Fulton v. Bailey

Decision Date10 April 1967
Docket NumberNo. 52076,No. 2,52076,2
Citation413 S.W.2d 514
PartiesWilliam D. FULTON and Elizabeth Hattie Fulton, Respondents, v. Ruth L. BAILEY, Appellant
CourtMissouri Supreme Court

James E. Grier, David E. Kinton, Kansas City, for respondents, Brewer & Myers, Kansas City, of counsel.

Donald K. Hoel, John T. Martin, Kansas City, for defendant-appellant, Shook Hardy, Ottman, Mitchell & Bacon, Kansas City, of counsel.

PRITCHARD, Commissioner.

The initial inquiry here is whether there exists a final, appealable order of the trial court. The action is one for damages for breach of a countract to sell real estate. At the close of the evidence, plaintiffs moved for direction of the verdict as to defendant's liability under the contract, and for submission to the jury only the question of damages for the breach of the contract. The motion was denied, and all issues of the cause were submitted to the jury. The jury returned a verdict for defendant, and the court entered judgment in accordance with the verdict for defendant.

Plaintiffs timely filed their motion for judgment in accordance with their motion for directed verdict. § 510.290, RSMo 1959, V.A.M.S. Alternatively, a motion for new trial was included. Civil Rule 72.02, V.A.M.R. The transcript shows the following order:

'Thereafter, and on the 28th day of February, 1966, the plaintiffs' motion to set aside verdict and judgment and to enter judgment for plaintiffs in accordance with their motion for directed verdict at the close of all the evidence, except as to the issue of damages, was by the court sustained.

'If this court's ruling on the motion for judgment is reversed, then the alternative motion of plaintiffs for new trial shall be by the court overruled.

'WHEREFORE, it is ordered and adjudged by the court that the judgment, heretofore entered herein, that plaintiffs take nothing by this action in their behalf as to the defendant Ruth Bailey be and the same is hereby set aside and for naught held.'

Note that the after-trial order granted plaintiffs' motion for judgment in accordance with their motion for directed verdict made at the close of the case. The effect is that plaintiffs have judgment upon the issue of liability. Defendant being aggrieved by that order and judgment (and taking away her own judgment) has a right of appeal under § 512.020, RSMo 1959, V.A.M.S., providing that 'Any party to a suit aggrieved by any judgment of any trial court in any civil cause * * * may take his appeal to a court having appellate jurisdiction from any order granting a new trial * * * or from any final judgment in the case or from any special order after final judgment in the cause; * * *.' (Italics added.) It has been held by this court on several occasions that a party may appeal from an order granting a new trial on the issue of damages only. Page v. Jamilton, Mo., 329 S.W.2d 758, 762(3) (a new trial awarded defendant upon the issue of damages only, for which defendant (Hamilton) did not ask); Snyder v. St. Louis Public Service Company, Mo., 329 S.W.2d 721, 723 (a new trial awarded defendant upon this issue of liability only); Stith v. St. Louis Public Service Co., 363 Mo. 442, 251 S.W.2d 693, 695(5), 34 A.L.R.2d 972 (a new trial on the issue of damages awarded defendant, for which neither it nor plaintiff asked; both parties, being aggrieved, could appeal). See also Bubke v. Allied Building Credits, Inc., Mo.App., 380 S.W.2d 516, 518(1). The orders from which defendant here seeks relief are appealable. The general rule that a judgment to be final and appealable must dispose of all parties and all issues in the case and leave nothing for future determination, Pizzo v. Pizzo, 365 Mo. 1224, 295 S.W.2d 377, 379, is not here applicable in the face of § 512.020, supra, and cases above cited.

The next consideration is whether the court properly took away defendant's judgment (based upon a general verdict for her) and entered a judgment for plaintiffs upon the issue of liability under the initial contract. That was a 'short-form' real estate contract signed by both parties. Plaintiffs say that the trial court did not err in sustaining their after-trial motion, and entering judgment for them, because the short-form contract is a valid and binding agreement, and parol evidence is not admissible to vary or extend its terms. On the other hand, defendant says that the short-form document is not as a matter of law an enforceable agreement; that it did not contain all essential terms for a contract of sale of real estate; that the parties did not intend the writing sued upon to be the final written memorial of their agreement; and that parol evidence is admissible to show a mistaken omission and to show lack of intention that the writing was to be the final written memorial of their agreement. The issue is thus joined as to whether, on the basis of the short-form contract, plaintiffs were entitled to direction of the verdict upon the issue of defendant's liability as a matter of law.

The short-form contract sued upon by plaintiffs is dated July 19, 1962, at Kansas City, Missouri, and is addressed to the Souders Realty Company. That company is authorized to submit an offer on behalf of Ruth L. Bailey (defendant) to purchase the W. D. Fulton property at 5930 Ward Parkway in Kansas City for $78,500, payable: '$8,000.00 earnest money submitted herewith. For the balance of the purchase price the buyers agree to execute their note secured by a First Deed of Trust on the above property and a mortgage on the buyers property at 6837 Brookside (in favor of the sellers) in the amount of $70,500.00 payable as follows: $500.00 or more per month beginning Movember 1, 1962 and bearing interest of 6% with $20,000.00 becoming due and payable November 1, 1963 and then $500.00 per month or more bearing 6% interest with $25,000.00 becoming due and payable November 1, 1964: and then $500.00 or more per month and bearing 6% interest with entire balance becoming due an payable November 1, 1965. Within three days following acceptance of this offer all parties hereto agree to execute a formal contract according to the price and terms set forth above. This offer shall remain in effect and be irrevocable until: (Date and Hour left blank).' This document was signed by Ruth L. Bailey, and the names of J. T. Bailey and Orpha B. Bailey appear thereon (defendant testified that she signed her parents' names to the form) and 'Accepted July 20, 1962 W. D. Fulton (and) Elizabeth Hattie Fulton his wife.' Payment was stopped on defendant's $8,000 check, No. 108, dated July 19, 1962, payable to Souders Realty Company, drawn on the Traders National Bank, Kansas City, Missouri.

Ordinarily, in this state a verdict may not be directed for a party having the final burden of proof. Coleman v. Jackson County, 349 Mo. 255, 160 S.W.2d 691, 693(2), and cases cited, notably the leading case of Cluck v. Abe, 328 Mo. 81, 40 S.W.2d 558, 559. In the Coleman case the court set forth the exception to the aforesaid rule: 'If the opponent, that is the party not having the burden of proof, admits either in his pleadings or by counsel in open court or in his individual testimony on the trial the truth of the basic facts upon which the claim of the proponent rests, a verdict may be directed against him, and if the proof is altogether of a documentary nature and the authenticity and correctness of the documents are unquestioned, and if such proof establishes beyond all doubt the truth of facts which as a matter of law entitled the proponent to the relief sought, and such proof is unimpeached and uncontradicted, the proponent will be entitled to a peremptory instruction. This is upon the theory that there is no question of fact left in the case and that upon the question of law involved the jury has no right to pass. (Citing cases).'

Here, defendant's answer to plaintiffs' petition for damages admitted that on July 19, 1962, she and an agent of plaintiffs did discuss a proposed offer to purchase the 5930 Ward Parkway property; denied that 'Exhibit A' (the alleged short-form contract) attached to plaintiffs' petition is a contract; and denied each and every other allegation contained in plaintiffs' petition, except express admissions in the answer. Neither did counsel for defendant admit the alleged contract as being valid. Plaintiffs contend not only that the short-form contract identified the parties, subject matter, and stated the promises of both plaintiffs and the defendant, the consideration and the price (citing Ray v. Wooster, mo., 270 S.W.2d 743, 751, for those essential terms) and was an enforceable contract, but that defendant's own testimony was insufficient to support her defenses.

The question is whether parol evidence is admissible to show that the parties did not intend to be bound by the initial short-form real estate contract. Defendant's testimony (to which there was no objection) relative to the execution of the short-form contract is that after her first offer was rejected Mrs. Nellie Lee (saleslady for Souders Realty Company, and agent for sellers, the plaintiffs) called her and asked that she come to her apartment, which defendant did. Mrs. Lee informed her that a first offer had been turned down by Mr. Fulton and that a new offer would be for $78,500 with an $8,000...

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14 cases
  • Byrd v. Brown
    • United States
    • Missouri Court of Appeals
    • February 27, 1981
    ...all issues in the case and leave nothing for future determination ... is not here applicable in the face of § 512.020." Fulton v. Bailey, 413 S.W.2d 514, 515 (Mo.1967). Also see Travagliante v. J. W. Wood Realty Company, 425 S.W.2d 208 (Mo.1968). In general the orders and judgments specific......
  • Hawkins v. Cockroft, 17914
    • United States
    • Missouri Court of Appeals
    • March 5, 1993
    ...are to RSMo 1986, V.A.M.S.2 "[A] party may appeal from an order granting a new trial on the issue of damages only." Fulton v. Bailey, 413 S.W.2d 514, 515 (Mo.1967). See § 512.020; Page v. Hamilton, 329 S.W.2d 758, 762 (Mo.1959); Stith v. St. Louis Public Service Co., 363 Mo. 442, 251 S.W.2d......
  • Reed Schmidt & Associates, Inc. v. Carafiol Furniture Co.
    • United States
    • Missouri Court of Appeals
    • May 25, 1971
    ...did not obtain all the relief it had asked and was, therefore, aggrieved and entitled to appeal from the trial court's order. Fulton v. Bailey, Mo., 413 S.W.2d 514; Page v. Hamilton, Mo., 329 S.W.2d 758; Snyder v. St. Louis Public Service Co., Mo., 329 S.W.2d Defendant asserts that Instruct......
  • Travagliante v. J. W. Wood Realty Co.
    • United States
    • Missouri Supreme Court
    • March 11, 1968
    ...in the case and leave nothing for future determination is not applicable. The portion of § 512.020 last quoted governs. Fulton v. Bailey, Mo.Sup., 413 S.W.2d 514(1). Wood Realty had a right to appeal the order granting plaintiffs a new trial notwithstanding there were other counts remaining......
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