Ahrens v. Dodd
| Decision Date | 13 October 1992 |
| Docket Number | No. 60548,60548 |
| Citation | 863 S.W.2d 611 |
| Parties | Theodore James AHRENS, et al., Appellants, v. Charles F. DODD, Respondent. |
| Court | Missouri Court of Appeals |
Charles Harry Billings, Mary Bruntrager Schroeder, St. Louis, for appellants.
Joseph B. Dickerson, Jr., St. Louis, for respondent.
Appellants Theodore Ahrens (Purchaser) and Patricia Ahrens sought specific performance of a real estate contract and in the alternative, $200,000. The circuit court found the specific performance claim was barred by the statute of frauds and granted Respondent Charles Dodd's (Landowner's) motion to dismiss. In a subsequent proceeding, the court sustained Landowner's motion for judgment on the pleadings on the money claim. Purchaser appeals both decisions. We affirm in part, reverse in part.
In his petition, Purchaser asserts the following. Purchaser and Landowner entered into a contract to convey a 31-acre tract known as Blue Bell Trailer Court for $305,000. Purchaser assumed possession of the property and tendered a total of $65,000 toward down payment and earnest money. He also made improvements and repairs to the property. Landowner refuses to accept further tender of the purchase price or to convey title. A series of memoranda satisfy the statute of frauds.
Purchaser alleges the trial court erred in granting Landowner's motion to dismiss on his specific performance claim because (1) evidence of the existence of several writings "together with the attending circumstances" were sufficient to satisfy the statute of frauds, and (2) part performance removed the case from the statute of frauds. He alleges the trial court erred in entering judgment on the pleadings because "material issues of fact existed."
Cave v. Cave, 593 S.W.2d 592, 595 (Mo.App.1979) (citations omitted).
Whether a writing satisfies the statute of frauds is a question of law. Waller v. Tootle-Campbell Dry Goods, Co., 59 S.W.2d 751, 754 (Mo.App.1933). Missouri's statute of frauds, § 432.010, RSMo (1986), states: "No action shall be brought ... upon any contract made for the sale of lands ... unless the agreement upon which the action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith...."
Further, the writing must contain the essential terms of the contract, including parties, subject matter, consideration or price, and promises on both sides. Seabaugh v. Sailer, 679 S.W.2d 924, 926 (Mo.App.1984). The writing "need not be a single document but may comprise several writings that, in combination, supply the essential terms." Vess Beverages, Inc. v. Paddington Corp., 941 F.2d 651, 654 (8th Cir.1991), citing Bayless Bldg. Materials Co. v. Peerless Land Co., 509 S.W.2d 206, 211 (Mo.App.1974).
Purchaser attempted to introduce two checks and a photocopy of a contract to satisfy the statute of frauds. His testimony indicated the copy of the contract had been altered to reflect a subsequent $55,000 payment he made on the property. The copy reflected Purchaser's signature, but not Landowner's. It appears as follows:
Date pa [sic]
Total purchase price for Blue Bell Court $305,000.00
[handwritten] 12/4/8 [sic]
Earnest money received as per this 10,000.00 ________
receipt
Additional down payment due 90,000.00 ________
Balance due after receipt of additional 205,000.00
earnest money collected
Total Earnest money received as per this receipt $10,000.00 only
Interest rate to be @ 12% per annum or a monthly mortgage payment of $2593.77
Charles F. Dodd agrees to hold a first deed of trust in the amount of
$205,000.00 amortized over a twenty year period
Signed By _______________________________
Signed By [handwritten] Ted Ahrens $55,000.- 12/31/85
[handwritten] Additional payments
Both checks offered by Purchaser are payable to Charles Dodd and drawn on the account of T.J. Ahrens Contracting, Inc. On the back of each appear bank stamps and the endorsement of Charles Dodd. One check is for $10,000 and is dated 10/4/85; the notation "down payment on trailer park" appears on the memo line. The other check is for $55,000; on it is noted "excavation equipment."
The contract and the check identify the property conveyed as "Blue Bell Court" and "trailer park," respectively. We first look to whether this description sufficiently identifies the subject matter of the agreement.
"Realty need not be fully and accurately described as long as the writing affords means whereby identification may be made perfect and certain by parol evidence." Randall v. Harmon, 806 S.W.2d 136, 138 (Mo.App.1991) (citations omitted). "To determine certainty, the instruments, together with the attending circumstances, are considered." Seabaugh v. Sailer, 679 S.W.2d at 926.
Where realty is identified by a popular name, it is incumbent upon the party asserting satisfaction of the statute of frauds to establish that the realty was so generally and commonly known and recognized by that name, that it could have been identified and delineated readily and without dispute. Macy v. Day, 346 S.W.2d 555, 559 (Mo.App.1961).
Purchaser, in his testimony, referred to the property as Blue Bell Trailer Court. Landowner, in his deposition, responded to questions about his property when it was referred to as Blue Bell Trailer Court. However, in his pleadings, Landowner denies that the property Purchaser claims was to be conveyed was known as Blue Bell Trailer Court, and no evidence was offered to show that the property was so generally known by that name that it could be readily identified without dispute.
Also, the documents and attending circumstances do not make this identification perfect and certain. Purchaser described the property as approximately 31 acres with about 26 mobile home pads on it. He stated that he and Landowner walked the boundaries of an adjacent 1.97-acre tract which was to be excluded from the sale; Landowner lived in a mobile home on this property.
A copy of a deed for a 33.72-acre tract owned by Landowner was attached to the Purchaser's petition. However, this deed appears to reflect an undivided tract which includes the 1.97 acres. The writings offered by Purchaser do not indicate how many acres were to be conveyed or whether Blue Bell Trailer Court encompasses less than Landowner's entire tract. Further, Purchaser did not offer any evidence of the boundaries of excluded portion. Purchaser's testimony that the 1.97 acres were excluded and that he and Landowner walked the boundaries of the excluded portion is insufficient to render identification of the land perfect and certain.
This case is distinguishable from Ray v. Wooster, 270 S.W.2d 743 (Mo.1954), relied on by Purchaser. There, the name "Oak Hill Farm" in an earnest money receipt was found to be a sufficient description. The...
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