Beck v. Hoel-Steffen Const. Co., 11583.

• Decision Date: 15 September 1980
• Docket Number: No. 11583.,11583.
• Citation: 605 S.W.2d 810
• Parties: David W. BECK and Wilma J. Beck, Plaintiffs-Respondents, v. HOEL-STEFFEN CONSTRUCTION COMPANY, a corporation, Defendant-Appellant.
• Court: Missouri Court of Appeals

605 S.W.2d 810

David W. BECK and Wilma J. Beck, Plaintiffs-Respondents, v. HOEL-STEFFEN CONSTRUCTION COMPANY, a corporation, Defendant-Appellant.

No. 11583.

Missouri Court of Appeals, Southern District, Division One.

September 15, 1980.

Joseph A. Bohrer, Yates, Mauck & Robinett, Inc., Springfield, for defendant-appellant.

Joe W. Collins, Stockton, for plaintiffs-respondents.

FLANIGAN, Chief Judge.

Plaintiffs, David W. Beck and Wilma J. Beck, his wife, as purchasers, entered into a "sale contract" with defendant Hoel-Steffen Construction Company, a Missouri corporation, as seller. The contract involved the purchase of real estate in Cedar County for a price of $57,500. Upon defendant's refusal to convey the land, plaintiffs brought this action for specific performance. The trial court found for plaintiffs and granted the requested relief. Defendant appeals.

Defendant contends that the trial court erred in decreeing specific performance for the reason that the contract "plainly stated that a sale was subject to approval of defendant and defendant admittedly disapproved the sale." This court holds that the defendant did approve the sale and that the trial court properly decreed specific performance.

Plaintiffs lived in Cedar County and defendant had its headquarters in St. Louis. After some preliminary negotiations defendant's employee, Mrs. Lychner, prepared the "sale contract," using a printed form which, according to defendant, is "apparently used in the St. Louis area by real estate agencies," and contains "numerous provisions not applicable to the transaction between the parties here." No real estate agent was involved in the instant transaction.

Robert Hoel, president of defendant, signed the sale contract on behalf of defendant on April 2, 1977. Before so doing, Hoel struck out several of the printed provisions by "Xing" them out with a typewriter. Hoel put his initials alongside each of the stricken portions. The contract, having been executed by defendant, was taken later that day by an employee of defendant to Cedar County and presented to the plaintiffs. The plaintiffs, who made no changes in the contract, initialed the stricken portions and signed it.

The agreement called for an earnest deposit of $5,000 with the balance of $52,500 to be paid on closing. Upon signing the agreement plaintiffs made the $5,000 payment to defendant's employee.

Material portions of the agreement are as follows: (The italicized and underlined portions are typewritten or hand written; the other portions are printed.)

SALE CONTRACT

Cedar County Missouri

April 2, 1977

Received from David W. Beck and Wilma J. Beck, his wife, (with survivorship rights), hereinafter called purchaser, the sum of Five Thousand and no/100 Dollars ($5,000.00) as earnest deposit and as part of the cash consideration for the purchase of the following described property situated in the County of Cedar, Missouri, known or described as:

Description

... which property is this day agreed to be sold to purchaser subject to approval of seller by noon of April 4, 1977, and not otherwise (and if not so approved earnest deposit shall be returned to purchaser) for the total sale price of Fifty Seven Thousand Five Hundred and no/100 Dollars ($57,500.00) on the following terms:

Earnest deposit made as per this receipt $ 5,000.00 Additional earnest deposit to be made by purchaser on NONE Cash to be paid on closing date of sale as hereinafter fixed (subject to adjustments as herein provided) 52,500.00 NONE Agent By NONE Approved Not Applicable , 1977 Approved on date first above written: I/we agree to pay Not Applicable _________________________________________ the Commission as provided on the reverse is authorized to order title examined side hereof, to be a lien on said /s/ David W. Beck property. Purchaser Hoel-Steffen Construction Company by /s/ Wilma J. Beck Seller Purchaser /s/ Robert F. Hoel Address: Rt # 2 Seller Stockton, Mo. Address: St. Louis, Mo.

A typewritten "special agreement," included in the sale contract, provided that a crop of winter wheat could be harvested by defendant's tenant "after the closing date of this sale, but before June 30, 1977."

On April 3, 1977, the plaintiffs went to St. Louis. On that day plaintiffs and defendant, the latter acting through its president, Robert Hoel, signed a separate document stating that the parties "do amend the sales contract by and between David W. Beck and Wilma J. Beck, his wife, and the Hoel-Steffen Construction Company to allow the existing wheat crop of this date to be harvested after June 30, 1977, if weather conditions prohibits (sic) the harvest prior to June 30, 1977."

On the morning of April 4, 1977, defendant sent plaintiffs a mailgram which they received before noon. The mailgram contained this message:

"In accordance with the sales contract, dated April 2, 1977, concerning certain property in Stockton, Missouri, we are exercising the clause to disapprove the sales contract by the seller prior to noon on April 4, 1977. The sale is, hereby recinded (sic) and disapproved by the seller in accordance with said contract clause and the $5,000 earnest deposit is hereby returned payable to David W. Beck and Wilma J. Beck, his wife, by cashiers check from Sac River Valley Bank delivered to Joe Collins, their attorney. Hoel-Steffens Construction Company, Robert F. Hoel, President, 4547 Green Park Rd., St. Louis, Missouri 63123."

Plaintiffs refused to accept the $5,000 refund and this action ensued.

Where an agreement is susceptible of two constructions, one of which renders the contract invalid and the other sustains its validity, the latter construction is preferred. Perbal v. Dazor Manufacturing Corp., 436 S.W.2d 677, 68927 (Mo.1968). "A `contract of doubtful meaning will be given a construction which will make it fair and reasonable between the parties and will not give one party an unfair advantage of another.' Veatch v. Black, 363 Mo. 190, 250 S.W.2d 501, 5072, 3." Hammond v. Wheeler, 347 S.W.2d 884, 8956 (Mo.1961). A contract must be construed in its entirety, giving effect to every part thereof, if that be fairly and reasonably possible, and in construing a contract of doubtful meaning, the court properly may consider the subject matter of the contract, the facts and circumstances attending execution thereof, and the apparent purpose which the parties were undertaking to accomplish. McIntyre v. McIntyre, 377 S.W.2d 421, 4254, 5 (Mo.1964). The rule that an ambiguous contract should be construed strongly against the party who drew it is one of several subsidiary construction aids and may be utilized when other means of construction fail. McIntyre, supra, at p. 426.

Defendant bases its position on this language of the sale contract: "... which property is this day agreed to be sold to purchaser subject to approval of seller by noon of April 4, 1977, and not otherwise (and if not so approved earnest deposit shall be returned to purchaser) ..." This opinion will refer to the foregoing language as the "approval clause."

It is defendant's contention that the sale contract, although signed by the plaintiffs and the defendant, had no vitality unless and until it was approved by defendant, under the terms of the approval clause, by noon of April 4. Defendant asserts that such approval was not accorded and that, indeed, defendant's express disapproval was communicated to the plaintiffs.

Above the line in the sale contract calling for the signature of the seller there is the printed word "approved," followed by a blank which obviously calls for the insertion of a date because the blank is as follows: "_____, 19___." Inserted in the blank are the typewritten words "not applicable." This line of the sale contract will be called the "later clause."

If the approval clause had been printed in full (and it was except for the date) the typewritten portion of the later clause would serve to eliminate the approval clause under the familiar principle that typewritten portions prevail over printed...