearing twelve acres of land at $10 per acre, 120.00
To clearing 5 acres of said land at $5 per acre, 25.00
“Making a total of $551.50 due this defendant, and he prays that an accounting be had between he and the plaintiff, and that he recover said sum of $551.50 from said plaintiff, and his costs herein laid out and expended, and that said sum so recovered may be declared a lien on said land and that said plaintiff may be enjoined and restrained from interfering with the possession of said premises until such judgment and costs are paid, and for such other and further and general relief as, in equity and good conscience the court may deem meet and proper.”
On reading this record I am convinced (and will not discuss the details) that Bartlet was the representative, agent, or broker of the plaintiff for the purpose of disposing of its lands in Stoddard county, and that although the actual title to this land was not in the plaintiff when the contract was executed, the plaintiff did hold a deed of trust on the land, knew that Rich the owner had defaulted and abandoned the land, and that they were negotiating with him with reference to acquiring a deed from him. Plaintiff did accept Bart-let’s. trade and finally offered to put it through, and as a result is now suing in ejectment because Guse*255man would not carry out the deal which Bartlett had made with him for plaintiff. Their agent, William Collins, who had full control of the business for plaintiff in Missouri, having been given a general power of attorney to manage and sell lands, received and kept one hundred and eighty-five dollars of the first payment, sent to him by Bartlett together with the contract made with Guseman. This general agent of the plaintiff — Collins—testified that during the year 1910 arrangements were made with Bartlett to sell plaintiff’s land in Stoddard county and that the negotiations finally culminated in plaintiff giving Bartlett options to sell the land at certain listed prices. The following excerpt from the testimony of Collins I think clearly shows that Bartett or the Illinois & Texas Land Company was acting as the agent of the plaintiff, and that as a scheme to sell the land they armed Bartlett with options to go out and find customers for plaintiff: “Q. Well, you.gave him the option? A. We finally gave him the option to sell these lands at a listed price for certain lands. Q. To sell to whom and from whom? A. To customers he could find. Q. To sell them to any customers he might fin'd, and for whom? A. If you would let me finish the substance of the correspondence— Q. Tell who he was to sell them for? A. For the Company. Q1. Now, go ahead and tell what you want to about it? 'A. That’s all. Q. In the correspondence you had with the Illinois & Texas Land Company who were you representing? A. The Connecticut Mutual Life Insurance Company. Q. Mr. Bartlett, -in the name of the Illinois & Texas Land Company sold other lands under this arrangement for the Company, did he not? A. Tes, sir.”
The evidence justified the conclusion that Bartlett was the agent of the plaintiff and that in making the contract with Guseman on February 20, 1912, he was acting for the plaintiff and that the plaintiff received the major portion of the benefits derived by .reason *256of that contract on that date. It stands admitted that up to July 23, 1912, plaintiff had not furnished defendant with the deed contracted for.- His letter of that date is a clear rescission of the contract on his part and expresses a determination to cancel the contract. This he had a clear right to do under the plain provision of the contract of February 20th; and merely because he had waived a cancelation up to that time' would not prevent him from canceling on that date as his delay caused no harm to the plaintiff — plaintiff being .responsible for the delay. It was entirely op-, tional with him to cancel at any time after thirty days when the plaintiff failed to carry out its agreement with him and because he did not cancel at the end of the thirty days and because he did go on the farm and give plaintiff a longer time in which to perfect the title and make him a deed are not acts on his part that avail the plaintiff anything. Plaintiff cannot complain because defendant did not require it to strictly comply with the contract. He was on the land, working and improving it, and plaintiff was advised of that fact all the time. His counterclaim, while it does deal with questions of fraud and fraudulent representations and seeks to recover some items on that account, does contain averments enough to give him relief on his cancelation of July 23d. The counterclaim contains items of damage which I do not think are justified in this case. His letter fixing the time of cancelation enumerates his items of damage and what he asks a return of, and to this he must be restricted. A plaintiff in ejectment is not entitled to possession in a ease where the defendant went into possession under the plaintiff’s chain of title without restoring to defendant his purchase money and the reasonable value of improvements made while in possession. [See, The Hannibal & St. Joseph R. Co. v. Shortridge, 86 Mo. 662; Foote v. Clark, 102 Mo. l. c. 408, 14 S. W. 981; Hutchinson v. Patterson, 226 Mo. l. c. 182, 126 S. W. 403; *257Patillo v. Martin, 107 Mo. App. l. c. 659, 83 S. W. 1010; House v. Marshall, 18 Mo. 368; and State ex rel. Jiner v. Foard, 251 Mo. l. c. 56, 157 S. W. 619.]
I think defendant is entitled to the two hundred and fifty dollars earnest money, the seventy-three dollars as shown by his counterclaim for expense of moving from Illinois to Missouri, and the thirteen dollars and fifty cents for clearing three acres of land, together with interest on these amounts to the date of suit, making a total of three hundred and sixty-eight dollars. The plaintiff was given a judgment for restitution and one hundred dollars damages for rent during the time defendant held the land. From this judgment defendant does not appeal.
All the other questions raised by appellant, such as the right to counterclaim in this action, laches, etc., were discussed in an opinion of this court handed down on December 12, 1912, in a case growing out of a similar transaction and argued and submitted with this case, wherein the Connecticut Mutual Life Insurance Company was appellant and Arthur P. Carson was respondent.
The defendant recovered in the trial court five hundred dollars and seventy-five cents. I think the judgment should be affirmed on condition that defendant by a written remittitur reduce the amount of his judgment so that it will be for three hundred and sixty-eight dollars, and in the event of his failure so to do, the judgment should be reversed and the cause remanded.