Best v. Culhane, 46472

• Decision Date: 28 August 1984
• Docket Number: No. 46472,46472
• Citation: 677 S.W.2d 390
• Parties: Earl BEST, Sr. and Bonnie Best, Appellants, v. John J. CULHANE and Phyllis Culhane, Respondents.
• Court: Missouri Court of Appeals

Page 390

677 S.W.2d 390

Earl BEST, Sr. and Bonnie Best, Appellants, v. John J. CULHANE and Phyllis Culhane, Respondents.

No. 46472.

Missouri Court of Appeals,

Eastern District,

Division One.

Aug. 28, 1984.

James G. Rittenbaum, Louisiana, for appellants.

William C. McIlroy, Bowling Green, J. Rockne Calhoun, Louisiana, for respondents.

KELLY, P. Judge.

Dolan Company Sales, Inc., instituted this interpleader action seeking a determination as to which of the defendants, John J. Culhane and Phyllis S. Culhane, husband and wife, or Earl Best, Sr. and Bonnie Best, husband and wife, were entitled to 100 shares of Union Electric stock deposited with it as escrow agent pursuant to a Sales Contract on a home and 150 acre farm in Pike County, Missouri. The Bests filed an Answer to the Interpleader action admitting that they and the Culhane's had entered into a Sales Contract for the sale of the Pike County acreage, but denying the other allegations in said Petition for Interpleader. The Bests also filed a "counterclaim" against the Culhanes seeking specific performance of the Sales Contract for the purchase of the Pike County acreage.

The Culhanes filed a First Amended Answer to the Petition in Interpleader denying that they had entered into the Sales Contract with the Bests for the purchase of the Pike County Tract, admitting, however, that they had deposited the stock with Dolan, and that a dispute had arisen between the parties to the Sales Contract, and that they had demanded return of the shares of stock. They prayed for an order requiring Dolan to return the stock to them.

The Culhanes also filed an Answer to the Bests' "counterclaim" admitting that they had deposited the stock with Dolan, but denying all of the other allegations in Bests' "counterclaim" for specific performance. They further alleged that if the court should find a contract between them and the Bests, that by seeking damages in Count II of their "counterclaim" ¹ the Bests had waived any rights to specific performance of the contract, that the Bests, as an inducement to cause them to enter into the contract, had misrepresented to them that 40 acres of the farm was tillable and 70 acres was for pasture, when in fact, this was not so and the Bests knew this and made said representations with the intent to deceive and defraud them and that to enforce specific performance of the contract under these circumstances would be inequitable, unfair, and unjust.

After a bench trial the court found: that the Bests and the Culhanes entered into a valid contract for the sale of real estate on February 4, 1981; that the Culhanes executed a waiver of financing contingency on March 5, 1981, which constituted a ratification of the agreement of February 4, 1981, and waiver of any time objections; that on February 4, 1981, the Culhanes deposited with Dolan, as earnest money, 100 shares of Union Electric Stock; that on February 4, 1981, the Bests were seized of an indefeasible estate in fee in the real estate which was the subject of the contract; that the real estate was represented to contain 40 acres tillable and 70 acres of pasture and that Earl Best, Sr. furnished said figures to William Babbitt, the Bests' representative, whereas the real estate actually contained 18 acres tillable and 29 acres pasture; that the difference between the tillable acres and pasture acres as represented and as they actually exist is a substantial variance; that the Culhanes were not aware of the acreage difference until they received a letter from Charlie Wright on March 9, 1981, after the ratification of March 5, 1981; that the Culhanes attempted to and did verify this difference after March 9, 1981; that there was no credible evidence presented by the Bests that there was substantially more tillable or pasture land; that the Culhanes had a right, under the circumstances, to void the contract between themselves and the Bests; that the Culhanes were relying on income from the tillable acres and pasture acres, as represented by the Bests, to help pay for the real estate which was the subject of the contract of February 4, 1981; that the Bests did not notify the Culhanes of the intention to close the sale until after April 30, 1981, and were not fully ready to sell the property on May 4, 1981, as the abstract to the property was not extended and the delay in notifying the Culhanes of their intention to close was unreasonable; that the contract between the Bests and the Culhanes is not capable of being performed because there is not the 40 tillable acres and the 70 acres pasture as represented. The Bests' petition for specific performance was denied and dismissed and Dolan was ordered to return the 100 shares of Union Electric Company stock to the Culhanes.

Our review of this judgment is governed by Supreme Court Rule 73.01 and Murphy v. Carron, 536 S.W.2d 30, 32[1, 2] (Mo. banc 1976) and its progeny. We must affirm the trial court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Furthermore, when the trial court judgment is challenged on the ground that it is "against the weight of the evidence" the reviewing court should exercise the power to set aside the judgment with caution and with a firm belief that the judgment is wrong. Conflicts in evidence are for the trial court to resolve and the facts must be taken in accordance with the result reached by the trial court. The trial court, when sitting as the trier of fact, may believe all, part or none of the testimony of any witness. Trenton Trust Company v. Western Surety Company, 599 S.W.2d 481, 483 (Mo.1980).

Mr. and Mrs. Earl Best owned and lived on a 150 acre farm in Pike County, Missouri. In August, 1980, they listed the property with Dolan, a corporate real estate broker with sales offices in Pike County. The Bests were asking $182,000.00 for the property, including a ten room house, out-buildings, ponds and some open fields useful for growing crops and pasture. In the listing agreement prepared by Dolan the property contained 40 acres of tillable land, 70 acres of pasture, suitable for growing hay and the grazing by cows, and 30 acres of wooded land. These figures were furnished by Mr. Best to Mr. Babbitt of Dolan when preparing the listing contract. In fact, only 18 acres of the tract was tillable and 29 acres was suitable for pasture. The listing agreement, including the erroneous figures, was shown to prospective purchasers and thus misrepresented the land uses.

The Culhanes entered into a Sales Contract for the purchase of the farm and the improvements therein on February 4, 1981, for a purchase price of $155,000.00. Mrs. Culhane had first viewed the property and the listing contract in August, 1980, while on a house tour for Dolan sales representatives, at which time she was a licensed real estate representative with Dolan.

According to the Sales Contract the Culhanes were to deposit with Dolan an "earnest deposit" of 100 shares of Union Electric stock valued at approximately $1,100.00. The Sales Contract also provided for contingency financing, but this provision was later waived by the parties to the contract in a separate writing dated March 5, 1981. The sale was to be closed on May 4, 1981.

Sometime around February 27, 1981, the Culhanes began to question the representations concerning the tillable and pasture acreage. Because they expected to use income from farming the land to help pay for the purchase of the farm, the acreage available for farming was an important factor in their decision to purchase the farm. In mid-March of 1981, the district conservationist for the United States Department of Agriculture, Soil Conservation Service, Charles Wright, wrote a letter to the Culhanes informing them that the farm contained only 18 acres of tillable and 29 acres of pasture. Frank Johnson, an adjoining land owner who had farmed the Best tract, confirmed the fact that the tillable acreage was 18 acres. At this point the Culhanes attempted to void the Sales Contract and on March 28, 1981, served notice on the Bests through Dolan that they were voiding the Sales Contract due to these acreage variances. Dolan cancelled the extension of the Best abstract on March 28, 1981. On April 12, 1981, Mrs. Culhane requested that Dolan return the stock it was holding as...