Cummins v. Dixon

• Decision Date: 08 March 1954
• Docket Number: No. 43392,No. 1,43392,1
• Citation: Cummins v. Dixon, 265 S.W.2d 386, 47 A.L.R.2d 441 (Mo. 1954)
• Parties: CUMMINS et ux. v. DIXON et al
• Court: Missouri Supreme Court

Page 386

265 S.W.2d 386

47 A.L.R.2d 441

CUMMINS et ux. v. DIXON et al.

No. 43392.

Supreme Court of Missouri, Division No. 1.

March 8, 1954.

Jones & Alexander, D. Calhoun Jones and Philip S. Alexander, St. Louis, for appellants.

James M. Douglas, Max Sigoloff, St. Louis, Thompson, Mitchell, Thompson & Doughlas, St. Louis, of counsel, for respondents.

DALTON, Judge.

Action for specific performance of a contract to sell described real estate in the City of Clayton. Plaintiffs alleged that, as assigness of a lease containing an option to the lessees to purchase the real estate, they had exercised the option and defendants had refused performance. The cause was submitted solely upon plaintiffs' evidence and the trial court entered a judgment dismissing plaintiffs' petition. Plaintiffs appealed.

Neither plaintiffs nor defendants requested findings of facts or conclusions of law and the trial court made none. Nor is there a memorandum or statement of the reasons upon which the judgment was based. Plaintiffs-appellants contend that under the undisputed facts they are entitled to specific performance, while defendants-respondents urge numerous reasons for sustaining the judgment. The appeal was heard at the April Session 1953, and an opinion adopted reversing the judgment and ordering the cause remanded with directions to enter judgment in accordance with the prayer of the petition. Thereafter, a motion for rehearing was sustained in order to re-examine the record with reference to the execution, identity and genuineness of the alleged assignment of the lease and option. The cause has been re-briefed, reargued and reassigned. It is admitted that defendant Dixon was at all times a straw party holding title for the owners, defendants Rubin, who executed the lease in question. We shall adopt portions of the prior opinion and shall refer to the appellants as plaintiffs and to respondents Rubin as defendants.

By a written lease dated February 11, 1941, defendants, husband and wife, leased the described real estate to The Texas Company, a corporation of Delaware, for a term of ten years from and after March 15, 1941. Certain provisions of the lease should be set forth, as follows:

'(10)--Option. Lessor hereby gives the lessee the right and option to purchase the demised premises and all structures and improvements thereon at any time during the term of this lease or any extension or renewal thereof for the sum of Forty-Five Thousand Dollars ($45,000.00). * * *

'Lessee's notice of election to purchase shall be sufficient if deposited in the mail addressed to lessor at or before midnight of the day on which option term expires. Lessor shall, when requested by lessee, deliver to lessee complete abstacts of title, furnish up-to-date survey by a licensed or registered professional engineer or surveyor, showing elevations of property and corners marked with concrete monuments, upon receipt of which the lessee shall have a reasonable time in which to examine the title and, upon completion of title examination, if title is found satisfactory, shall tender the purchase price to lessor, and lessor, at time of such tender, shall deliver to the lessee a good and sufficient warranty deed conveying the premises to the lessee free and clear of all encumbrances (including, without limiting the foregoing, the rights of dower and/or courtesy).'

'(11)--Application of Option Purchase Price. In event accruing rentals are insufficient to reimburse lessee for expenditures made by lessee hereunder, and in event lessee exercises the option to purchase the demised premises, lessee may apply such part of the purchase price as is necessary to (a) completely reimburse itself for such expenditures and (b) pay any other indebtedness of lessor to lessee, together with interest at six per cent.'

'(13)--Assignment and Sub-letting. Lessor consents that lessee may assign or sublet the premises, provided that lessee shall remain liable to lessor for the performance of all the terms hereof.'

'(14)--Notice. Notices from lessee to lessor shall be sufficient if delivered to lessor, or if placed in the United States Mails addressed to the address shown in this lease. Notices from lessor to lessee shall be sufficient if posted in the United States Mails, postage prepaid, addressed to the lessee's principal place of business as shown in this lease.'

'(16)--Successors and Assigns. This agreement shall be binding upon and shall enure to the benefit of the parties hereto and their respective successors or assigns.'

The alleged assignment relied upon is as follows:

'Assignment of Lease and Option.'

'Know all men by these presents, That the undersigned, The Texas Company, a Delaware corporation, with offices at 332 South Michigan Avenue, Chicago, Illinois, for and in consideration of the sum of Five Dollars ($5.00) to it in hand paid and other good and valuable consideration, receipt whereof is hereby acknowledged, does for itself, its successors and assigns, hereby assign, transfer and set over unto Paul Cummins and Ruth Cummins, his wife, of 310 North Camelia, Los Angeles 49, California, their heirs, executors, administrators, and assigns, all of its right, title and interest in and to that certain lease, dated February 14, 1941, to it from Fannie Rubin and Jacob Rubin, her husband, of Clayton, Missouri, covering a tract of land, together with all appurtenances thereto in the City of Clayton, County of St. Louis, State of Missouri, more particularly described as follows: [correct description is here omitted] including all rights and options to purchase said premises contained in said lease, subject to all the terms and conditions thereof as therein set forth.

'A memorandum of said lease was duly filed for record in the office of the Recorder of Deeds for St. Louis County, Missouri on August 1, 1941 in Book 1795 at page 429.

'In witness whereof, The Texas Company has caused these presents to be signed by its duly authorized officer and its corporate seal to be hereunto affixed this 8th day of March, 1951.

Attest:

E. M. McCutcheon

Asst. Secretary.

Impressed seal 'The Texas Company.'

The Texas Company,

By J. M. Doss

Asst. Manager.

'Form approved

G. A. B.'

(The names 'E. M. McCutcheon,' and 'J. M. Doss' and the letters 'G. A. B.' are in writing.)

On March 9, 1951, plaintiff Paul Cummins sent to defendants, by registered mail, this letter:

'Fannie Rubin and Jacob Rubin

7547 York Drive

Clayton, Missouri

In re: Real Estate--Clayton, Missouri Central and Carondelet Avenues

'Dear Mr. and Mrs. Rubin: By assignment dated March 8, 1951, The Texas Company assigned to us all of its right title and interest in and to its lease from you dated February 14, 1941 of the above premises, including all of its rights and options to purchase the said premises contained therein. For your information a copy of the assignment is enclosed.

'We hereby elect to purchase the demised premises for Forty-five Thousand ($45,000.00) Dollars in accordance with all the terms and conditions of the said lease. We will appreciate it if you will have your abstract of title to the premises, or other evidence of title, brought down to date and submit it to us. Very truly yours, s/Paul S. Cummins, c/Ruth Cummins.' The address given was '310 North Camelia, Los Angeles 49, California.'

Defendants, by answer or at the trial, admitted having entered into the lease; that they received on March 10, 1951, the letter above quoted and a copy of the purported assignment; and averred in their answer that: '* * * the defendants (Rubins) have refused and continue to refuse to recognize any claim of the alleged plaintiffs in and to the real estate mentioned in plaintiffs' petition.'

Defendants did not furnish the abstract of title requested by plaintiffs, made no reply to the purported election to purchase and, so far as the record shows, took no action of any kind after receiving the March 9, 1951 letter. Receiving no answer to his letter, Cummins consulted his attorney and the present suit was filed April 9, 1951. Plaintiffs averred that they had at all times been ready, willing, and able to purchase in accordance with the option and, at the trial, Paul Cummins testified that on March 9, 1951 and thereafter he was prepared to pay cash for the property and he exhibited to the court a cashier's check dated April 4, 1952, payable to Paul S. Cummins, for $45,000.

Plaintiffs' evidence consisted of the lease, the purported assignment thereof, the notice of election to purchase (together with the copy of the assignment enclosed therewith), the cashier's check, and the return receipt signed by defendant Jacob Rubin acknowledging receipt of the purported election to purchase. In addition, plaintiff Paul Cummins testified that he was in the soybean business, doing business under the trade name of United Soya Company, and that he was also in the real estate and investment business. In connection with the notice of election to purchase, Mr. Cummins testified that his signature appeared thereon, but that the name 'Ruth Cummins' was in fact written by him; that he had specific authority to sign his wife's name to the document by virtue of a power of attorney which she had executed, making him her attorney in fact with respect to real estate transactions; that such power was executed in the Bank of America at its Beverly Hills main branch some 2 1/2 or 3 years prior to trial, but that after making a diligent search he had been unable to locate it. Mr. Cummins also testified that the alleged assignment of lease and option (which had then been admitted in evidence) and the letter of notice of election to defendants were both executed while he was in Chicago transacting business with J. J. Casey of the Texas Company at a time when his wife was not present; and that, thereafter, he made a written agreement with respect to a lease of the premises to The Texas Company as lessee, but that he had received...