Deu Friend v. McDermott

• Decision Date: 16 September 1952
• Docket Number: No. 28406,28406
• Citation: 251 S.W.2d 339
• Parties: DEU FRIEND et al. v. McDERMOTT et al
• Court: Missouri Court of Appeals

Page 339

251 S.W.2d 339

DEU FRIEND et al. v. McDERMOTT et al.

No. 28406.

Sept. 16, 1952.

Rehearing Denied Oct. 17, 1952.

Henry G. Morris, James C. Porter, St. Louis, for appellant.

Rudolph K. Schurr, Robert L. Inman, St. Louis, for respondent.

HOUSER, Commissioner.

This is a suit instituted by William and Loretta Deu Friend, husband and wife, against Edgar McDermott and McDermott-Leonard Construction Company, a corporation, to recover a sum of money claimed to be due plaintiffs from defendants under an oral contract.

Plaintiffs alleged in their petition that on August 18, 1948 they entered into an earnest money contract with Edgar McDermott and the above named corporation for the purchase of a house and lot for $16,000; that defendants were to complete a ranch house thereon for plaintiffs by October 18, 1948; that they paid down the sum of $500; that the house was not completed on time and that the closing date was extended to April 10, 1949; that plaintiffs paid an additional sum of $500 earnest money on February 10, 1949; that plaintiffs spent $742.19 in improving the property and building; that before the closing date, for certain reasons alleged, it was agreed between the parties that defendants would return the $1,000 deposited by plaintiffs plus the $742.19 expended by plaintiffs in the improvement of the property in consideration of plaintiffs not closing the deal under the earnest money contract, and that although defendants promised to return to plaintiffs the sum of $1,742.19 paid out by them defendants have refused plaintiffs' requests therefor.

Defendants' answer admitted the execution of the earnest money contract between plaintiffs and the corporation, but denied that the individual defendant was a party to the contract or was acting in behalf of himself; alleged that Edgar McDermott was an agent only for the corporation; alleged failure of plaintiffs to close the earnest money contract and pay the balance due the corporation thereunder; alleged that the corporation was ready to consummate the deal but that plaintiffs were unable to finance the property, and claimed a forfeit of the earnest money paid, by virtue of plaintiffs' breach of the contract.

Plaintiffs' testimony showed that on August 18, 1948 a receipt for earnest money was signed by 'Edgar McDermott, Agent' acknowledging payment by plaintiffs of $500 as earnest money and part purchase money for a certain lot with improvements sold to plaintiffs for $16,000, payable $8,000 in cash and $8,000 in deferred payments. October 18, 1948 was fixed as the closing date in the contract. The house was not completed on that date. On February 10, 1949 an additional $500 was paid by plaintiffs to Edgar McDermott and the contract was extended to April 10, 1949. The extension agreement was signed 'Edgar McDermott.' About the middle of the month of March, 1949 Edgar McDermott telephoned to William Deu Friend and requested him to come to the office, where McDermott asked Deu Friend if he was having any luck in selling the property in which he was living in Kirkwood. On receiving a negative answer McDermott said they were selling the property 'real fast' in Ferguson Fields where the property under contract was located; that he had quite a few 'lookers' at the place plaintiffs were buying; that he had had an offer for it in excess of $16,000 and asked Deu Friend why he should not let him go ahead and sell it. Deu Friend asked McDermott how he would 'come out on a thing like that' and McDermott told him. '* * * If you agree not to close the deal on the Ferguson Fields property, we will go ahead and sell it and then we will give you back the money that you have in it.' The conversation further proceeded as follows, Deu Friend speaking: 'And I said, well, how much money would I get back? Would you pay me all my money back? He said, yes, we would give you your $1,000 back. I said, well I have seven hundred forty two dollars and I think nineteen cents in improvements in the place. He said, we would give that back to you also.' 'Q. Anything else said? A. Yes, I asked him if he didn't think that should be put in writing on my piece of paper there. And he said no, it didn't have to be. That he had been in business there all his life and his word was as good as his bond. Q. * * * Now did you then not close the deal with reference to the property in question? A. That is right.' Later in his examination Deu Friend testified that he did not want the house in Ferguson Fields after he talked to McDermott; that Due Friend told McDermott that if he had a buyer for the house for more than he had contracted to pay 'he should go ahead and sell it then' and that McDermott told him he was going to return his money to him. After April 10, 1949 Deu Friend talked to McDermott several times. Towards the end of April he asked him if anything had been done with respect to the property and McDermott said he was working on it and that he had an offer in excess of $16,000. In a conversation around the middle of May McDermott said nothing further had been done on it; that the deal was going through but it had not been settled as yet, and to keep in touch with him. At the end of June McDermott told him everything had gone through, the deal had been closed and that he had received in excess of the amount plaintiffs had agreed to pay for the house. It was then that Deu Friend asked for his money band and McDermott told him he had no money coming. During the period of the contract the Deu Friends advertised their home in Kirkwood for sale, and had an opportunity to sell it at one time but did not do so because the other house had not been finished; although the advertising was still appearing in the paper in the latter part of March William Deu Friend did not think it was being advertised in the month of April, 1949.

Edgar McDermott, testifying for defendants, denied the existence of the alleged oral contract to rescind and stated that the only conversation had with the Deu Friends was about November 1, 1949, some seven months after the earnest money contract had expired, at which time they came to the office and asked for their earnest money back and for the extras they had put in.

The jury found the issues for plaintiffis and against both defendants and returned a verdict in the sum of $1,742.19 plus interest, a total of $1,942.19. Appellants duly perfected their appeal to this court from the judgment entered on the verdict.

Appellants deny the formation of an oral contract. They contend that the offer made by Edgar McDermott was not accepted by William Deu Friend or by his wife Loretta. From the statement of facts it is clear that there was sufficient evidence to submit to the jury the question of acceptance by William Deu Friend of the offer of Edgar McDermott. Although there is no direct evidence that Loretta Deu Friend formally accepted the offer it is not 'in all events essential that the parties' assent to the rescission shall be established by proof of express agreement to that effect, but it may as well be implied from the acts and conduct of the parties with respect to the subject matter with which the contract dealt.' Henges Co. v. May, Mo.App., 223 S.W.2d 110, 112 and authorities cited. See also Conroy Piano Co. v. Pesch, Mo.App., 279 S.W. 226. It has been held that where one party claims to rescind a contract, the rescission is by mutual consent where the other party agrees to the rescission or does not object thereto and permits it to be rescinded. 'So, a contract will be treated as abandoned where the acts of one party inconsistent with its existence are acquiesced in by the other.' Alropa Corp. v. Smith, 240 Mo.App. 376, 199 S.W.2d 866, loc.cit. 871. The acceptance of the offer and the assent of Loretta Deu Friend to the rescission of the contract in the instant case could be inferred by the...