Ebbs v. Neff

• Decision Date: 01 February 1926
• Parties: GEORGE P. EBBS AND SALLIE A. EBBS, APPELLANTS, v. GLENN E. NEFF, RESPONDENTS
• Court: Kansas Court of Appeals

282 S.W. 74

220 Mo.App. 1070

GEORGE P. EBBS AND SALLIE A. EBBS, APPELLANTS, v. GLENN E. NEFF, RESPONDENTS

Court of Appeals of Missouri, Kansas City

February 1, 1926

Appeal from the Circuit Court of Johnson County.--Hon. Henry J Westhues, Judge.

AFFIRMED.

Judgment affirmed.

M. D Aber for appellants.

Nick M Bradley and Prince, Harris & Beery for respondent.

ARNOLD, J. Bland, J., concurs; Trimble, P. J., absent.

OPINION

ARNOLD, J.--

This is an action for possession of certain lands in Johnson county, Missouri, the title to which is alleged to be in plaintiffs, and for judgment for nonpayment of rentals on same. The suit was instituted in a court of a justice of the peace in said county, under the provisions of section 6901, Revised Statutes 1919, by filing in said court a statement alleging ownership by plaintiffs of 200 acres of land therein described. After said allegations, the statement proceeds, as follows:

"That same was rented and let to the defendant by a certain contract of rental dated March 24, 1920, for a term of four years; that by said rental contract defendant became and was and is obligated to pay to plaintiffs the sum of $ 210 on August 1, 1923, and the further sum of $ 210 on the 1st day of February, 1924, being the end of said term, and also the taxes due on said land on and prior to December 31, 1923, amounting to $ 103.94; that of the sum due August 1, 1923, defendant paid the sum of $ 54, leaving it at that time $ 156 due plaintiffs; that no part of the payment due February 1, 1924, was paid and it all remains due; that the tax mentioned was not paid, and that defendant thereby became further indebted to plaintiffs in the said sum of $ 103.94, the $ 156 bearing interest from August 1, 1923, the said $ 210 bearing interest at six per cent from February 1, 1924, and the $ 103.94 bearing interest at the same rate from December 31, 1923, making a total rent due of $ 478.44.

"That said agreement of rental further provided that the defendant should pay all interest coming due on the certain note secured by the deed of trust shown at Book 192, page 26 of the deed records of Johnson county, Missouri, and that same amounted to $ 275 and was not paid by defendant, and plaintiffs as provided by said rental and the obligations of law, paid same on January 30, 1924, and are entitled to interest thereon from said date to this time, $ 4.21, a total further rental of $ 278.21, making an entire rental due for the year of $ 756.65. That same has been demanded from defendant and that payment has not been made.

"Wherefore plaintiffs pray that judgment be rendered restoring the possession of all said property so described and that they recover said rental, together with their costs herein."

Defendant filed no pleadings in the justice court--none being required. The justice of the peace rendered judgment for plaintiffs for the alleged unpaid rentals and for possession of the land. Defendant appealed to the circuit court of said county where the cause was tried de novo by the court, a request by defendant for a jury being overruled. The judgment was for defendant and plaintiffs appeal.

The facts of record are as follows: Defendant bought from one Shannon a two hundred-acre farm, for the price and sum of $ 23,000, against which there was an existing first mortgage of $ 5,000. Defendant had $ 11,000 which was applied on the purchase price and he borrowed $ 7,000 from plaintiffs to make up the remainder, as evidenced by the written contract called a lease, making the amount due in four years, bearing six per cent interest. By agreement of parties, on March 24, 1920, and concurrent with the execution of said contract, a warranty deed to the land was made direct by Shannon to plaintiffs. Among other things, the said contract provided:

"The first parties (plaintiffs) have rented and do hereby rent and let to second party (defendant) for a term commencing this date and ending February 1, 1924, the following described land in Johnson County, Mo., to-wit: (Here follows description of the land.)

"In consideration of said letting, second party agrees and binds himself to pay to first parties $ 175 on August 1, 1920, and $ 210 on February 1, 1921, and thereafter the sum of $ 210 on August 1, 1921, and February 1, 1922, on the corresponding dates, $ 210 each six months up to and including February 1, 1924. Second party agrees further that he will pay all interest as it comes due on the certain note or notes secured by deed of trust covering said lands shown at Book 192, page 26, deed records of said county and in all things keep and perform the covenants in said deed of trust mentioned.

While the general principles of law announced in these objections are correct, they do not apply to the case at bar. Plaintiffs seem to have fallen into the erroneous position that the contract, upon its face being one for rental, that it cannot be adjudged to be anything other than what it purports to be, except by a court of equity. We may assume that defendant, in the justice court, properly defended the case as though a general denial had been filed, i. e., that he denied plaintiffs' allegations and, therefore, was entitled to show that the contract, in fact, was something other than it purported to be on its face. Certainly this does not imply that in construing the contract the justice of the peace would have assumed equitable jurisdiction.

It is charged the court erred in overruling plaintiffs' objection to the introduction of parol evidence in explanation of the contract in evidence. It may not be questioned that it is the general rule, as well as the rule in this State, that parol evidence may not be received to vary the terms of a written contract. As this rule is not disputed by defendant, citations are unnecessary. But the rule is general and does not apply where the contract on its face is ambiguous or uncertain. [Citizens' Trust Co. v. Tindle, 272 Mo. 681, 199 S.W. 1025; Terry v. Terry (Mo. App.), 217 S.W. 842.] That the court was justified in holding the contract ambiguous, we have no doubt. The testimony would seem to support the obvious position of the trial court.

The contract recites "should second party desire, he may pay portions of said sum at rental paying dates, said payments to be $ 100, or multiples thereof, in which event, further payments of rentals shall be reduced pro rata to such payments." In an attempt to secure plaintiffs' explanation of this point, witness Geo. P. Ebbs was asked as to its compatibility with the theory of a rental contract, or lease, but he was unable to explain it and so admitted. And when he was asked what he would pro rate such payments against, answered "against the $ 7,000 that I let him have to close the deal." The trial court, obviously and properly, held such facts to be in conflict with any relation of landlord and tenant between the parties.

It would seem that the duty of the court was to determine whether the contract in evidence should be construed as a loan contract or a lease. Being ambiguous on its face, it was proper to admit oral testimony in explanation of its terms. [Riffe v. Proctor, 99 Mo.App. 601, 74 S.W. 409; Weisman v. Ins. Co., 267 S.W. 21.] Particularly applicable to the facts in the case at bar is the ruling in Whiteside v. Oasis Club, 162 Mo.App. 502, 142 S.W. 752 at 752-3, where it is said:

"Furthermore the document recites that it is a lease and, besides, choice technical words of demise are employed therein. Indeed, it purports on its face to be a lease and recites that plaintiff had leased the amounts named therein to be paid by defendant to plaintiffs are not, in fact, "rental" payments as designated in the contract, but are payments of interest on the $ 7,000 borrowed from plaintiffs as above detailed, and that plaintiffs are not entitled to maintain this suit, as instituted, under the...