Corley v. Kiser

Decision Date14 September 1977
Docket NumberNo. 10326,10326
Citation556 S.W.2d 218
PartiesHorace CORLEY, Plaintiff-Respondent, v. Theodore KISER and Virginia Kiser, Defendants-Appellants.
CourtMissouri Court of Appeals

Dale H. Close, Richland, Arthur B. Cohn, Jr., Waynesville, for plaintiff-respondent.

Charles M. Wesley, Waynesville, for defendants-appellants.

STONE, Judge.

This is an appeal by defendants Kiser from a judgment of the Circuit Court of Pulaski County awarding to plaintiff Horace B. Corley (plaintiff Corley) the sum of $5,650.00 damages for defendants' breach of a "Contract of Sale of Real Estate" dated November 24, 1971 (the contract), in which plaintiff agreed to purchase certain real estate (sometimes referred to as the premises) 1 from defendants, Theodore R. and Virginia Kiser, husband and wife. Dorothy M. Corley, plaintiff's then wife, executed the contract with her husband; but, when the Corley marriage was dissolved on May 16, 1975, plaintiff became the sole owner of the buyers' contractual rights and interest under that contract.

The contract obligated plaintiff Corley to pay $5,000 in equal monthly installments of $87.67 each and all taxes for 1972 and thereafter; permitted plaintiff to pay without penalty all or any part of the balance due at any time prior to maturity; required defendants Kiser, upon request by plaintiff to furnish an abstract of title showing a merchantable fee simple title in defendants; stipulated that, upon full payment of the purchase price and all accrued interest, defendants would convey the described realty to plaintiff by "general warranty deed"; stated that, in the event of default by plaintiff continuing more than ten days after written notice by defendants, "at their option and upon written demand," they might "declare the entire balance of the sale price immediately due and payable" and, if such "entire balance" were "not forthwith paid," they might (a) terminate all of plaintiff's rights under the contract and retain as liquidated damages all sums theretofore paid by plaintiff or (b) pursue any other legal remedy for breach of contract; and provided that the contract was not assignable by plaintiff without the written consent of defendants.

Joe Miller, a real estate agent at Waynesville (Miller), negotiated a sale of the property by plaintiff Corley to third parties, Ronald W. Cochran and Ida B. Cochran (third-party buyers), who gave Miller a check in the sum of $2,914.24 2 to be held in escrow as a down payment on the property. On June 1, 1973, Miller apprised defendants Kiser of this transaction by letter addressed to their home in North Laurel, Maryland, and on June 15, 1973, he informed them by letter similarly addressed and mailed to defendants that "(a)s soon as the abstract is ready the Corleys are ready to pay the balance of $4,025.33 . . . on the contract." 3 (All emphasis herein is ours.)

On August 21, 1973, Miller again wrote defendants Kiser, enclosing (1) a warranty deed to be executed by defendants and (2) the Corley note with the request that it be marked "paid in full," and promising that, upon return of the executed deed and the Corley note so branded as paid, "we'd be able to send them a check for the balance that the Corleys owed." Having had no response from defendants Kiser in the meantime, early in September 1973 Miller contacted William C. Morgan (Morgan), manager of the Pulaski County Abstract Co., Inc. and Claude Morgan Insurance Agency, Inc., to act as an escrow agent; and on September 7, 1973, Morgan wrote defendants that they could send the executed deed and the note to the First National Bank at Waynesville, Missouri, which would "act as your agent in closing this transaction and being sure you receive the $4105.85 which is due to you."

Plaintiff Corley testified that the reasonable value of his labor and the materials he had "put into the house" was $7,000. 4 Stating that he had "spent approximately $5,000" for materials, he recalled expenditures of $3,100 for blocks, lumber and other materials purchased from a supplier in St. Robert, the major portion of which was used in building "a big porch" on the house, a $620 expenditure for air conditioning equipment in a central system, and a $430 expenditure for gas lines, duct work, and furnace repairs. Without supplying specific figures for expenditures in connection with other repairs and betterments, he stated that he had replaced "the wiring upstairs," that he "re-did" and "re-sheetrocked" the ceilings both downstairs and upstairs, that he had "completely paneled the downstairs apartment" with panels costing $8.15 per sheet, and that he had put a new roof on the house. 5 On the contract with defendants Kiser, plaintiff Corley had made monthly payments of $87.67 each from January, 1972 to May, 1973, inclusive.

Defendants maintain that the contract was not breached either by their failure to furnish the abstract as was requested in Miller's letter of June 15, 1973, or by their failure to send plaintiff the warranty deed and the note marked "paid in full" as was requested in Miller's letter of August 21, 1973. Rather, defendants assert that the contract was breached by plaintiff when he failed to make any monthly installment payment after May, 1973; and, when the installment payments due June 5, July 5, and August 5 were not received, defendants mailed Miller a typewritten letter dated August 28, 1973, which purported to be a ten-day notice letter contemplated by the contract. Although this letter declared "the contract terminated" and demanded $4,105.85 as "full payment of balance with the accrued interest," it also assured plaintiff Corley "a bank certified check" for $4,105.85 "will be excepted (sic)" and closed with the promise that "in turn" defendants would "sign deed and sign and mark prommissary (sic) note paid in full" and "return" those instruments to plaintiff Corley an assurance of action by defendants Kiser obviously inconsistent with and repugnant to termination of the contract and forfeiture of plaintiff Corley's rights thereunder. In a handwritten postscript to this letter, defendants also charged that plaintiff Corley had failed to fulfill his obligation under the contract to pay all taxes. 6

Defendants Kiser further testified that on Saturday, October 13, 1973, they visited Morgan's office in Waynesville and informed him that "(w)e had a deed (and) a note ready to execute" and that "(a)ll we ask is a bank certified check from the Corleys and turn it over to them." Morgan advised defendants to contact Miller; but, instead of attempting to do so that same day, they "went back home down to Devil's Elbow . . . (we) rented a place down there, Big Piney." When defendants returned to Waynesville on Monday, October 15, Miller was not in his office when they called there, so they made a second visit to Morgan's office and "asked him for the money again." Then finding that Miller had not yet returned to his office, defendants proceeded to the office of plaintiff Corley's attorney, Arthur B. Cohn, who informed them that Corley was in Florida and it would "take me (Cohn) about three or four days to get" Corley back to Waynesville. 7 Shortly thereafter defendants' attorney, Charles M. Wesley, by letter to Cohn notified plaintiff Corley to vacate the premises and to remove two abandoned automobiles therefrom and also informed plaintiff that he (Wesley) already had notified the Cochrans (third-party buyers), then occupying the premises, to vacate.

In due time, plaintiff Corley instituted this action for breach of contract; and, upon trial by the court sitting without a jury, plaintiff had judgment for $5,650 from which defendants have perfected this appeal. Our appellate review is "upon both the law and the evidence as in suits of an equitable nature" with "(d)ue regard . . . to the opportunity of the trial court to have judged the credibility of the witnesses" (Rule 73.01, subd. 3(a, b), V.A.M.R.), and we are directed to sustain and affirm the judgment "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." Murphy v. Carron, 536 S.W.2d 30, 32(1) (Mo. banc 1976).

As respondent here, plaintiff Corley is clothed with the presumption that the judgment nisi is correct, and the burden is on defendants Kiser, as appellants, to establish affirmatively any alleged error. Hardy v. McNary, 351 S.W.2d 17, 20(2) (Mo.1961); James v. James, 248 S.W.2d 623, 627(8) (Mo.1952) ; Crossgates Home Ass'n. v. Blomquist, 537 S.W.2d 429, 430(1) (Mo.App.1976); Pallardy v. Link's Landing, Inc., 536 S.W.2d 512, 515(2) (Mo.App.1976); State ex rel. Mayfield v. City of Joplin, 485 S.W.2d 473, 476(8) (Mo.App.1972).

Where, as here, no specific findings of fact were requested of or made by the trial court, on appellate review all issues of fact are deemed to have been found in accordance with the result reached and the judgment entered in the trial court (Rule 73.01, subd. 1(b)); and, absent any assigned error, the judgment will be affirmed if it can be sustained on any reasonable theory supported by the evidence. Lossing v. Shull, 351 Mo. 342, 351, 173 S.W.2d 1, 5(1) (1943); De Paul Hospital School of Nursing, Inc. v. Southwestern Bell Telephone Co., 539 S.W.2d 542, 545(1) (Mo.App.1976); Collins v. Bowyer, 524 S.W.2d 190, 193(1, 2) (Mo.App.1975).

With the preceding precepts in mind, we attend defendants' three "Points Relied On." The first two of those points are considered together, for, when so consolidated, they constitute a single attack on the sufficiency of the evidence to support the judgment nisi. Without descending into needless detail, we record our opinion that neither the evidence offered on behalf of plaintiff nor that offered on behalf of defendants was either uncontroverted (as defendants-appellants boldly assert in their brief) or unequivocal. In this...

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    • April 10, 1978
    ...Side Finance Co. v. Sparr, 78 S.W.2d 892, 894(4) (Mo.App.1935)." Long v. Lincoln, 528 S.W.2d 512, 513(3) (Mo.App.1975); Corley v. Kiser, 556 S.W.2d 218, 222 (Mo.App.1977). See Mangan v. Mangan, 554 S.W.2d 418 (Mo.App.1977). Viewed in the light of that directive, the evidence in the case at ......
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