Fincher v. England, 9003
| Decision Date | 14 January 1971 |
| Docket Number | No. 9003,9003 |
| Citation | 463 S.W.2d 82 |
| Parties | Amos FINCHER, Plaintiff-Respondent, v. Mabel ENGLAND, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
J. W. Grossenheider, Lebanon, for defendant-appellant.
John F. Low, Low & Honssinger, Lebanon, for plaintiff-respondent.
This is an action in ejectment, tried to the court without a jury. The court found and entered judgment for the plaintiff. 1 The defendant has appealed.
The record is remarkably diffuse and difficult to follow. For the most part it consists of defendant's 'explanations,' offers of proof, and tenders of defendant's 19 exhibits, the last of which is an envelope containing 151 loose papers, including the backs of envelopes, adding machine tapes, and cash sales receipts. From what was testified to and offered, we have gleaned the following background facts: The parties live in or near Lebanon, in Laclede County. During the time in question, Mr. Fincher was married, but he and the defendant enjoyed what counsel called a 'special friendship.' Inferably Mrs. England had been Mr. Fincher's 'girl friend' for several years when this action was begun, and on occasion he had either given or loaned her money, sometimes taking token security to conceal the nature of their relationship.
The parcel of property in suit is a two and one-half acre tract in the City of Lebanon. At some time in 1957, Mrs. England bought this property and secured her obligation, according to the plaintiff, with a deed or trust. Mr. Fincher paid the balance due Mrs. England's vendor. According to defendant's offer of proof, he did this to compensate for having cheated her in another deal; plaintiff's explanation was that Mrs. England wanted him to build a house for her on her property, and he paid her vendor because 'she had no hold (on the property) and I wouldn't have a house built on it unless I had the deed.' Mrs. England deeded the property, which was then a vacant lot, to Mr. Fincher and his wife.
In any event, 'very shortly' after the property was deeded to the plaintiff and his wife, a house was built. Plaintiff's evidence was that Mrs. England 'had the (house) plan,' and 'I hired the men that built it.' Defendant's position was, and she offered to prove, that she expended some $9,000 in building the house and improving the premises generally. After the house was finished, plaintiff, his wife and the defendant entered into a written contract whereby Mrs. England agreed to buy the property for $12,000. The contract, dated December 30, 1958, provides that the purchase price is to be paid $500 per year, with interest at the rate of six per cent, payable semi-annually.
Though the record is difficult to follow chronologically, it appears that Mrs. England left Lebanon and went to Oregon in 1961. Several letters which the defendant offered in evidence indicate that Mr. Fincher inquired when she would return, and requested that she either pay some of her debt to him or 'send me the key or send it to anyone you would risk with it. * * *' The last of these letters is dated January 24, 1962. Apparently Mrs. England made no response, for in July 1962 this action was begun.
Plaintiff's petition is somewhat unusual in that he bases his right to possession upon the covenants and conditions of the contract of sale, but it is legally unexceptionable. In her answer, defendant admitted execution of the contract, but pleaded further that '* * * assuming the parties intended to be bound by (the contract), which plaintiff (sic) denies, the parties subsequently modified (the contract) by oral agreement in the following respects: That during the summer of 1960, the exact date being unknown by defendant, plaintiffs and defendant agreed that defendant could live in the house * * * as long as she wanted to do so and that defendant would never have to pay to the plaintiffs any monies and that plaintiffs would execute their general warranty deed to said premises to the defendant as soon as plaintiff Amos Fincher could secure plaintiff Nettie Fincher's signature on such a deed; and that in reliance upon said modified agreement and as partial consideration therefor, this defendant expended monies and labor on said premises and has continued to improve said premises.'
No further action was taken in the case until February 5, 1968, when it was 'transferred to the inactive docket' pursuant to local rule. In November 1968, by agreement, it was restored to the docket for trial on February 3, 1969. In February 1969 Mrs. Fincher's death was suggested, and in April 1969 the case was again transferred to the inactive docket. It was again set for trial in May 1969. In December 1969, defendant moved to 'amend the prayer of her answer,' so as to seek specific performance of the oral contract she had set up defensively in her answer. Plaintiff filed a reply, and moved to strike the allegation of oral modification of the contract from the answer. On December 10, 1969, the case was called, the motion to strike was taken with the case, and on December 17 the matter was finally heard.
It would serve no useful purpose to abstract and repeat all the trial proceedings. Counsel for defendant, in an opening statement, outlined the proof he expected to present. In support of her pleaded defense, and the counterclaim she had asked leave to file, defendant offered to prove, essentially: (1) a long course of dealing between plaintiff Amos Fincher and Mrs. England prior to the execution of the contract of sale; this was offered to show that Mr. Fincher had on several occasions loaned or given Mrs. England money without any expectation of repayment; (2) that the contract of sale was in fact a sham to conceal the nature of Mr. Fincher's relationship with defendant from his wife; (3) that in July 1960 Mr. Fincher had told Mrs. England she would never have to pay anything on the contract, and that as soon as he could persuade Mrs. Fincher to do so he would release Mrs. England and deed the property to her; and (4) that, relying on this promise, defendant had spent approximately $12,000 on the property. In order to 'make his position clear,' counsel for plaintiff objected to the reception of any of this proof. Without elaborating at this point, we may say that at various times during the trial defendant made offers to prove the matters outlined in her opening statement, and these offers were, for the most part, refused by the trial court.
Plaintiff's proof was brief, but in our view it was sufficient to establish the elements of his case. He exhibited a warranty deed to the property involved and a copy of the contract of sale; he testified that no payment had ever been made under the contract, despite repeated demands. He testified that the reasonable rental value of the property was $75 per month. Mrs. England also testified; she stated that the reasonable rental value of the property was $50 per month, but she did not dispute the plaintiff's legal title nor claim that she had paid the balance due under the contract according to its terms. At the conclusion of the trial, the court entered a judgment...
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Hawkins v. Missouri State Emp. Retirement System
...the procedural aspects makes it unnecessary for us to pursue in this case what seems to be an interesting conflict between Fincher v. England, Mo.App., 463 S.W.2d 82, Hawkins v. Hawkins, Mo.App., 462 S.W.2d 818 and cases cited therein, on the one hand, in contrast to the decisions on the ot......
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State v. Warren
...in part, the trial court is justified in rejecting the entire offer. Lott v. Kjar, 378 S.W.2d 480, 484 (Mo.1964); Fincher v. England, 463 S.W.2d 82, 86(7) (Mo.App.1971). Put differently, it is for the proponent to sever the good and the bad parts of the offer. 1 H. Wigmore, Evidence § 17, p......
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State ex rel. Ciaramitaro v. City of Charlack
...540 S.W.2d 151, 152 (Mo.App.1976). Respondent's reliance on Adams v. Richardson, 337 S.W.2d 911, 915 (Mo.1960) and Fincher v. England, 463 S.W.2d 82, 86 (Mo.App.1971) is misplaced. Adams and Fincher were each decided before Rules 73.01 and 78.07 (previously Rule 79.03) was amended in 1974 t......
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Williamson v. Epperson
...was justified in rejecting the whole offer of proof, as it did. Lott v. Kjar, 378 S.W.2d 480, 483--484(1) (Mo.1964); Fincher v. England,463 S.W.2d 82, 86(7) (Mo.App.1971). Plaintiffs' further complaint is that the trial court erred in submitting Steven Williamson's failure to keep a careful......