Elliott v. Richter
| Citation | 496 S.W.2d 860 |
| Decision Date | 06 July 1973 |
| Docket Number | No. 56354,No. 1,56354,1 |
| Parties | Alfred ELLIOTT and Beverly Elliott, Plaintiffs-Respondents, v. Carl E. RICHTER, Defendant Appellant |
| Court | United States State Supreme Court of Missouri |
John Alpers, Jr., Cabool, for respondents.
Turner, Reid & Duncan, Donald R. Duncan, Springfield, for defendant-appellant.
This is a suit for specific performance of the terms of a writing which respondents contend constitutes a contract between them as purchasers, and the appellant as seller, for the sale and purchase of a 160-acre tract of real property in Howell County, Missouri.
At the inception of the occurrences giving rise to this litigation the appellant, Carl E. Richter, was the owner of a 160-acre tract of land in Howell County, Missouri. Carl Richter and his brother, Willie E. Richter, were owners together (whether as joint tenants or as tenants in common does not appear from the evidence) of a 290-acre tract of land, improved with a residence, in Howell County, Missouri, and separated from the 160-acre tract by a road. The respondents' petition sought relief only with respect to the 160-acre tract.
On July 5, 1969, Carl Richter and Willie Richter and the respondents met at the respondents' home. The respondent, Beverly Elliott, prepared a writing in longhand, which was introduced in evidence as appellant's Exhibit 'A'. The text of that writing is as follows:
'This is an agreement to sell 290 A Farm, Description 210 A NE 1/4, NESE 1/4, N 1/4 SESE 1/4, Sec. 23, Twp. 27, Range 9; 40 A SWNW 1/4 Sec. 24, Twp. 27, Range 9; 40 A NWNW 1/4 Sec. 25, Twp. 27, Range 9, for the price of $41,500.00 with down payment of $8,500.00, $500.00 cash, plus 1967 ton Ford truck value at $2,000.00. The truck and $500 to be paid to close the deal. Possession of 290 A April 15, 1970, down payment of $8,000.00 to be paid March 15, 1970, balance to be paid at 6% interest on a 15 year loan but payments to set up on a 20 year basis; payments can be made at any time. The deed & abstract will be brought up (to) date on the 290A--160A.
(Three lines are left blank at this point.)
No signatures appear on the paper on which the writing is set forth.
All four of the parties then went to the office of a real estate agent who prepared two typewritten writings which were introduced in evidence as respondents' Exhibits 1 and 2, respectively. The text of respondents' Exhibit 1 is as follows:
'REAL ESTATE CONTRACT
'This agreement made and entered into this 5th day of July 1969, by and between Carl E. Richter, the seller, and Alfred E. and Beverly Elliott, the buyer; the term, seller or buyer, may be singular or plural according to whichever is evidence by the signatures affixed hereto; Witnesseth: That the seller, in consideration of the mutual covenants and premises hereinafter contained, hereby agrees to sell and convey unto said buyer who agrees to purchase as herein provided the following described real estate situated in the County of Howell, State of Missouri, to wit:
'E 1/2 SW 1/4 W 1/2 SE 1/4, Sec. 23, Twp. 27, Range 9, containing 160 acres more or less.
'In Witness Whereof, said parties hereto subscribe their names.
'Executed in triplicate.'
This writing bears the signatures of Carl E. Richter, Alfred Elliott, and Beverly Elliott.
The text of respondents' Exhibit 2 is as follows:
'REAL ESTATE CONTRACT
'This agreement made and entered into this 5th day of July 1969, by and between Carl E. and Willie E. Richter, the seller, and Alfred E. and Beverly Elliott, the buyer; the term, seller or buyer, may be singular or plural according to whichever is evidenced by the signatures affixed hereto.
'Witnesseth: That the seller, in consideration of the mutual covenants and premises hereinafter contained, hereby agrees to sell and convey unto said buyer who agrees to purchase as herein provided the following described real estate situated in the County of Howell, State of Missouri, to wit:
'NE 1/4 NESE 1/4 N 1/4 SESE 1/4, Sec. 23, Twp. 27, Range 9, containing 210 acres more or less; SWNW 1/4 Sec. 24, Twp. 27, Range 9, containing 40 acres more or less; NWNW 1/4 Sec. 25, Twp. 27, Range 9, containing 40 acres more or less.
'In Witness Whereof, said parties hereto subscribe their names.
'Executed in triplicate.'
This writing bears the signatures of Carl E. Richter, Willie E. Richter, Alfred Elliott, and Beverly Elliott.
Basically, it is the view of the appellant that the two writings, respondents' Exhibits 1 and 2, constitute a single contract and that this single contract was mutually rescinded by the parties. It is the view of plaintiffs that each of these two writings is independent of the other, and that although one of them was rescinded by mutual agreement, the other remained in force.
Possession of the truck mentioned in respondents' Exhibit 2 was delivered to Willie E. Richter, but title to the vehicle was never delievered nor was the $500 mentioned in that writing ever paid. The truck was later returned to the respondents and all of the parties thereafter treated the agreement to sell and buy the 290-acre tract as rescinded.
Interrogation of appellant by his attorney with respect to negotiations leading up to the preparation of the writings set forth in respondents' Exhibits 1 and 2, and appellant's Exhibit A, was objected to and the objection sustained. Appellant's attorney did not make any offer of proof. Appellant did testify that it was his intention to enter into only one contract for sale of the two tracts, and it was not his intention to enter into two contracts. Respondents' objections to these questions were overruled.
Under date of August 20, 1969, the appellant entered into a written contract to sell the 160-acre tract to other buyers, and when the respondents learned of that fact they filed this suit for specific performance. In his closing argument respondents' attorney stated that respondents were on that day depositing with the Clerk of the Court a cashier's check in the amount of $1,500, the amount provided by respondents' Exhibit 1, to paid on March 15, 1970.
The trial court entered judgment for the respondents and decreed, in part, that:
'The Court further finds the real estate contract entered into between Plaintiffs and Defendant on July 5, 1969, is in full force and effect and that Plaintiffs are entitled to specific performance of said contract; that on this date Plaintiffs have deposited the sum of fifteen hundred dollars ($1,500) with the clerk of this court representing the down payment provided in said contract, and that it is advisable and proper under the circumstances that this contract be enforced according to Supreme Court Rule 74.20, V.A.M.R.
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...to merge the separate contracts into one.51 With facts strikingly similar to the facts at issue here, the Missouri Supreme Court in Elliott v. Richter considered the legal status of two contracts that were executed on the same day for the sale of adjacent parcels of property.52 The same thr......
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