Ellison v. Wood Garment Co.

• Decision Date: 13 January 1956
• Docket Number: No. 7497,7497
• Citation: 286 S.W.2d 27
• Parties: Olyn G. ELLISON and Margaret G. Ellison, Plaintiffs-Appellants, v. WOOD GARMENT COMPANY, a corporation, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 27

286 S.W.2d 27

Olyn G. ELLISON and Margaret G. Ellison, Plaintiffs-Appellants, v. WOOD GARMENT COMPANY, a corporation, Defendant-Respondent.

No. 7497.

Springfield Court of Appeals, Missouri.

Jan. 13, 1956.

Chinn & White, Turner White, III, Walker Daniel, Clampett & Ritterhouse, B. H. Clampett, Springfield, for plaintiffs-appellants.

Schwab & Carr, Springfield, for defendant-respondent.

RUARK, Judge.

In this suit for specific performance plaintiffs have appealed from an adverse judgment rendered on motion at close of plaintiffs' case. The petition charged a parol agreement whereby plaintiffs leased to defendant 'all of the masonry building (hereinafter referred to as 'the building') situate on' certain described lots in Reeds Spring, Missouri, for a term of ten years with option for an addition ten years and at a rental of $80 per month; that such lease was reduced to writing (and such was made a part of the petition), but that defendant refused to abide by its agreement and execute the lease. The answer pleaded denial and the statute of frauds.

Facts developed by plaintiffs' evidence were that plaintiff Olyn Ellison, his wife, Margaret, and her mother were the owners of a concrete block building in Reeds Spring. Ellison, who was a contractor, had erected this building some four years previously for the purpose and with a view of occupancy by a garment factory. After it was constructed it was leased to a group of business men in the town, who in turn subleased it to, or at least permitted occupancy by, one Tony Hagale, who there ran a garment factory. The lessee townsmen paid the rent to plaintiffs and also paid a portion of Hagale's electricity bill. This lease was due to expire on May 9, 1953. In February, previous to the events here involved, Hagale had 'indicated' a desire to talk to Ellison about leasing the building himself and, presumably, continuing in his occupancy. But this was only an indication; the conversation never got as far as a negotiation or discussion of term or terms, because Ellison put Hagale off and the conversation was not pursued further.

At this time the defendant corporation was operating a garment factory at Republic, Missouri, and a Mr. Abramson and Mr. Weinsaft were its managing officers. Near March 1, 1953, representatives of the defendant made several phone calls to plaintiffs' residence in Springfield. Abramson finally established contact with Ellison and asked him if he (Ellison) would be interested in leasing the Reeds Spring building for a term of twenty years. In a few days Ellison drove to defendant's office in Republic, where they discussed a long term lease generally. At that time Ellison told Abramson that his wife and her mother were interested as co-owners and he would seek their advice and concurrence. A week or ten days later he again went to Republic and talked with defendant's representatives. It is this, the second meeting, upon which plaintiffs rely for their contract. Pertinent portions of Ellison's testimony in chief are as follows:

'Q. What discussion, if any, did you have then concerning the lease? A. I informed them that I had talked it over with my wife and mother-in-law, and that we had decided that we would lease the building to them. And they instructed me to have my lawyers prepare the lease. At that time we discussed, generally, on who was to keep the building up and who was to pay the insurance, and relative to maintenance of the building.'

The witness stated that the length of term (twenty years) and the rental ($85 per month) were agreed upon. As to other matters:

'Q. Did I understand you to say that you reached an agreement about insurance? A. Yes, sir.

'Q. And reached an agreement about upkeep? A. Yes, sir.

'Q. And about taxes? A. Yes, sir.

'Q. Were you instructed by Mr. Abramson or by Mr. Weinsaft to have a lease prepared by your attorney? A. I was, sir.

* * *

* * *

'Q. Mr. Ellison, when you left Republic at the conclusion of this second visit, was it your belief, or understanding, that you had reached an agreement with the Wood Garment Company for lease of the building in Reeds Spring? A. Yes, sir.'

Following this meeting Ellison went to his attorney and had a lease prepared which he said set out the things which had been agreed upon. He also had his attorney notify Hagale to get out of the building at the end of the lease soon to expire.

About April 1 Mr. and Mrs. Ellison took the typed lease (with carbon copy) to Republic and met with defendant's representatives. Abramson read this prepared lease and objected to two items only. He said he had changed his mind about a twenty-year term and wanted ten years with an option of ten more. He didn't want to pay the specified rental of $85 per month. Ellison agreed to Abramson's suggestions and made pen and ink alterations changing the term of years accordingly and fixing the rental at $80 per month. After this Abramson said 'it looked just fine' to him, handed his pen to Mr. and Mrs. Ellison and requested them to sign it, which they did. Then Abramson said he wanted to have his lawyer read the lease, that it was 'customary and businesslike.' Ellison said he could understand that, because there were several pages of fine print, and that this would be agreeable. Abramson said as soon as his lawyer checked the lease he would sign it and mail the carbon copy to Ellison.

About a week later Abramson called the plaintiffs' home and talked with Mrs. Ellison. He stated that he understood Hagale had not left Reeds Spring. She asked him if that made any difference, and he said the town couldn't 'take care of' two factories. In her words, 'He said he was awfully sorry about it, and he knew that he had caused us to evict our present tenant, and had promised to rent from us, and he knew that he had done us an injustice. And he said, 'I will rent the building from you for at least a year.'' Thereafter the plaintiffs made tender of possession, but defendant never accepted it and the lease was never signed.

According to plaintiffs, the question of whether Hagale would or would not leave Reeds Spring was never discussed during the negotiations above referred to. Actually he did not leave, but at or near the expiration of the lease to his townsmen-sponsors he simply moved his factory into another building across the street. There was evidence that it involved considerable expense to train garment workers and that defendant had been expecting to employ workers who had been trained by Hagale in event Hagale took his factory out of town; that it would have been impractical for two garment manufacturers to operate in such locality because of the shortage of skilled labor. Plaintiffs' witness Hagale testified that he had been satisfied with his previous location in plaintiffs' building and his relations with Ellison had been reasonably cordial; that he had mentioned to Ellison the possibility of his leasing the building, but no terms, conditions or rentals had been discussed. We can conclude from his testimony that had Ellison so chosen there was a possibility or perhaps even a probability that Hagale might have leased the building; but on what terms we cannot even speculate.

It is conceded that the contract sought to be enforced falls within the prohibition of the statute of frauds. Enforcement is sought upon the theory of 'part performance.' Courts of equity sometimes enforce parol contracts barred by the statute, but this is a chancery power, used only to prevent deep-seated wrongs, which is most sparingly exercised. Walker v. Bohannan, 243 Mo. 119, 147 S.W. 1024, 1028; Jones v. Linder, Mo.Sup., 247 S.W.2d 817, 825. 'Parties who have ignored the statute of frauds cannot exact the pound of flesh although their oral contract awards it to them. Specific performance will be granted only where the very justice of the thing calls for it.' Sportsman v. Halstead, 347 Mo. 286, 147 S.W.2d 447, 456. As Judge Lamm once put it, '* * * it is nonenforceable in equity, except on one high condition, and such condition arises when the nonenforcement of the contract would work an equitable fraud upon the promisee; that is, the conscience of the chancellor is stirred, and relief is extended in his open palm, when, and only when, it is certain beyond the peradventure of a doubt that to deny the relief would be to strike down the underlying purpose of the statute of frauds, to wit, the prevention of frauds and perjuries.' Kirk v. Middlebrook, 201 Mo. 245, 100 S.W. 450, 462. Specific performance presupposes the existence of a complete and concluded contract. 81 C.J.S., Specific Performance, Sec. 30, p. 476, and cases infra. And in this character of action, by which the petitioner appeals to the conscience of the chancellor to override the plain provisions of the statute, the contract so claimed must be proved by 'clear, cogent and convincing' evidence. Thompson v. St. Louis Union Trust Co., 363 Mo. 667, 253 S.W.2d 116, 121; Scheerer v. Scheerer, 287 Mo. 92, 229 S.W. 192, 196: Collins v. Harrell, 219 Mo. 279, 118 S.W. 432, 437. Such evidence must be so clear and forcible as to leave no reasonable doubt in the mind of the chancellor as to the contract and its terms. Jennings v. Achuff, Mo.Sup., 272 S.W.2d 263, 265; Feste v. Bartlett, Mo.Sup., 269 S.W.2d 609, 613; Roberts v. Clevenger, Mo.Sup., 225 S.W.2d 728; Schebaum v. Mersman, Mo.Sup., 191 S.W.2d 671, 675; Mason v. Mason, Mo.Sup., 153 S.W.2d 27, 33. The contract sought to be enforced must be so final, definite, clear, precise and exact that its terms cannot be misunderstood. In short, a court of equity will not decree specific performance of a contract which is uncertain, incomplete or indefinite in terms or intendments. P. R. T. Investment Corp. v. Ranft, 363 Mo. 522, 252 S.W.2d 315, 319; Blake v. Shower, Mo.App. 207 S.W.2d 775, 779; Walker v. Bohannan, 243 Mo. 119, 147 S.W. 1024, 1028, supra; Forrister v. Sullivan, 231 Mo. 345, 132 S.W. 722, 730.

We shall...