Austin & Bass Builders, Inc. v. Lewis
Decision Date | 05 June 1961 |
Docket Number | No. 23341,23341 |
Citation | 350 S.W.2d 133 |
Court | Missouri Court of Appeals |
Parties | AUSTIN & BASS BUILDERS, INC., Plaintiff-Respondent, v. Lawrence E. LEWIS and Ethel I. Lewis, Defendants-Appellants. |
Lucian Lane, W. M. Thurman, Kansas City, for appellants.
Terry & Welton, Jack C. Terry, Gaylord Wilkins, Kansas City, for respondent.
This is an action for damages for breach of an alleged real estate contract. Plaintiff had a verdict and judgment for $6,000. Defendants have appealed.
Count I of the petition alleged that defendants as sellers entered into a written contract to sell certain real estate to plaintiff; that plaintiff performed all its obligations and covenants provided in the written contract, including making payment of $1,000; that defendants failed and refused to perform the written contract in that they could not give good title and were obligated to repay the $1,000. Plaintiff prayed that defendants be directed to repay the $1,000. This Court was dismissed by plaintiff at the trial.
Count II alleged that on April 8, 1959, defendants were in possession and claimed to be the owners of a tract of land in Jackson County, Missouri, and offered to sell it to plaintiff for $58,587.21 and an agreement in writing was entered into between plaintiff and defendants; that plaintiff performed all of its obligations under said contract but that defendants breached the contract by refusing to deliver a warranty deed conveying the property free of incumbrances as provided in the contract. The petition then alleged that plaintiff had spent time and money in furtherance of the object of the contract, that it was forced to buy other land at an increased price and its reputation and standing as a builder and its credit were damaged and plaintiff lost time in its business and prayed damages in the sum of $50,000.
Count III was similar to Count II but added the allegation that defendants intentionally, maliciously and fraudulently borrowed money and put a mortgage of $40,000 on the land so that they could not give clear title and prayed for actual damages of $50,000 and punitive damages of $50,000. The Court refused to submit any issue of punitive damages.
The contract purports to have been entered into on April 8, 1959 between 'Lawrence E. Lewis and Ethel I. Lewis (Husband and Wife) the seller, and Austin and Bass Builders, Inc., the buyer.' It recites that 'the seller' has sold and agrees to convey the following described real, estate situated in Jackson County, Missouri: 'All of Lots 9 thru 28 and 30 thru 34 Woodridge Subdivision, Independence, Missouri', for the price of $31 per front foot, to be paid by the buyer as follows: $1,000 at the signing of the contract, the receipt of which 'is adknowledged by the seller and which is deposited with Lawrence E. Lewis and Ethel I. Lewis (Husband and Wife).' The balance to be paid in the following manner: The seller agreed to deliver to the buyer a warranty deed, 'properly executed and conveying said property free and clear from all liens and incumbrances whatsoever.'
The contract was signed only by Lawrence E. Lewis and Kenneth Bass as an individual. The plaintiff corporation was not in existence on the date of the contract. It is conceded that defendant Ethel I. Lewis did not sign the contract. It is also admitted that on January 12, 1960, Mrs. Lewis obtained a cashier's check for $1,000 payable to Austin & Bass, which was a repayment of the $1,000 paid by Kenneth Bass to Mr. Lewis on April 8, 1959, and that Austin & Bass Builders, Inc., endorsed, deposited and retained this $1,000.
Kenneth Bass testified that he was president of Austin & Bass Builders, Inc.; that he and Mr. Austin were thinking about organizing a corporation in the latter part of 1958 or early in 1959; that in March, 1959, they heard that Mr. Lewis had some land for sale and contracted him four or five times in March in Mr. Lewis' office; that Mrs. Lewis was present ninety percent of the time, but did not discuss the terms of the agreement. She was just listening. That during March they decided to incorporate and so advised Mr. and Mrs. Lewis. The certificate of incorporation was dated April 14, 1959, and the certificate of authority to commence business was dated April 29, 1959. Mr. Bass also testified that after signing the contract they got material ready for F.H.A.; that at Mr. Lewis' request, they asked the Queen City Engineering Company to make certain plans for street layout, sewer layout, etc.; that they got the Queen City Engineering Company to make plat plans for which they paid $155; that they employed an architect to draw house plans and paid him $154; that they had numerous meetings with Mr. Lewis with regard to the subdivision being approved by F.H.A.; that they submitted F.H.A. applications and specifications to the City Bond and Mortgage Company for approval; that they contacted numerous contractors; that they paid $450 to the City Bond and Mortgage Company for ten F.H.A. commitments.
In the latter part of July Mr. Lewis called Mr. Bass. In response to that call Mr. Bass went to the Lewis home. Mr. Lewis had a letter from the F.H.A. stating that certain additional requirements be met before the subdivision would be approved. Mr. Lewis then stated that he might have to put a mortgage on the property and, if so, could not give clear title to any part of it. Mr. Bass had plaintiff's attorney write a letter to Mr. Lewis and they had a further meeting talking about the contract, but could never get anywhere. He testified that at this meeting Mr. Lewis said he had put a mortgage on the property and the only way he could sell it would be to have cash for the whole thing, and Mrs. Lewis stated that they could not go through with the contract without all the money. Mr. Bass testified that he spent approximately two months' time from the middle of March to August 3 working on these matters which he valued at $10 per hour; that they found twelve lots at 42nd and River in Independence for which they paid $2,750 per lot compared to $2,140 at which the Lewis lots were priced.
Mr. Lawrence Austin, Secretary-treasurer of Austin & Bass Builders, Inc., testified that he attended two or three meetings where Mr. Bass and Mr. and Mrs. Lewis were present, but he was more or less an observer because he wasn't familiar with real estate; that he attended several conferences Mr. Bass had with the F.H.A. and City Bond and Mortgage officials and interviewed subcontractors. He said he spent two or three weeks' time on the project and that his time was worth $10 per hour; that about the last week of July plaintiff received a check from the Lewises for $1,000 but it was not signed; that when this check was returned to Mr. Lewis the latter said, 'My wife forgot to sign it.'
We will set forth other portions of the evidence as we take up the assignments of error made by defendants.
Defendants' first contention is that the trial court erred in not holding that, as a matter of law, the alleged contract 'was void for uncertainty and want of mutuality in that the payment of the purchase price was contingent on 'starting of improvements' and 'closing of loan on constructed houses,' and, since there was no obligation on plaintiff to start improvements or to build houses, the time of payment could not be ascertained and there was no obligation to pay.' The evidence stands undisputed that defendants accepted the $1,000 as a down payment under the contract. The evidence also shows that defendants went over the plat plans submitted by plaintiff and approved the same. Together with plaintiff they made F.H.A. applications. They appeared before the Planning and Zoning Commission with plaintiff. And during the time those things were being done there was neither hint nor suggestion from defendants that they did not fully understand the terms and conditions of the contract. Our Supreme Court has held that mutuality of obligation is not necessary if there is consideration other than a promise. Schonwald v. F. Burkart Mfg. Co., 356 Mo. 435, 202 S.W.2d 7; Schmidt v. Morival Farms, Mo.Sup., 240 S.W.2d 952, 957. And even though the contract was in its inception unilateral, part performance rendered it bilateral. Nelson v. Massman Const. Co., 231 Mo.App. 1, 91 S.W.2d 623, 627 (citing cases). We agree with the trial court's holding that the contract was not void for want of mutuality. And, since defendants claim that the contract is void for uncertainty is based upon the premise of lack of mutuality, we rule the contention against defendants.
Defendants next contend that the court erred in refusing to hold, as a matter of law, that no action could be maintained on the alleged contract for the reason that plaintiff's action is based entirely upon an alleged real estate contract which shows upon its face that the real estate involved was owned by defendants as an estate by the entirety, and that 'no contract enforceable under the Statute of Frauds resulted unless signed by both.'
This is not a suit for specific performance, but an action for damages. An agreement to convey, though invalid to affect the title to real estate in whole or in part, may yet be valid between the parties as a basis for the recovery of damages by reason of its breach. The general rule of law is that the agency of the husband for the wife may be shown by direct evidence or by such facts and circumstances as will authorize a reasonable and logical inference that he was empowered to act for her or that she ratified his unauthorized acts. 41 C.J.S. Husband & Wife Sec. 70, p. 548. On its face...
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