Drake v. Hicks
| Decision Date | 09 June 1952 |
| Docket Number | No. 42778,No. 2,42778,2 |
| Citation | 249 S.W.2d 358 |
| Parties | DRAKE et al. v. HICKS et al |
| Court | Missouri Supreme Court |
Witherspoon, Lewis & Draper, St. Louis, for appellants.
William C. Connett, IV, Thomas V. Connelly, St. Louis (Bryan, Cave, McPheeters & McRoberts, St. Louis, of counsel), for respondents.
This is a suit for the specific performance of a contract to convey certain real estate known as 4460-62 Enright Avenue, in the City of St. Louis.
The plaintiffs are Kermit Drake and Wylor Dean Drake, his wife, the prospective purchasers of the property. The principal defendant is Fred Hicks, the owner of the property. The other defendants, Willie Joe Parker and Frankie Matthews, are the persons named as lessees in certain purported leases which the court found to have been executed by Hicks, not in good faith, but for the purpose of aiding him in avoiding the terms of his contract.
On September 9, 1950, Hicks entered into a written contract for the sale of the property to plaintiffs for the total sum of $12,000, of which $300 was thereby receipted for as earnest money; the sum of $8,700 was to be paid in cash upon the closing of the sale; and the remaining $3,000 was to be evidenced by notes of $90 each, payable monthly, bearing interest at 6% per annum, and secured by a second deed of trust which was to be subject to an outstanding first deed of trust for $7,500.
The contract further provided that the sale was to be closed on or before October 2, 1950, at the real estate office of Oreon E. Scott in St. Louis, and that time was to be of the essence of the contract.
Hicks and the Drakes had previously arranged to meet in Scott's office on September 9th for the preparation of the necessary papers in confirmation of the oral agreement that had been reached between them; and it was Scott who drew the contract and accepted and retained the deposit of the earnest money. Scott had agreed to undertake the financing for the Drakes, but, according to his version of the transaction, did not otherwise purport to act as agent for either party.
The deal was of course not closed on or before October 2nd as had been provided by the contract; and the principal question in the lower court was which of the parties was reponsible for the failure of performance. Plaintiffs' evidence was to the effect that Hicks had theretofore announced his repudiation of the contract, and that it was because of such fact, and in reliance upon advice from Scott, that plaintiffs did not appear at Scott's office on the day fixed for the closing of the deal. Hicks denied that he had ever told plaintiffs or anyone else that he would not go through with the sale, but insisted, on the contrary, that not only had he been at all times ready and willing to carry out his part of the transaction, but that he had in fact waited for plaintiffs outside Scott's office during the whole of the afternoon of October 2nd.
Even though plaintiffs did not appear at Scott's office on October 2nd, they did go there on October 3rd and completed the arrangements for financing the transaction. However Hicks was then unwilling to close the deal, and this suit for specific performance followed.
There is no question in the case regarding the sufficiency of the pleadings, of which it is enough to say that they set out the facts in substantially the same fashion as they have heretofore appeared in our own statement of the case.
The court took the case under advisement, and in due time entered an interlocutory finding and decree that plaintiffs were entitled to specific performance, provided they should comply with their own obligations under the contract; and that if, within 10 days, they would deposit with the clerk the amount to be paid in cash together with 'second deed of trust and notes as called for under the terms of the sales contract', the court would then order that title be passed.
Thereafter the court entered a final decree in which, having found that plaintiffs had meanwhile complied with the provisions of the interlocutory order by a deposit of cash and 'notes secured by second deed of trust as called for in the terms of the sales contract', the court adjudged that title be divested out of defendant Hicks and be vested in plaintiffs subject to the liens of the first and second deeds of trust.
Within due time defendants filed their motion for a new trial in which they set up, among other things, that the court had erred in rendering such final decree for the reason that plaintiffs had not in fact complied with the terms of the interlocutory decree.
The motion being overruled, defendants gave notice of appeal, and by proper successive steps have caused the case to be transferred to this court for its review.
Inasmuch as a case of this character involves title to real estate within the meaning of Art. V, Sec. 3, Constitution of 1945, V.A.M.S., appellate jurisdiction is vested in this court. State ex rel. Place v. Bland, 353 Mo. 639, 183 S.W.2d 878; Barnes v. Stone, 198 Mo. 471, 478, 95 S.W. 915; Herzog v. Ross, Mo.App., 192 S.W.2d 23.
While the three defendants joined in the appeal, the points for decision are all confined to matters in controversy between Hicks and plaintiffs.
There is no merit in the suggestion that specific...
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...in an appellate jurisdictional sense. State ex rel. Place v. Bland, 353 Mo. 639, 647-649(1), 183 S.W.2d 878, 884(4); Drake v. Hicks, Mo., 249 S.W.2d 358, 360(1); Kauflin v. Turek, Mo., 277 S.W.2d 540, 542(1); Barr v. Snyder, Mo., 294 S.W.2d 4, 5(1); Tant v. Gee, supra. In State ex rel. Plac......
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