Dill v. Poindexter Tile Co., No. 8890

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: TITUS
• Citation: 451 S.W.2d 365
• Docket Number: No. 8890
• Decision Date: 10 February 1970
• Parties: E. L. DILL and Helen Dill, Plaintiffs-Respondents, v. POINDEXTER TILE COMPANY, a Corporation, Poindexter Carpet and Linoleum, Inc., a Corporation and Arl W. Poindexter, Jr., Defendants-Appellants.

Page 365

451 S.W.2d 365 E. L. DILL and Helen Dill, Plaintiffs-Respondents,
v.
POINDEXTER TILE COMPANY, a Corporation, Poindexter Carpet
and Linoleum, Inc., a Corporation and Arl W.
Poindexter, Jr., Defendants-Appellants. No. 8890. Springfield Court of Appeals, Missouri. Feb. 10, 1970.
Rehearing Denied March 5, 1970.

Page 367

Milton B. Kirby, Kirby, Millsap & Lewis, Springfield, Mo., for plaintiffs-respondents.

Theodore C. Salveter, Jr., Walker & Salveter, Springfield, Mo., for defendants-appellants.

TITUS, Presiding Judge.

E. L. Dill and Helen Dill (collectively called 'the Dills') instituted this action for a declaratory judgment ¹ against Poindexter Tile Company, a corporation, Poindexter Carpet And Linoleum, Inc., a corporation, and Arl W. Poindexter, Jr. (denominated as 'the Poindexters' in the aggregate) in the Circuit Court of Greene County. A judgment without jury aid was rendered favorable to the Dills and the Poindexters have appealed.

For several years the Poindexters had provided the Dills, who were in the construction business, with labor and materials and their dealings gave rise to a host of controversies. Some of the disputes found their way into court, not the least of which were cases numbered 49031, 51227 and 50190, ² described as being 'now pending

Page 368

in the Circuit Court of Greene County, Missouri.' Probably near the first of March 1967, in an apparent effort to resolve their differences, Arl Poindexter prepared in his own hand a 'To Whom It May Concern' document which both he and E. L. Dill signed. Later, i.e., 'in December of 1967 or early in January of 1968,' the Dills and the Poindexters executed a written contract dated 'this --- day of December, 1967,' which was drawn by their attorneys ostensibly for the same reasons which prompted preparation of the earlier agreement.

The handwritten agreement prepared by Mr. Poindexter reads: 'This is to certify that Arl P & E. L. Dill have reached an agreement which will require Arl P. to release Judgment against the Dills ³ & mark all acct. prior to March 1, 1967 Pd. in full except the note for approx. 403.00 ⁴ and all claims in Susan Terrace against the Dills will remain as is. ⁵ In general the 11,000.00 against the Dills ⁶ is to be marked pd. except the note. ⁷ Mr. Dill promise to Arl P or Poindexter Tile in the return for the above as follows withdraw suit on the 3 houses on Latoka ⁸ & to give equity in 2 houses 303 Burton & 1054 Bruce. The 2 houses to have the minimum of 8500 Total equity figuring them at 12,500. ea. * * * ⁹ Mr. Dill is to furnish M. P the said properties free & clear except the 2 permanent loans. No other lien & etc. against these houses. Abstract will be brought to date & transferred. * * * ¹⁰ Mr. Poindexter understands that one of these houses is rented & other one sold on contract for deed. Both payment are current.'

Though perhaps sufficient unto those steeped in unpenned knowledge, the record in this case lacks considerable clarity for us who are solely dependent upon the written transcript for information. We can only surmise, therefore, that little, if anything, was done to implement the earlier agreement and that no action of any consequence was undertaken until after the parties signed the December 1967 contract. Partially paraphrased, the latter agreement acknowledged that difficulties of the parties were 'reflected in certain open accounts' and the numbered cases explained in footnote 2, supra, and recited: '9. When the conditions of this Contract have been met, all of the differences existing as of the date of this Contract shall be resolved between the parties and it is their intention to mutually release each other from any further claims which have accrued prior to the date of execution of this Contract of all matters existing between them.' The contract specified that cases numbered 51227 and 49031, including the counterclaim in Case No. 51227, were to be dismissed with prejudice at the cost of the Dills and that '8. * * * (the Dills) shall not contest the claim of (the Poindexters) or any of them in * * * Case No. 50190 in consideration that (the Poindexters) or any of them, shall provide (the Dills) with a release from any other real estate from any judgment therein as the transactions of (the Dills) shall from time to time require.' It was additionally provided

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by the December 1967 contract that the Dills were 'to pay the special tax bills and taxes for 1966 and their pro rata share of taxes for 1967 on (the property at 303 Burton)' and 'to show paid and released of record a Second Deed of Trust (on the property at 1054 Bruce).' The Poindexters agreed to 'have the abstracts on the two aforementioned properties recertified and re-extended at (their) cost' and it was understood 'that any defects in title or additional judgments and liens which may appear therein shall be corrected by (the Dills) except the judgment lien created in (Case No. 50190) named above herein.' Although the counterclaim of Poindexter Tile Company in Case No. 51227 was to be dismissed with prejudice, E. L. Dill, nevertheless, promised that the $403 promissory note was 'to be paid in its face amount.'

The parties agree that the intent and purpose of the two writings was to effect a full and complete settlement of all their differences. In this action, however, the Dills declared only upon the December 1967 contract and have continuously contended that it was a complete substitute for the handwritten agreement and that the contract prepared by Mr. Poindexter was totally merged into and obliterated by the December 1967 document. The Dills alleged that Poindexter Tile Company was allowed to secure an uncontested personal judgment against them only because such procedure was necessary to perfect the special judgment (mechanics' lien) against the described property and that, as paragraph 8 of the December 1967 contract provided, and the parties intended and understood, the company was restricted to collecting its claim under the judgment against that real estate only. It was further asserted by the Dills (and subsequently so stipulated) that after execution of the December 1967 contract, counsel for the Poindexters discovered a defect in the crossclaim of Poindexter Tile Company in Case No. 50190, that the company thereupon (after being paid $750 by some of the defendants in that case) released the real estate from the mechanics' lien and was asserting a right to proceed on the judgment against the Dills personally. Poindexters, by their answer, declared upon both contracts and asseverated the two could not be considered 'individually and separated from the (other), but * * * must be read mutually and together;' they denied that they 'were to only have their remedy of a mechanic's lien against the real estate' in Case No. 50190. The Dills, as the Poindexters additionally averred, had 'breached' the earlier contract 'and fraudulently entered into' it because they 'did not have a total of $8,500.00 equity in the properties they were to convey.' In conclusion, the Poindexters prayed that the court declare the rights of the parties under both contracts, to determine that the Dills had so breached the agreements as to make them null and void, and permit the Poindexters to 'pursue the lawsuits now pending.'

The trial court found and adjudged that 'under a true construction of the contract of December 1967, * * * such contract operated as a mutual release of all disputes between the parties reflected in open accounts and in (the numbered cases), and that all claims accruing prior to the execution of the contract were released by the same (and that) under the (December 1967) contract (the Poindexters) are obligated not to obtain a personal judgment in Case No. 50190, except for the purpose of establishing mechanic's liens in said case and not for the purpose of obtaining or collecting on a personal judgment against the (Dills) except out of the properties described in Case No. 50190.' In its written memorandum, the court nisi observed that it had arrived at its 'decision herein without deciding whether there was such merger' of the handwritten agreement with the December 1967 contract 'as to relieve (the Dills) of the alleged 'total equity' duty,' by finding, in effect, that the Dills had substantially complied with both contracts. One of the trial stipulations noted

Page 370

that the Poindexters 'raise no question of compliance by the (Dills) with the (December 1967) contract except as based on the matters alleged in (the Poindexters') answer.'

As a general rule, an informal or preliminary memorandum of the parties is merged into a subsequent formal contract (17A, C.J.S. Contracts § 381, at p. 452), and when parties reduce prior agreements into an integrated, unambiguous contract, all prior contracts are merged therein and become inoperative if they concern the same subject matter. Louis v. Andrea, Mo., 338 S.W.2d 96, 102--103(5, 6). Nonetheless, whether a second contract concerning the same subject matter as a former agreement made by the same parties works to discharge and replace the first undertaking, presents a difficult...