Anderson v. Abernathy
| Decision Date | 14 November 1960 |
| Docket Number | No. 48032,No. 1,48032,1 |
| Citation | 339 S.W.2d 817 |
| Parties | Grace ANDERSON, Plaintiff-Respondent, v. Charles ABERNATHY and Erie Abernathy, husband and wife, Defendants-Appellants |
| Court | Missouri Supreme Court |
Clay Cantwell, Forsyth, for appellants.
Robert L. Gideon, Douglas Mahnkey, Forsyth, for respondent.
HOUSER, Commissioner.
The Circuit Court of Taney County decreed specific performance of an oral contract to sell Lot 5, Block B, Gateway Subdivision, in Taney County, and awarded plaintiff, Grace Anderson, $500 damages. On this appeal defendants Charles and Erie Abernathy, husband and wife, assert that the court erred in rendering the judgment and decree for plaintiff, for these reasons: (1) plaintiff failed to prove an oral contract to sell real estate, as alleged; (2) the action is barred by the Statute of Frauds, Sec. 432.010 RSMo 1949, V.A.M.S.; (3) there was not sufficient evidence to take the case out of the operation of the Statute of Frauds; and (4) there was no proof of damages.
This being an action of an equitable nature this Court reviews the entire record and reaches its own conclusions as to the facts, determining the weight and value to be given the evidence. In this process we defer, when proper, to the findings of the trial court. Jones v. Linder, Mo.Sup., 247 S.W.2d 817.
Plaintiff and defendants' evidence on the question whether there was an oral contract to sell Lot 5 was diametrically opposed.
Plaintiff-Grace Anderson's testimony, corroborated by the testimony of Lorraine Wagner, her niece, and Ted Robinson, who operated a filling station in the subdivision, if believed, clearly established the existence of an oral agreement between Grace Anderson and Charles Abernathy (sister and brother) and Erie Abernathy, on or about July 1, 1957, by the terms of which the Abernathys not only sold Grace Anderson Lot 6 for $700, $25 down, balance later, but also at the same time agreed to sell Grace Anderson Lot 5 for $700, payment to be made for Lot 5 at the end of the business year, in the summer of 1958. The Abernathys categorically denied the existence of any agreement to sell Lot 5 and testified that the contract related only to the sale of Lot 6.
The following facts are conceded by all parties: In July, 1957 Grace Anderson, a married woman, was living in St. Louis, and Charles Abernathy and his wife Erie were living in Taney County. Mr. Abernathy had purchased 80 acres of land in Taney County, which he subdivided and on which he had built a filling station and restaurant. About July 1, 1957 Mrs. Anderson and her niece Lorraine Wagner visited the Abernathys. Mrs. Anderson wanted to move to Taney County and go into business. They discussed the retail soft ice cream business, and Mrs. Anderson decided to establish and conduct such a business. Mr. Abernathy, who had lots for sale, offered to sell her land for the purpose . Mrs. Anderson and the Abernathys thereupon entered into an oral contract for the sale of Lot 6 of the subdivision, for a price of $700. Mrs. Anderson paid $25 that day, $275 on July 22, 1957 and $400 on August 17, 1957, following which she received a deed to Lot 6, duly executed by the Abernathys. Thereafter she and her brother discussed the erection of a building on Lot 6. Mrs. Anderson had plans for a building 24 X 34 feet in size. Mr. Abernathy agreed to oversee the erection of the building. He ordered the materials, and made all arrangements. He employed a carpenter whom he assisted, and the two, working together, built the building on Lot 6. One wall was located about three feet from the line dividing Lots 5 and 6. He was reimbursed by his sister forsums of money he advanced from time to time to pay materialmen. In December, 1957 or January, 1958, when construction of the building was completed, it was necessary for Mrs. Anderson to borrow $2,600 to pay the last of the bills for labor and lumber. Mr. Abernathy made the arrangements for the loan at a local bank. After the building was completed, Mr. Abernathy planned and laid out a system of driveways and culverts connecting both Lots 5 and 6 with the highway by two 30-foot driveways, a driveway and culvert on each lot. Mrs. Anderson testified that she put a culvert on Lot 5 because she thought and understood she 'was goin' to buy it.' The two driveways were separated by a flower bed which extended onto both lots. Mrs. Abernathy helped Mrs. Anderson put out the flowers in the flower bed. Mr. Abernathy was overseer of the granding. He ordered and had the gravel hauled and supervised the installation of the culverts and the construction of the driveways. They were built in such a manner that both lots could be used together and jointly as a unit for driving and parking customers' automobiles. Mr. Abernathy did some of this work personally. Mrs. Anderson paid the bills, for grading, graveling, culverts and concrete, in the total amount of $376.57. A water pipe, purchased and installed by Mr. Abernathy and paid for by Mrs. Anderson, was laid from the Abernathy property to the ice cream building for the supply of water. With full knowledge and consent of the Abernathys, Mrs. Anderson entered into the possession of the building and of both Lots 5 and 6 and commenced the operation of the business on May 1, 1958. Lots 5 and 6 were used jointly. Disagreements occurred with respect to the use of the water, and on August 25, 1958 Mr. Abernathy cut the water line in two with a hack saw and refused to supply any more water to his sister. She carried water in five-gallon cans for awhile. Thereafter she bought a large tank and pump, and eventually drilled a well. In August, 1958 Mr. Abernathy erected a woven wire fence all along the division line between the two lots, thereby preventing Mrs. Anderson's customers from approaching or leaving the building over any part of Lot 5. On December 4, 1958 Mrs. Anderson sent the Abernathys a letter notifying them that she was 'still ready and willing and able to complete our contract for the purchase by me of lot (5) * * *' and directing them to deliver a warranty deed to the People's Bank of Branson and received payment of the 'agreed' consideration.
The Abernathys not having responded to this letter, Mrs. Anderson filed suit in three counts: I, for specific performance and damages; II, for a mandatory injunction requiring the Abernathys to furnish her with water, and for damages; and III, for the return of personal property of Mrs Anderson placed in the possession of the Abernathys, or damages for its detention. Mr. Abernathy filed a counterclaim in two counts: I, for $492 for labor and services rendered; II, for $20 for water supplied. Count III of the petition was dismissed on motion. The judgment and decree of the trial court found the issues for plaintiff, Grace Anderson, and against defendants, the Abernathys, on Count I of the petition, as indicated in the first sentence of this and against plaintiff and for defendants on Count II of the petition; and for defendant Charles Abernathy and against plaintiff Grace Anderson for $492 and $20, respectively, on Counts I and II of the counterclaim. Grace Anderson filed a motion for new trial with respect to Count II of her petition, but did not appeal when it was overruled. Charles and Erie Abernathy filed a motion for new trial with respect to Count I of the petition, and appealed when it was overruled.
Before elaborating on the points of difference between the parties, it should be pointed out that the Abernathys undertook to explain and justify Mrs. Anderson's possession and use of Lot 5 on the basis of an alleged permissive use. Mr. Abernathy testified that their first discussion with reference to Lot 5 occurred after the building was completed and the construction of the drives was started (which was in the spring of 1958); that he told her then that if she wanted to make improvements on Lot 5 'she could use it until I deeded it or sold it or called for it'; that there was no discussion about reimbursement of Mrs. Anderson for her expenditures on Lot 5; that he merely told her that if she wanted to make the improvements on Lot 5 she could use it, and she accepted the use of Lot 5 on those conditions; and that the first time he knew Mrs. Anderson wanted to buy Lot 5 was when he received her letter of December 4, 1958.
The Abernathys contended that Mrs. Anderson contracted for only one lot, Lot 6, with a 50-foot frontage. Mrs. Anderson testified that her brother had advised her that in this business she needed a 100-foot frontage in order to 'make a circle around the place,' and that he 'laid out the plans' (on two 50-foot lots) for her; that he told her that with only one lot she would not have enough driveway and that one lot would be useless to her; that she 'had to have the other lot * * *' and 'had to have two lots to make the drive.' Mrs. Anderson testified that she relied upon his superior knowledge and that she was convinced by his explanation. She further testified that she did not have the money in July, 1957 to pay for both lots, and that her brother knew that she could not afford to pay for both of them; that this was the reason he told her to pay for the one, 'use her money on the building,' and pay for the other after a year.
The Abernathys claimed that it was Lorraine Wagner who at the July 1, 1957 meeting was originally interested in Lot 5; that Lorraine 'planned on takin" Lots 4 and 5 but before giving her answer had to consult with her fiance in St. Louis, and that thereafter the Abernathys 'held Lots 4 and 5 open' for 30 or 40 days. Both Lorraine Wagner and Mrs. Anderson denied that Lorraine had been interested in Lot 5.
The parties differed with respect to who made the decision as to where the building should be placed. Mrs. Anderson testified that 'He told me where he was going to put it,' and that she did not know that it was not 'over on Lot 5' until she had it surveyed. Mr. Abernathy testified that...
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