Tebeau v. Ridge

• Citation: 261 Mo. 547,170 S.W. 871
• Decision Date: 17 November 1914
• Docket Number: No. 16219.,No. 16218.,16218.,16219.
• Parties: TEBEAU v. RIDGE. SAME v. RIDGE et al.
• Court: United States State Supreme Court of Missouri

170 S.W. 871

261 Mo. 547

TEBEAU v. RIDGE.

SAME v. RIDGE et al.

No. 16218.

No. 16219.

Supreme Court of Missouri.

November 17, 1914.

1. JUDGMENT (§ 263) — PETITION — SUFFICIENCY — WAIVER OF OBJECTIONS.

Where no objection was made at the trial to a petition for specific performance, but the case was tried on the theory that defendant owned the property, and such ownership was admitted in the testimony of defendant himself, he was not entitled to an arrest of judgment in favor of complainant, on the ground that the petition was fatally defective because it did not specifically allege defendant's ownership.

2. SPECIFIC PERFORMANCE (§ 114) — PETITION — DEFENDANT'S OWNERSHIP — ALLEGATION.

Where a lease of real property to complainant contained an option to purchase, the setting out of the lease in hæc verba, in a petition to compel specific performance, constituted a sufficient pleading of defendant's ownership of the property.

3. LANDLORD AND TENANT (§ 92) — LEASE — OPTION TO PURCHASE — VALIDITY — CONSIDERATION — "INTEGRAL."

Where defendant drew and executed to complainant a lease of land for a baseball park, which lease contained an option to complainant to purchase at specified prices, the option was an integral part of the contract and supported by complainant's agreement to pay the stipulated rent as a sufficient consideration; the term "integral" being used in the sense of "lacking nothing of completeness."

4. SPECIFIC PERFORMANCE (§ 51) — LEASE — OPTION TO CONVEY.

Where defendant in 1901 leased city property to complainant for a baseball park, the lease containing an option to complainant to purchase the property during the first year at $30 per foot, during the second year at $35 per foot, and after that until the fifth year at $40 per foot, and between the fifth and tenth years at $50 per foot, such prices having been fixed entirely by defendant, a decree of specific performance in 1909 at the $50 price would not be denied on the ground that an exercise of the option was unjust or unconscionable.

5. SPECIFIC PERFORMANCE (§ 126) — CONTRACT TO CONVEY LAND — VENDOR'S WIFE — REFUSAL TO SIGN — ABATEMENT OF PRICE.

Where complainant, without knowledge that defendant was married, accepted from him a lease of city property for a baseball park, which lease contained an option entitling complainant to purchase the land at specified prices and to receive a warranty deed, and complainant electing to take advantage of the option, defendant refused to convey either his own title, or by a deed in which his wife joined, and also refused to request her to join, complainant was entitled to a decree for specific performance and, in case the wife did not join, to an abatement of the price equal to the present value of her dower.

Bond and Woodson, JJ., dissenting.

En Banc. Appeal from Circuit Court, Jackson County; John G. Park, Judge.

Suit for specific performance by George Tebeau against Thomas S. Ridge and another. From a decree for complainant for less than the relief demanded, defendant appeals, and complainant prosecutes a cross-appeal. Affirmed on defendant's appeal, and reversed, with instructions on complainant's cross-appeal.

Suit from Jackson county in equity for specific performance of a contract to convey land. Tebeau (hereafter called plaintiff to distinguish him, since the case is here on cross-appeals) had a decree against Thomas S. Ridge, hereafter called defendant, but upon the refusal of the court nisi to diminish the purchase price by the value of the inchoate dower of Effie S. Ridge, wife of defendant Thomas S. Ridge, hereafter called Mrs. Ridge, said Tebeau appealed.

The status of these appeals, which have been consolidated by stipulation, is, then, that defendant is appealing as against plaintiff, for that the latter obtained any decree whatever, while plaintiff is appealing as against Mrs. Ridge, for whom the court found, for that no diminution was decreed to him for the inchoate dower of Mrs. Ridge. The latter does not appeal.

The learned trial court made and filed his findings of fact, which throw much light upon the case made and are besides the subject of criticism leveled at them by defendant. For the latter reason, and since they succinctly set out the facts and greatly shorten our statement, we set them out, as follows:

"The court, being fully advised in the premises, doth find the issues in favor of the plaintiff and against the defendant Thomas S. Ridge, and doth further find from the proofs and evidence: That the allegations of fact in plaintiff's petition are true. That the defendants, Thomas S. Ridge and Effie S. Ridge, are and were at all the times herein referred to husband and wife. That on or about December 31, 1901, the plaintiff and defendant Thomas S. Ridge, for value received, and in consideration of the mutual agreements and covenants therein contained and the rents therein reserved, entered into, executed, and delivered each to the other a written agreement in words and figures following, to wit: `This article of agreement witnesseth: That Thomas S. Ridge has this day rented to George Tebeau, in the present condition thereof, the tract of ground bounded by Olive street on the west, Twentieth street on the south, Prospect avenue on the east and the line of the Kansas City Belt Line Railway on the north, in Kansas City, Mo. It is understood by the clause which follows relative to subleasing that said Tebeau shall have the right to rent the above-described premises to others for occasional unobjectionable entertainments. Said Ridge to have free access to said premises on all occasions. Said Tebeau shall have the option of purchasing said property during the first year of this lease at and for the price of $30 per front foot on Olive, Wabash and Prospect streets, during the second year at $35, after the second year and until the fifth year at $40 per foot, and between the fifth and tenth year at and for the price of $50 per front foot as above measured on the three streets frontage, for the period of ten years from the 1st day of January, 1902, on the following terms and conditions, to wit: For the use and rent thereof the said Tebeau hereby promises to pay Thomas S. Ridge or to his order $700 per year for the first five years and $900 per year for the next five years' time above stated, and to pay the same quarterly at the first of each quarter; that he will not sublet or allow any other tenant to come in with or under him without the written consent of said Thomas S. Ridge; that all of the property of said Tebeau on said premises, whether subject to legal exemption or not, shall be bound and subject to the payment of said rents; that in default of the payment of any quarterly installment of rent for ten days after the same is due, he will, at the request of said Ridge, quit and render to him the peaceable possession thereof, but for this cause the obligation to pay shall not cease; and finally at the end of the term he will surrender to said Ridge, his heirs, or assigns, the peaceable possession of said premises, and at the expiration of said lease the said Tebeau shall have the right to remove from said grounds all buildings erected by him thereon, upon the express condition of his having paid all rents due under this lease and not otherwise. In witness whereof, the parties have subscribed to duplicate copies hereof, to be retained by each party hereto.'

"That said agreement was duly acknowledged by the plaintiff on the 23d day of January, 1905, and thereafter duly recorded upon the records of the recorder's office of Jackson county, Mo., at Kansas City, on the 26th day of January, 1905, in Book B, No. 959, at page 14 of said records. That defendant Ridge had knowledge that said land was being obtained by plaintiff for a baseball park. That plaintiff has faithfully complied with and performed all the terms, covenants, and agreements contained in said agreement and binding or obligatory upon him. That he entered upon the said land under said agreement and made valuable and permanent improvements thereon. That the defendant Thomas S. Ridge insisted upon free access to the grounds and games as one of the conditions for dealing. That on or about July 31, 1909, plaintiff exercised the option of purchasing the property described in the said agreement and elected to purchase the same according to the terms of said agreement, at and for the price and sum of $50 per front foot, as measured on said Olive, Prospect, and Wabash streets, it being the extension of said Wabash street across said tract of real estate between said Olive and Prospect streets, in Kansas City, Mo., which said date, namely, July 31, 1909, being the time of the exercise of the said option and the election by the plaintiff to purchase said property, occurred between the fifth and tenth year of the period of the said agreement and lease. That the amount of frontage of the above-described real estate on the streets named in the said agreement, to wit, Olive, Wabash, and Prospect streets, is 1,364 feet, and the price thereof fixed by the said agreement at the date aforesaid at $50 per front foot, as measured on the said streets, is $68,200. That the plaintiff did on July 31, 1909, concurrently with and as part of the transaction of exercising his said option and electing to purchase said real estate under and according to the terms of the said contract, tender and offer to pay to the defendant Thomas S. Ridge the full price of the said real estate, to wit, the sum of $68,200, in lawful money and legal tender of the United States, and did thereupon, and as part of the same transaction, notify said Ridge of his exercise of the said option and his election to purchase said land and of his tender and offer to pay said purchase price thereof, and thereupon the defendant Thomas S. Ridge rejected and refused to accept the said tender, and failed and refused to carry out the terms of the said contract, and...