Cannon v. Bingman
| Decision Date | 28 February 1962 |
| Docket Number | No. 7989,7989 |
| Citation | 354 S.W.2d 894 |
| Parties | James CANNON et ux., Plaintiffs-Appellants, v. O. J. BINGMAN et ux., Defendants-Respondents. |
| Court | Missouri Court of Appeals |
Robert J. Quigley, Harry H. Kay, Eldon, for appellants.
Theo. G. Scott, Buffalo, Gordon R. Boyer, Lamar, for respondents.
This is an action in equity for rescission of a real estate contract involving the 'Red Diamond Resort' on the Lake of the Ozarks, in Camden County, Missouri, for the recovery of partial payments made on the stipulated purchase price and to have the judgment declared a special lien on the real estate which was the subject matter of the contract. The action is by the purchasers, James Cannon and Jewel Cannon, his wife, and against the vendors, O. J. Bingman and Winnie B. Bingman, his wife. The trial court found for defendants and against plaintiffs and dismissed plaintiffs' first amended petition, and for plaintiffs on defendants' counterclaim which was by the court dismissed. Plaintiffs have perfected their appeal.
The cause was originally filed May 18, 1959, and, on May 12, 1960, appellants filed their first amended petition on which the issues were made and the cause tried.
In this petition plaintiffs alleged that they had been induced to enter into a written contract with defendants for the purchase of the resort involved through fraudulent representations as to where the true boundary lines of the real estate involved were, by defendants' agent. They seek to have the contract rescinded and for judgment for the amount of money paid under the terms of the contract and that such judgment be declared a special lien against the real estate now standing in the names of defendants.
Defendants' answer to plaintiffs' first amended petition admitted that they had listed the real estate involved for sale with Frank H. Meissner, a real estate broker, but denied all other allegations. They admit the purchase of the real property sold at foreclosure sale and that they now have title to the same.
They plead laches and waiver on the part of appellants in failing to elect to rescind the contract when they discovered that fraud had been practiced upon them.
Briefly stated the evidence is: That respondents, owners of the Red Diamond Resort, listed said resort with the Ozark Realty Company for sale. Frank H. Meissner representative of said company, showed the resort to appellants, prospective purchasers, on May 17, 1958. It consisted of 5 cabins, a house, 9 boats, 4 motors, a dock and equipment shed.
In negotiating the sale of this property to appellants Meissner took them out on the property and pointed out the boundary lines thereof. Bingman was on the property at the time but took no part in the negotiation.
Appellants' evidence is that Meissner represented to them that the north boundary line of the property was a fence which runs in a northeasterly direction.
Appellants' exhibit I is a photograph showing a portion of the resort as seen from the northeast corner and the fence, pointed out to appellants, as the north boundary line. Just south of the fence and alongside thereof is a gravel road. At the northeast corner of the property the fence makes a jog or circles around a small tract of land 25 or 30 feet wide north of the gravel road. Appellants testified that Meissner pointed out to them that this tract was used as a parking lot and was a part of, and went with, the Red Diamond Resort. The evidence is that this gravel road was 8 or 10 feet wide and that the ground north of it was higher than the road and below was lower; that this road continues on to the northeast and into the property owned by Yorks and used by them as an outlet.
Appellants' exhibit II is a photograph showing the other end of the resort from that shown in exhibit I. Meissner told appellants that the boat house and walkway, shown in this exhibit, went with the resort. The testimony is that the present gravel road, shown in the photographs in exhibits offered by appellants, is the only gravel road on the property. James Cannon testified:
'
Appellants' evidence is that at the time of the negotiation of the sales contract they had no actual knowledge as to where the boundary lines of the property were but relied strictly upon Meissner's representations. Cannot testified that as they walked down the gravel road toward the lake, Meissner pointed out the parking lot just north of the road, told them the trees along the north side of this road could be cut down in order to enlarge the parking facilities.
The purchase contract in issue was entered into in the office of Ozark Realty Company May 20, 1958. Immediately after its signing, and before any papers were executed conveying the property to appellants, Meissner promised appellants to have a survey made showing the boundary lines to the property. The sales contract, in substance, provided that respondents convey to appellants the Red Diamond Resort, including fixtures, equipment, deep freeze and power mower, shown by attached inventory. It provided for the exceptance of 100 foot lot on which was located a poultry house. The purchase price was $32,500.00, payable $500.00 on signing of the contract, $8500.00 on delivery of deed and that respondents carry the balance of $23,500.00 represented by a note signed by appellants secured by deed of trust or mortgage on the property, payable in instalments of $900.00 on principal plus interest every six months. Sellers were to furnish abstract of title within ten days from date of contract and buyers were given ten days to examine same. Appellants paid to Meissner $500.00 on the signing of the contract. Meissner's agreement to have a survey of the property made was made just after the signing of the contract and prior to the execution of the deed and deed of trust and prior to the payment of the $8500.00. June 26, 1958, appellants returned to the Ozark Realty Company to complete the sale. At that time Meissner had in his possession a warranty deed to the resort purporting to convey it to appellants and the deed of trust and note for the balance of the purchase price, which appellants signed. Appellants paid to Meissner at that time $8500.00, as provided by the contract, were informed by him that the survey had not been made. They examined the deed but refused to accept it until the survey was made. July 1, 1958, appellants took possession of the property. Respondents, without the permission or consent of appellants placed the warranty deed on record together with the deed of trust which appellants received some time later through the mail.
The warranty deed described the real estate in issue by metes and bounds and the last courses read:
'* * * thence South along said Quarter (1/4) section line Twenty and Eight Tenths (20.8) feet to a point in the center line of a present Thirty (30) foot road; thence South Forty-five (45) degrees, Fifty-nine (59') minutes East along the center line of said road One Hundred Forty-one and One Tenth (141.1) feet to a point; thence South Eighty (80) degrees Thirty-two (32') minutes East continuing along the center line of said road Four Hundred Forty-five and One Tenth (445.1) feet to a point; thence South Nine (9) degrees Twenty-nine (29') minutes West, a distance of Thirty-four (34) feet more or less, to the Six Hundred Sixty-two (662) foot contour elevation of the Lake of the Ozarks, * * *'.
Prior to receiving the deed, appellants learned on July 6th, that Yorks claimed a part of the property which Meissner had represented as belonging to the Red Diamond Resort but never talked to Bingman about the matter until October 28th. On December 26th appellants made the semiannual payment on the principal with interest, by letter, and, at that time, made no statement about the title to the property.
James Cannon testified that he first approached Bingman about where the lines to the property were on October 15, 1958, and asked him if he had knowledge of the fact that Yorks were claiming a part of this property when the contract of sale was made and respondent answered 'Yes' but he didn't know what he could do about the matter; that 'If it is wrong, * * * I guess I will just have to go back on the other people I bought it from'. Witness testified that he, again, approached Bingman about the matter around Thanksgiving, 1958. He gave this answer: 'I asked him, I said, 'Well, you know this has got to be settled', and said 'Yes, I do, but' he said 'if you want to know anything' he says 'go to the Ozark Realty', he said, 'they are the ones that sold it to you', he says, 'I can't tell you a thing''. He testified he discussed the matter with the Ozark Realty Company a number of times but 'they didn't give us much recognition when we did discuss it'; that in December a payment was due, which appellants paid.
The evidence shows that after the discussions with respondents and with Meissner as to the property conveyed them by the deed, they sought the advice of a lawyer. On May 18, 1959, appellants filed their original petition.
Mrs. Cannon, appellant, testified that Meissner pointed out a point about two feet north of the tool house as being where the north line came to but that the line he pointed out included the parking area before reaching that point. On July 12, 1958, appellants executed a deed to respondents for the lot that was reserved. They testified they did not know the 'whys or wherefores of the transaction'.
R. W. Vincent testified in behalf of appellants that he was a registered land surveyor and had been practicing his profession for 38 years; that he made a survey of the Red Diamond Resort a year or so ago; that at the time of the survey he had the deed, executed by respondents to appellants (plaintiffs' exhibit 6). He made a paper map of this survey (plaintiffs' exhibit 8). He gave...
To continue reading
Request your trial
-
Cannon v. Bingman
...to as 'Buyers,' and the defendants-respondents Bingman will be referred to as 'Sellers.' The case has been before this court in Cannon v. Bingman, 354 S.W.2d 894, where the facts are stated in detail; but in order to clarify the questions here we must restate some of the Sellers owned what ......
-
Luli Corp. v. El Chico Ranch, Inc.
...by Rule 73.01(d), V.A.M.R. Allmon v. Gatschet, Mo., 437 S.W.2d 70, 73(3); Nixon v. Franklin, Mo., 289 S.W.2d 82, 88(5); Cannon v. Bingham, Mo.App., 354 S.W.2d 894, 900(2). The case was tried on plaintiffs' second amended petition which alleged that prior to plaintiffs' purchase of El Chico ......
-
Iota Management Corp. v. Boulevard Inv. Co., 49817
...was timely the court must consider whether appellants have been placed in a disadvantaged position by the delay. Cannon v. Bingman, 354 S.W.2d 894, 906 (Mo.App.1962). See also MacCurrach v. Anderson, 678 S.W.2d 459, 463 [12, 13] Appellants were not disadvantaged by the delay in respondents'......
-
Sims v. Williams
...v. Miceli, Mo., 291 S.W.2d 845; Blanke v. Miller, 364 Mo. 797, 268 S.W.2d 809; Nixon v. Franklin, Mo., 289 S.W.2d 82; Cannon v. Bingman, Mo.App., 354 S.W.2d 894; Lewis v. Wolfe, Mo.App., 413 S.W.2d 314, where it is said, L.c. 'At the same time, where the evidence is conflicting and close, a......