Ash Grove Lime & Portland Cement Co. v. White

• Court: Missouri Supreme Court
• Writing for the Court: PER CURIAM
• Citation: Ash Grove Lime & Portland Cement Co. v. White, 238 S.W.2d 368, 361 Mo. 1111 (Mo. 1951)
• Decision Date: 09 April 1951
• Docket Number: No. 1,No. 42168,42168,1
• Parties: ASH GROVE LIME & PORTLAND CEMENT Co. v. WHITE et al

Page 368

238 S.W.2d 368

361 Mo. 1111

ASH GROVE LIME & PORTLAND CEMENT Co. v. WHITE et al.

No. 42168.

Supreme Court of Missouri, Division No. 1.

April 9, 1951.

Harold T. Lincoln, Springfield, Paul R. Stinson, Dick H. Woods, Kansas City, for appellant, Ash Grove Lime & Portland Cement Co.

Neale, Newman, Bradshaw, Freeman & Neale, Ransom A. Ellis, Jr., and Flavius B. Freeman, Springfield, for respondents Otis R. White & Lelian White.

VAN OSDOL, Commissioner.

Action by plaintiff, Ash Grove Lime and Portland Cement Company, a corporation, for specific performance of a contract for the sale of real property, a tract of 258 acres of land near Galloway. The trial court denied specific performance, and ordered the dismissal of the action on the stated grounds 'there never was a binding contract to sell between the plaintiff and defendants, and that if there were, it would be inequitable to compel defendants to comply with it.' Plaintiff has appealed.

In their answers defendants had asked affirmative relief. Among other allegations, defendants had stated the plaintiff's agent, in inducing defendants, husband and wife, to enter into the contract to sell their property, had made statements with the intent to deceive defendants, and defendants were deceived and tricked by the agent's false representations as to the true identity of the purchaser. Defendants prayed the court to adjudge the contract to be void and of no effect; or in the alternative (should the court find the contract to be valid) defendants prayed the court to adjudge the specific performance of the contract would be inequitable, and to deny the relief sought by plaintiff.

Plaintiff-appellant, Ash Grove Lime and Portland Cement Company, operates quarries and kilns and manufactures lime and cement on a large tract of land lying east of the land of defendants-respondents. The western line of plaintiff's land is about 135 feet east and across a highway from the eastern boundary of defendants' property. Defendants' improved property of 260 acres is operated as a dairy farm. The improvements consist of a new dwelling costing $30,000 to $35,000, an old dwelling house, three barns and a milk house. Defendants occupy the new residence as their home. Plaintiff's present operation of its quarries and kilns is about one-half mile east of the improvements located on and near the southeast corner of defendants' 260-acre farm.

Plaintiff, being desirous of acquiring 'additional rock reserves,' requested Carl Morris, its general superintendent at Galloway, to 'contact' some real-estate firm at Springfield and to ascertain if certain tracts of land, including defendants' property, could be bought. Morris contacted Phonso Fortner, a salesman for O. L. Burger who was doing real-estate business as O. L. Burger Company at Springfield. Morris informed Fortner that 'he only wanted one man to know about it.' However, Fortner felt he was obligated to tell Burger, and Burger assigned the task of interviewing defendants to his salesman, Paul Miller, who was well acquainted with defendants. They had belonged to the same church for five or six years. Subsequently, Burger, Miller and Fortner went to Kansas City to confer with plaintiff's executive vice-president. There Burger was authorized to acquire defendants' property for $60,000, but plaintiff's instructions were 'not to disclose the identity of Ash Grove.'

Pursuant to Miller's negotiations, defendants signed the contract herein involved, dated June 15, 1949, stipulating the sale of their farm, except two acres in the southeast corner thereof on which their new house is located, to O. L. Burger, agent, for $60,000.

The trial chancellor found the contract when signed by defendants was a mere offer to sell and the offer was revoked before acceptance by plaintiff. And, although the chancellor was of the opinion plaintiff's agent made no misrepresentation of fact which would justify the rescission of the contract (assuming the contract was otherwise binding), yet plaintiff's agent 'did create in the minds of defendants the impression that the buyer was an individual who wanted the land for stock pasture, a use acceptable to them, whereas a quarry within a few hundred feet would be highly objectionable. * * * The equities of the transaction are not in favor of the plaintiff.'

In this case, an equitable action, the appellate court determines the cause de novo, weighing the evidence introduced upon the factual issues; and, although the appellate court will usually defer to the findings of the trial chancellor where there is conflicting verbal testimony involving the judging of the credibility of the witnesses who appeared before him, the appellate court cannot escape its responsibility and duty of weighing the evidence and reaching its own conclusions. Edinger v. Kratzer, Mo.Sup., 175 S.W.2d 807; Cobble v. Garrison, Mo.Sup., 219 S.W.2d 393.

Having examined the record, we have the view the trial court's judgment dismissing plaintiff's action for specific performance was justified and a correct one; but we differ from the learned trial chancellor's view that the representations of plaintiff's agent in inducing defendants to sign the contract selling their property would not, in this equitable action, justify a rescission of the contract. It is our opinion the trial court's judgment should be modified to include the relief of cancellation of the contract, for which relief defendants had asked, in effect, by one of the alternative prayers of their answer. Having arrived at this conclusion, it is unnecessary for us to examine appellant's contention the trial chancellor was wrong in finding the parties had never entered into a contract otherwise binding.

In showing why we have come to the conclusion the contract should be canceled, we will review evidence of the statements made by plaintiff's agent to defendants in inducing defendants to sign the contract to sell their property.

Defendants introduced evidence tending to show Paul Miller called at defendants' home--asked them if they would sell their place. Miller told them he had 'a man' who was interested in buying it. Defendants said they would rather sell the 'back eighty' and keep the rest of their farm, and Miller said he had no calls for unimproved land. Miller did not tell defendants who the prospect was. Miller said he had told 'the man that we (defendants) had built a nice home on it, and he said the man said, 'Well, I can use it--I can use the new house.'' Defendants priced the farm, without the new house, at $60,000, or with the new house at $100,000. Miller thought the price was high, and defendants suggested the property was close to Springfield and there was possibility a highway (Highway 65) would be relocated near the property, but Miller said, 'Oh, I can tell you definitely that it is going out Campbell Street Road.' ('Campbell Street Road' is a considerable distance west of defendants' property. Within 'going on five years' the relocation of Highway 65 'out Campbell Street Road' has not been contemplated by the State Highway Department, according to the testimony of the Department's division engineer at Springfield. Highway 65 is now to be relocated, by reasonably definite plans, across the northeast corner of defendants' farm.) Miller wanted to know "about this lime company on the east of you here, doesn't that bother you.' And I (defendant husband) said, 'Well, not to speak of,' I said, 'it shakes our house when they blast, and some noise when the wind is from that direction, but,' I said, 'they are moving away (working to the eastward) from us now and it isn't too bad.'' This first interview was some time in late May or early June 1949.

On the second interview, June 15th, Miller again came to defendants' home. He brought a contract. The first question was, 'who had bought the place.' But Miller said, 'I can't tell you, I promised the man I wouldn't tell.' Defendants asked, 'why,' and he just answered, 'I don't know.' Miller said the man had argued about the price being too high, and wanted to offer $58,000, but Miller said he had argued with the man who had finally agreed to pay the $60,000. Defendants reminded Miller that no prospective purchaser had inspected the property, and Miller said, 'Well, the man knows the place.' Defendants asked Miller what the purchaser intended to use the land for and would the purchaser be interested in buying defendants' dairy herd, but Miller said, 'No * * * I think he plans running beef cattle on it.' Defendants expressed the desire to keep their cows until the next spring and asked if they might 'lease the place,' and Miller replied, 'the man naturally expects to make a return on his investment.'

After defendants had signed the contract, Miller told defendant husband that plaintiff was the purchaser, but Miller said, 'you must not tell who it is * * * you don't have a thing to worry about it, they are only buying for protection.' Defendant wife did not learn the identity of the purchaser until the following Sunday, and the next day, Monday, defendants undertook to repudiate the transaction.

Miller, plaintiff's agent and witness for plaintiff, testified he had told defendants, 'I couldn't identify the purchaser.' He made that remark 'because they asked me. * * * I referred to the purchaser as 'an old gentleman' at one time. I might have said 'a man' at another time. * * * But I didn't think that had anything to do with the selling or buying of the property.' Upon being asked if he remembered that defendant husband had inquired 'what the man was going to do with the place,' Miller answered, 'He did ask me and I told him he would probably run cattle on it * * * possibly might run hogs on it, and he wanted the old improvement because he wanted a tenant on it.' He did not categorically deny, but said he could not remember saying anything concerning there being no calls for unimproved land, nor did he remember def...