Land Imp., Inc. v. Ferguson

• Decision Date: 11 December 1990
• Docket Number: Nos. WD,s. WD
• Citation: 800 S.W.2d 460
• Parties: LAND IMPROVEMENT, INC., Appellant, v. John H. FERGUSON and Jack W. Isley, Respondents. 43066, WD 43137.
• Court: Missouri Court of Appeals

Page 460

800 S.W.2d 460

LAND IMPROVEMENT, INC., Appellant, v. John H. FERGUSON and Jack W. Isley, Respondents.

Nos. WD 43066, WD 43137.

Missouri Court of Appeals Western District.

Dec. 11, 1990.

Rodger J. Walsh, Independence, for appellant.

E. Wayne Taff, Kansas City, for respondents.

Before BERREY, P.J., and FENNER and ULRICH, JJ.

BERREY, Presiding Judge.

This is an action in which plaintiff, Land Improvement, Inc., sought to recover money damages against defendants, John Ferguson and Jack Isley. Ferguson and Isley counterclaimed against Land Improvement. Both the petition and counterclaims were tried together. On November 20, 1989, the court entered judgment in favor of Land Improvement in the amount of $77,492 after offset. The court ruled against Ferguson and Isley on their counterclaims. Respondents timely filed an authorized after trial motion, in this case a motion to amend the judgment. On February 20, 1990, the court amended its judgment, awarding judgment to Land Improvement in the amount of $3,220 and ordering Ferguson and Isley to specifically perform their contract with appellant by conveying two and one-half acres of land to plaintiff. The court reaffirmed its judgment as to the counterclaims. Both sides appeal from the judgment and these appeals have been consolidated. Land Improvement claims that the trial court erred in amending the money judgment to one of specific performance because specific performance was never pled and the judgment did not give a legal description of the acreage in question and was thus too indefinite and uncertain to support specific performance. Land Improvement also argues that the court below erred in amending the judgment because defendants had not waived specific performance and that the court erred in determining their damages. These later two points will not be addressed as they are not in compliance with Rule 84.04(d) and (e) in that although the arguments state the "wherein" they do not state the "why" merely citing a few cases as authority at the end of their argument with no effort made to show how they are applicable. Ferguson and Isley, in the cross-appeal, argue that the trial court erred in: (1) finding that the party abandoned the contract whereby Land Improvement was to procure acreage for Ferguson and Isley in exchange for land; and (2) not entering judgment for Ferguson and Isley on the counterclaim in the amount of $221,000.

In June, 1988, John Ferguson and Jack Isley were members of a partnership known as 291/33 Investors. The partnership owned 25.57 acres of land located in Liberty, Missouri, acquired for the purpose of development for industrial and commercial use. The defendants determined that "dirt work" needed to be done on the property and entered into discussions with William L. Larkin, the president of Land Improvement, Inc. Larkin testified that, "I said that it looked like it was about a $90,000 job and that we would be interested in doing it either for the money or for a parcel of land." This parcel, two and one-half acres, was described by Larkin as "bounded on the east by the railroad right-of-way and it was just going to be in the area across the creek which joined the railroad." The parties agreed to this orally. Nothing was written down. This agreement and all subsequent agreements were oral. The land was to be conveyed to plaintiff when the work was done.

In August, 1988, Land Improvement presented Ferguson and Isley with a bill for $100,000 although the work had not been completed. This bill was drawn for the purpose of turning the bill into the bank so that Larkin could draw upon his credit line at the bank by treating it as an account receivable. The bank was aware that the transaction was one involving land for services.

The parties also agreed that $10,000 worth of additional work on the land was needed and this work was performed by plaintiff. A further oral agreement was entered into by the parties. In this agreement Larkin was to act as a "straw man" for the purpose of acquiring a tract of land which bounded on the south of defendants' acreage, a tract referred to as the "Wymore property." Wymore, the owner of this property refused to sell it to Ferguson and Isley. In return for acting as a straw man, Larkin's acreage would be increased to three and one-half acres. The three and one-half acres agreed to were the same as the two and one-half agreed upon except the property now included a creek. Larkin prepared a sketch of the property.

Larkin entered into a contract with Wymore for the purchase of the "Wymore property," obtaining a title commitment. He paid $1,000 down. The total purchase price was to be $30,000. The defendants never tendered the $1,000 down payment nor the balance of $29,000 to Larkin. At the October 11, 1988, closing the property was bought instead by Larkin's banker Ed Merrifield. At a meeting between the parties the morning of the closing, Larkin testified that after talking about various deals and trades, "at the end of the meeting as far as I knew nothing had happened."

Although Larkin had not acquired the property for the partnership, the partnership did offer to convey the original two and one-half acres when the original work agreed on was completed. The work was never fully completed as there was more work to be done around a gas line which had not been lowered by the gas company.

Land Improvement filed a three count petition for damages against Ferguson and Isley claiming breach of contract and fraud and sought recovery in quantum meruit. Ferguson and Isley counterclaimed seeking specific performance, asserting a breach of contract and claiming fraud.

The trial court found an express oral contract; a "land-for-services contract." The oral agreement to buy the Wymore property was found to have been abandoned by the parties. Under the theory of quantum meruit, the court found, "that the plaintiff is entitled to receive $74,272.00 for the work performed plus $9,500.00 for additional work done and not paid for, for a total of $83,772.00." The court offset this figure by $6,280, the amount it found for defendants on their breach of contract claim as plaintiff had not performed all of the work. The original judgment, therefore, was a money judgment in the amount of $77,492. The trial court amended its original judgment finding that the defendants did not waive specific performance of the original land for services contract. The money judgment of $77,492 was withdrawn and the court ordered defendants to convey the "two and one-half acres of the land in question, as previously agreed to in the original contract" to the plaintiff. The court offset the $9,500 owed to plaintiff for the additional work that was done by the $6,280 for the value of the work not completed by plaintiff. This left a money judgment of $3,220. Both sides appeal.

I. The Land Improvement Appeal

Land Improvement's argument on appeal, although confusing and difficult to follow as presented by its briefs, basically can be restated as two issues: (1) whether the trial court erred in amending the money judgment because specific performance was not pled by either plaintiff or defendants and the judgment failed to identify the acres to be transferred; and (2) whether the trial court erred in granting specific performance because defendants did not perform their portion of the original contract as late as November 2, 1988, and they had no legal description of the acreage they intended to convey and the lack of such description made the contract too indefinite and uncertain to support specific performance. This case was tried by the court and is thus subject to the familiar rule outlined in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Thus, the judgment will be affirmed unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Id. at 32.

Initially, it must be noted that defendants certainly did claim that specific performance was the proper remedy if Land Improvement was entitled to relief. Land Improvement itself, in both the opening statement and closing argument indicated as much. After discussing the various agreements between the parties, counsel for Land Improvement in his opening statement stated, "So at the conclusion of this matter, it's the plaintiff's contention that he's owed either three and a half acres, or he's owed $100,000." Similarly, in closing counsel argued that, "I think the evidence was that he's entitled either to--uncontradicted evidence--he's either entitled to two to two and a half acres or 3.5 acres...." On direct examination counsel for Land Improvement developed Larkin's testimony about the agreement and the acreage in question. For all intents and purposes the issue of specific performance can be deemed as tried by consent. "When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated as if they had been...