Drake v. Hicks

Citation261 S.W.2d 45
Decision Date14 September 1953
Docket NumberNo. 2,No. 43472,43472,2
PartiesDRAKE et al. v. HICKS et al
CourtUnited States State Supreme Court of Missouri

William C. Connett IV, Thomas V. Connelly, St. Louis, Bryan, Cave, McPheeters & McRoberts, St. Louis, of counsel for appellants.

Witherspoon, Lewis & Draper, St. Louis, for respondents.

ELLISON, Judge.

This is a second appeal in a suit for specific performance of a written contract to convey certain real estate in St. Louis designated in the record as 4460-62 Enright Avenue. The plaintiffs Drake, husband and wife, were the contract purchasers of the property. The defendant Fred Hicks was the owner. The two other defendants, Parker and Matthews, were purported lessees. Hicks contended the plaintiffs Drake had failed to carry out the contract on their part. The trial court found they had, and divested the title out of Hicks and vested it in them. Hicks appealed, and in 249 S.W.2d 358 this court reversed and remanded the cause with directions to reinstate the interlocutory decree as a basis for further proceedings consistent with the opinion. The second hearing was on the same record.

The contract of sale was unusual. It was a written 'Receipt For Earnest Money' dated September 9, 1950, marked 'Accepted' by the plaintiff purchasers Drake and 'Approved' by the defendant vendor Hicks. It stated the total purchase price of the property was $12,000, of which $300 was a down payment of earnest money, and $8,700 was to be paid in cash at the closing of the sale on or before October 2, 1950, at the office of Oren E. Scott. Time was to be of the essence of the contract. The remaining $3,000 was to be paid monthly in 36 notes of which 35 were for $90 each, and the remaining note for $139.80 drawing 6% interest, all secured by a second deed of trust, subject to an outstanding first deed of trust for $7,500 due in three years, drawing 5% semi-annual interest. Hicks guaranteed the title.

The plaintiffs Drake did not appear at the office of Oren E. Scott on October 2, as stipulated, to close the contract but went there the next day and completed the arrangements for financing the transaction. The defendant vendor Hicks refused to execute the deed and the plaintiffs Drake instituted this suit for specific performance. The trial court found for them and on April 20, 1951, entered an interlocutory decree for specific performance of the contract of sale conditioned on their compliance therewith in ten days by deposit of the money, notes and second deed of trust called for therein. On proof of that compliance and of defendant Hicks' refusal to perform the trial court entered a final decree on April 24, 1951, divesting title to the real estate out of the defendant Hicks and vesting it in the plaintiffs Drake.

In the interlocutory decree the trial court found that after the defendant Hicks had on September 9, 1950, contracted in writing in the 'Receipt for Earnest Money' to consummate the sale on October 2, 1950, and sell the land to the plaintiffs Drake, he [Hicks] had on October 3, 1950 fraudulently entered into 5-year leases on two separate parts thereof respectively to the defendants Parker and Matthews, both leases to be effective September 1, 1950. In other words, the two leases were backdated. And they were at a depreciated rental of $50 per month for one part and $40 per month for the other, whereas the reasonable rental value of the whole property was $100 per month. The interlocutory decree found these leases were entered into by Hicks in bad faith for the sole purpose of thwarting the sale of the property to the plaintiffs Drake, and that no rentals had actually been paid by the lessees Parker and Matthews.

Continuing, the interlocutory decree held the plaintiffs Drake were entitled to specific performance of their contract as expressed in the 'Receipt for Earnest Money', and directed them within 10 days to deposit with the clerk of the court $9,000 [their down payment of $300 plus $8,700 obtained on a second deed of trust] and also the $3,000 in $90 notes payable monthly called for by the contract and secured by a second [third?] deed of trust. Further the interlocutory decree ordered the clerk of the court upon the receipt of said purchase money, notes and second deed of trust on the property, to pay off a prior deed of trust thereon held by the Home Owners Loan Corporation on which $7,500 was due, and to release the same of record.

Still further the interlocutory decree directed the clerk to withdraw so many of the plaintiff Drake's $90 notes as had been accruing monthly since the execution of the contract on October 2, 1950 and until the decree had become final and possession of the property delivered to the plaintiffs, the same to be marked cancelled and paid and returned to plaintiffs as an off-set to the $100 per month rental value of the property they had lost by reason of being deprived of possession thereof.

The remainder of said $90 notes together with the second deed of trust covering them and the remaining balance of the purchase price of $9,000 were to be paid to the defendant Hicks, after deduction therefrom of all payments on the prior deed of trust [held by the Home Owners Loan Corporation?] and the costs of the lawsuit.

In its final decree the trial court repeated and adopted all or most of the foregoing findings in the interlocutory decree, and found the plaintiffs Drake had complied with them. It ordered that after the making of the disbursements directed in that decree, payment of the costs in the case and the adjustment of taxes for 1950, the balance remaining should be paid to the defendant Hicks. And finally it divested Hicks' title in the land and vested it in the plaintiff Drake, and cancelled the leases thereon of the defendants Parker and Matthews.

Defendant Hicks appealed. He objected to completion of the sale for two reasons. The first was that a provision had been inserted in the deed of trust securing the $3,000 in monthly installment payment notes, granting the plaintiffs Drake the privilege of paying the secured indebtedness in full or in part at any time upon notice to Scott, the trustee in the deed of trust, the interest on the principal amount of such payments to cease from the date of payment thereof. It was held on the former appeal, 249 S.W.2d loc. cit. 360(5) that this was a violation of his [Hicks'] rights, since the contract of sale did not contain a prepayment privilege clause.

Further, the installment notes were not made payable to Hicks, the vendor, but to a straw party John F. Schrontz, who was named as third party, or beneficiary, in the deed of trust. Oren E. Scott was trustee. It appears the intention was to have Schrontz endorse the notes without recourse to defendant Hicks. The deed of trust securing the notes to Schrontz was filed in the recorder's office, and thereafter tendered with the notes to Hicks, who refused to accept them because they were not payable to him, the seller, as the contract required. But when the plaintiff-appellant Drake tendered them into the circuit court on the trial of their specific performance case the court ruled the notes were such 'as called for in the terms of the sale contract.'

On the former appeal this court held the foregoing was an even greater violation of Hicks' rights, and reversed the trial court's final decree dated April 24, 1951, and remanded the cause with directions to rein state its interlocutory decree of April 20, 1951, as the basis for such further proceedings as the circumstances might require, consistent with that opinion.

Accordingly, the trial court reinstated its interlocutory decree for the plaintiffs-respondents Drake and against the defendants-appellants Hicks et al. and vacated its prior final decree of April 24, 1951 for the Drakes. Thereupon the court on August 1, 1952, entered a new final decree in favor of the plaintiffs Drake, which substantially conformed to the original final decree, brought down to date.

Thereafter on August 9, 1952 the defendants-appellant Hicks, Parker and Matthews filed a motion for new trial containing 11 assignments of error. After hearing argument thereon the trial court sustained that motion generally, without any specification of error, on October 7, 1952, and the Drakes filed their notice of appeal to this court the next day, October 8, 1952. In consequence they became appellants, and the defendants Hicks et al., who had theretofore been appellants, became respondents.

Section 510.330, RSMo 1949, V.A.M.S. provides that every order allowing a new trial 'shall specify of record the ground or grounds on which said new trial is granted.' The motion for new trial in this case contained 11 assignments of error, which stated only general conclusions of law or fact. The trial court's order sustaining the motion merely stated that it was sustained, but gave no reasons for the ruling and no statement of the assignments which were sustained.

Rule 1.10 of this court provides that when the trial court grants a new trial without specifying of record the ground or grounds on which the new trial is granted, the presumption shall be that the trial court erroneously granted the motion for new trial and the burden of supporting such action is placed on the respondents, in this case defendants Hicks et al. 1 Continuing, the rule states that if the appellant serves on the respondent a statement making such allegations of error, on or before the time required for filing the transcript on appeal, then the respondent shall prepare the original brief, and reply brief if any, and serve them within the time otherwise required for the appellant to serve briefs. The appellant...

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8 cases
  • Moore v. Glasgow
    • United States
    • Missouri Court of Appeals
    • 23 Marzo 1963
    ... ... 2 Hall v. Brookshire, 364 Mo. 774, 267 S.W.2d 627, 629(3); Drake v. Hicks, Mo., 261 S.W.2d 45, 48-49(1, 2); Davis v. Kansas City Public Service Co., Mo., 233 S.W.2d 669, 677(10); Missouri Crooked River Backwater ... ...
  • Willis v. Willis
    • United States
    • Missouri Court of Appeals
    • 28 Diciembre 1954
    ...and 'it shall never be presumed that the new trial was granted on any discretionary grounds' [Supreme Court Rule 1.10; Drake v. Hicks, Mo., 261 S.W.2d 45, 48(1)]. It logically follows that the considerations which motivated legislative imposition of the quoted requirements and judicial decl......
  • Yoo Thun Lim v. Crespin
    • United States
    • Arizona Supreme Court
    • 3 Marzo 1966
    ...trial was erroneously granted and shifted to the party beneficially favored the burden of supporting the trial court's ruling. Drake v. Hicks, Mo., 261 S.W.2d 45. In Moore v. Glasgow, 366 S.W.2d 475, the Missouri Court of Appeals examined extensively the Supreme Court rule, '* * * the first......
  • McIntyre v. M. & K. Dept. Store, Inc.
    • United States
    • Missouri Court of Appeals
    • 17 Diciembre 1968
    ...court erroneously granted the motion for new trial and the burden of supporting such action is placed on the respondent. * * *' Drake v. Hicks, Mo., 261 S.W.2d 45. In an effort to discharge that burden defendant asserts that the basis of the trial court's action was (1) an improper and prej......
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