Beck v. Strong

• Decision Date: 28 August 1978
• Docket Number: No. KCD,KCD
• Citation: 572 S.W.2d 484
• Parties: Marinda M. BECK and Donald R. Beck, Respondents, v. James R. STRONG and Frances Sue Strong, Appellants. 29286.
• Court: Missouri Court of Appeals

Page 484

572 S.W.2d 484

Marinda M. BECK and Donald R. Beck, Respondents, v. James R. STRONG and Frances Sue Strong, Appellants.

No. KCD 29286.

Missouri Court of Appeals, Kansas City District.

Aug. 28, 1978.

Motion for Rehearing Denied Oct. 10, 1978.

James W. Gallaher, Jefferson City (Barry, Neff & Gallaher, Jefferson City, of counsel), for appellants.

Robert L. Hyder, Jefferson City (Hyder & McHenry, Jefferson City, of counsel), for respondents.

Before WELBORN, Special Judge, Presiding, HIGGINS, Special Judge, and PRITCHARD, J.

PRITCHARD, Judge.

The issues are whether respondents are entitled to a decree of quiet title, and damages, as was the judgment of the trial court, or whether appellants are entitled to a decree of specific performance of a contract for deed of April 19, 1960, and to a decree of continued validity of a lease, with alternative options to purchase or to continue the lease for an additional 89 years, which lease was entered into September 10, 1963.

The properties involved lie along Industrial Drive and (apparently) along Jaycee Drive in the western part of Jefferson City, Missouri. The following plat, plaintiffs' Exhibit 2, which was in evidence, may be helpful in the understanding of the area, and the transactions involved:

The contract for deed, entered into April 19, 1960, by Arthur H. Beck (who died May, 1966) and his wife, Marinda, with appellants covered, by courses and distances description, the western portion of the property, in which Tract 1 is denominated a part, for a price of $22,500.00, payable 5 years after date, with 6% Interest per annum, payable $112.50 per month, with the whole of the principal amount being due and payable at the end of the 5 year period, at which time the sellers were to execute and deliver a warranty deed. The contract called for an option to lease the entire tract for 99 years if exercised within one year from the contract date, but that option was never exercised. The contract was never consummated within the 5 year period, appellant, James R. Strong, acknowledging that he had never paid the purchase price of $22,500.00. He had, however, as admitted by respondents, continued to pay the $112.50 monthly interest, up to shortly before trial, which began on October 8, 1975.

These further facts, as to Tract 1, are in evidence: The Strongs entered the property, and constructed, at their expense, a building complex, which at trial housed Brady's Glass and Paint, The Drapery Place, Missouri Highway Commission Project Office, and the University of Missouri Extension Service. In these matters, Mr. Beck and Strong were engaged in some kind of very loose joint enterprise for the development of the area, which, according to Strong, was his idea "of bringing a lot of contractors into one center, and this was my purpose." Upon Tract 1, these deeds were executed: On September 11, 1964, Arthur H. and Marinda Beck executed a deed to Leonard Bauer and wife to about 60 feet fronting on Industrial Drive, and later, on March 15, 1965, executed a roadway deed to the same parties. The consideration, about $6,300.00 for these tracts, was paid to the Strongs, and Marinda, as to this transaction, testified, "Q. Why would you have paid Jim Stron $6,300 if you felt he owed you $22,500, why wouldn't you have credited that amount to what he owed you? A. Now, coming back to oral talk, this amount of money was supposed to be in this building, so Jim could put up that building. We were helping him out so he could get started." Also, on March 15, 1965, the Becks conveyed to William Cure 109.15 feet on Industrial Drive, Strong receiving the proceeds. (On February 7, 1966, the Becks gave Cure a correction deed as to the description of the property.) On the same date, the Becks conveyed the south triangular portion of Tract 1 to James O. Hammen and wife for a stone mason business, Strong receiving the sale proceeds for both these tracts. Then, on February 7, 1966, the Becks conveyed a tract on Industrial Drive to Eugene L. Schenewerk and wife, Strong again receiving the proceeds of the sale, this being after the contract was due on April 20, 1965. Then, on August 22, 1966, Marinda, after Arthur's death, signed the deed to Capital City Industrial Development Corporation (for the Interco building) for the area between the Hammen property and that of Bauer, Cure, Schenewerk and Strong. This deed recites that it is subject to easements of record "and rights granted to James R. and Sue Strong by an instrument dated April 19, 1960." From the sale of all these properties, the Strongs received all of the purchase money totalling $36,800.00, and the Becks never did make any demand for any of it. Strong arranged for the sales of all the properties, and paid income tax on the amounts received by him.

A sewer district was formed on Tracts 1 and 2, and on October 1, 1970, Marinda directly paid $3,900.00 assessment on it, then accepted, on advice of counsel, Strong's note for that amount, payable with interest at $41.60 per month for 10 years. He has paid, and she has received, the monthly payments since November, 1970. Additionally, the Strongs have paid all of the taxes, insurance (and interest on loans) on all of the property of Tracts 1 and 2. Marinda acknowledged the receipt of the interest on the contract price, and that she deposited the funds and used them for household expenses.

According to Strong, in August, 1966, after Arthur died in May, he went to Marinda and told her he had finally settled the deal with the Jefferson City Development Corporation and that he thought it would be a good time to pay her off on the property. "And, of course, it was about three months after Mr. Beck had died, and Mrs. Beck was still a little upset, a little emotional, and she asked that it not be done at this time. She said that Mr. Beck had thought very highly of me, and that she knew that he would want to leave the money in there, and that she would just prefer it this way, and my response was, 'Well, when the Gibson tract (Tract 2) comes up, then, we will talk about it then if it is all right.' And we visited, and that was the extent of that." He formally advised her that he was ready to pay her the $22,500, immediately after he had received $20,500 from the Jefferson City Development Corporation for land which was owned by the Becks. Marinda's version of this meeting was that she talked with Strong shortly after Mr. Beck's death, and he expressed his bereavement, "And he wanted to know if I needed any money, and things like that, but we didn't talk about settling up anything and, besides, I wasn't in the physical condition to make any commitment."

Donald R. Beck, son of Arthur and Marinda, being a party to the lease upon Tract 2, met with Strong a year after Arthur's death. There was had a very informal conversation in which Donald mentioned that "we had no contract on this property, and Jim said we ought to do something about it, and I agreed we ought to do something about it. I received no response." In the summer of 1969, Donald again had a conversation with Strong, saying, " 'Jim, you do not have a lease on some of the property which you are presently occupying.' " Strong disagreed with him, and there was a discussion of some length, and Donald said, "that there were options involved in these contracts which hadn't been taken up, and they might be confusing, and that I definitely felt we ought to sit down and get things straightened out. And he told me he liked things just the way they were, and proceeded to walk right out of the office." The next contact was by telephone and a request was made for a meeting that week, for which there was no response. Then, upon counsel's request, there was a meeting in September, 1974, but no resolution of the matters then occurred.

Contract for Deed, Tract 1

As noted, it is admitted by appellants that they did not, by notice, exercise their right to purchase under the contract for deed within the five year period, which expired about April 20, 1965. Time being of the essence is not expressly specified in the contract. 91 C.J.S. Vendor & Purchaser § 104 g., p. 1006; Branch v. Lee, 159 S.W.2d 677, 680(1-4) (Mo.1942). But even if it were, it may be waived. Prior to the time for performance was due, Arthur and Marinda deeded their legal title to purchasers from the Strongs of portions of the property covered by the contract on four occasions: September 11, 1964, to the Bauers; a roadway deed to these same parties on March 15, 1965, coupled with a correction deed on February 7, 1966; on March 15, 1965, to the Hammens; and on February 7, 1966, a deed to the Schenewerks. Upon execution of the contract, the Strongs entered possession and made valuable building improvements upon the property, occupied by Brady's Glass and Paint, The Drapery Place, Missouri Highway Commission, and the University of Missouri Extension Service. Not only did the Becks execute these deeds, but they permitted the Strongs to retain the sole proceeds upon all of them, and the Strongs collected the rentals on the buildings erected by them. Then, after Mr. Beck's death, Marinda executed to the Capital City Industrial Development Corporation, a deed on August 22, 1966, to the remaining undeveloped area, again permitting the Strongs to retain the $20,500 purchase price. The Strongs, in the interim, and at all times, paid the taxes, insurance and development costs on all the property contained in the contract for deed, having only the equitable title thereto. Not only is the waiver here that of permitting the Strongs to expend money in improving Tract 1, Rogers v. Gruber, 351 Mo. 1033, 174 S.W.2d 830, 831(1, 2) (1943), but importantly, the Becks accepted the monthly interest payments on the purchase price, thereby treating it as due them, even up to shortly before trial. In this situation, it was incumbent upon the Becks to give the Strongs a notice of insistence upon the performance...