George Tebeau v. Thomas S. Ridge, . George Tebeau, v. Thomas S. Ridge And Effie Ridge

• Decision Date: 17 November 1914
• Parties: GEORGE TEBEAU v. THOMAS S. RIDGE, Appellant. GEORGE TEBEAU, Appellant, v. THOMAS S. RIDGE and EFFIE RIDGE
• Court: Missouri Supreme Court

170 S.W. 871

261 Mo. 547

GEORGE TEBEAU v. THOMAS S. RIDGE, Appellant. GEORGE TEBEAU, Appellant, v. THOMAS S. RIDGE and EFFIE RIDGE

Supreme Court of Missouri

November 17, 1914

Appeal from Jackson Circuit Court. -- Hon. John G. Park, Judge.

Reversed and remanded (with directions).

Hadley Cooper, Neel & Wilson, Boyle & Priest and Scarritt, Scarritt Jones & Miller for plaintiff-appellant.

(1) Defendant contends that the petition does not state a cause of action because as he says, "there is no allegation in it that the appellant was the owner of the land described." There is no merit in this contention. Sayre v. Devore, 99 Mo. 446; R. S. 1909, sec. 1836; Pomeroy v. Fullerton, 113 Mo. 440. (2) Specific performance of an optional agreement to sell real estate will be enforced by a court of equity. Kirkpatrick v Pease, 202 Mo. 493; Real Estate Co. v. Spelbrink, 211 Mo. 67; Woodbury v. Gardner, 77 Me. 69; Couch v. McCoy, 138 F. 696; Watts v. Kellar, 56 F. 1. (3) The option to purchase here in question is an integral part of a contract of lease. Every consideration expressed in the lease is a consideration for each and every stipulation of the agreement. The option stipulation should not be criticised by defendant on account of the place it occupies in the body of the written contract, for the instrument was written by Ridge himself and under the well known rules applicable where an agreement is drawn by one of the parties thereto, it is to be construed most strongly against the one that drew it. Surety Co. v. Pauley, 170 U.S. 133; Wilson v. Cooper, 95 F. 225; Hurley v. Fidelity Co., 95 Mo.App. 94. The evidence is uncontradicted that Ridge expressly demanded, in consideration of his agreeing to give the option of purchase in the lease, that he be given free access to, namely, passes, to the baseball park; and in accordance therewith he wrote in the lease the following: "Said Ridge to have free access to said premises on all occasions." This part of the agreement was fully complied with by Tebeau, for he not only gave passes to Ridge but he also gave passes to the ball park to members of Mr. Ridge's family. This alone is a sufficient consideration for the option to purchase. It is not necessary, however, to stand upon this alone, for the authorities are many and conclusive to the effect that the making of the lease and the things therein required to be performed by the lessee, such as the payment of rent, are a sufficient consideration for an option to purchase expressed in the lease. Jones on Landlord and Tenant, sec. 387; 18 Am. & Eng. Ency. Law (2 Ed.), 631; Hayes v. O'Brien, 149 Ill. 403, 23 L. R. A. 555; Souffrain v. McDonald, 27 Ind. 269; In re Hunter, 1 Edwards' Ch. (N.Y.) 1; Stansbury v. Fringer, 11 Gill & J. (Md.) 149; 24 Cyc. 1021; Monihon v. Wakelin, 6 Ariz. 225; McCormick v. Stephany, 61 N. J. E. 208. (4) Of course we deny that Ridge had any right or power by his ipso dixit to annul this stipulation of the contract or, in other words, withdraw this express option to purchase. And if our contention is sustained, viz., that the stipulation relative to the purchase of the land was one of the mutual or reciprocal stipulations between the parties that constituted a part of the consideration for the others, then it is immaterial whether Ridge attempted to withdraw from it or not. (5) Upon the court ordering specific performance by defendant Thomas Ridge, plaintiff is entitled to a diminution of the purchase price, for Ridge's wife refuses to convey or relinquish her inchoate right of dower.

Johnson & Lucas for defendant-appellant.

(1) The petition does not state a cause of action. Anderson v. Gaines, 156 Mo. 669; Gentry v. Rodgers, 40 Ala. 446; Mallinckrodt v. Nemnich, 169 Mo. 397. (a) There is no allegation in it that the appellant was the owner of the land described. (b) The allegation "that plaintiff has faithfully complied with and performed all the terms, covenants and agreements therein contained, and binding or obligatory upon him up to the time of the institution of this suit" is meaningless, because it leaves wholly to conjecture what parts of the contract plaintiff means to say are binding on him. It is not equivalent to saying that plaintiff has kept all the terms of the agreement on his part, and if it were it would not be sufficient. In a suit for specific performance, plaintiff should state specifically and minutely what he has done. (2) The decree is erroneous on the face of the record. Baldwin v. Whaley, 78 Mo. 186; Needles v. Ford, 167 Mo. 512; Schneider v. Patton, 175 Mo. 684; Roden v. Helm, 192 Mo. 71. (a) The court does not find, and could not properly find that appellant was the owner of the land described in the petition, because this is not alleged as a fact in the petition. (b) The court finds that appellant had knowledge that said land was being obtained for a baseball park. There is no such allegation in the petition. (c) The court finds that respondent complied with and performed all the terms, covenants and agreements contained in said agreement and binding or obligatory on him. This finding follows the petition. It meant nothing in the petition and means nothing here. No determination is made as to what covenants were binding on respondent, if any. (d) The court finds that respondent entered upon the said land under said agreement and made valuable and permanent improvements thereon. No allegation in the petition supports this, nor was respondent required by the lease to make any improvements. (e) The court finds that appellant insisted upon free access to the ground as one of the conditions of dealing. This is not alleged in the petition. (f) The court fails to find that defendant had no adequate remedy at law, and properly so, because although this was alleged in the petition, there was no proof of it offered. Yet if plaintiff had an adequate remedy at law, he was not entitled to a decree. (3) The finding and judgment of the court is contrary to the evidence. 1 Page on Contracts, sec. 41; Turner v. Mellier, 59 Mo. 536; Mers v. Ins. Co., 68 Mo. 127; Warren v. Costello, 109 Mo. 344; Hollman v. Conlon, 143 Mo. 378; Daly v. Carthage, 143 Mo. 569; Davis v. Petty, 147 Mo. 374; Elliott v. Delaney, 217 Mo. 19; Richardson v. Hardwick, 106 U.S. 252; Philpot v. Gruninger, 14 Wall. 570; Railroad v. Bartlett, 3 Cush. 224; Railroad v. Deane, 43 N.Y. 240; Brown v. Savings Union, 134 Cal. 452; Martin v. Coudrey, 110 P. 451; Gordon v. Darnall, 6 Col. 302; Ford v. Ecker 86 Va. 79; Houts v. Hillman, 228 Mo. 668; Gottfried v. Bray, 208 Mo. 663; Cady v. Straus, 97 Va. 707; Kirby-Carpenter Co. v. Barnett, 144 F. 637.

FARIS, J. Lamm, C. J., and Graves, Brown and Walker, JJ., concur; Bond, J., dissents; Woodson, J., dissents for reasons given in the principal opinion in Aiple-Hemmelmann Real Estate Co. v. Spelbrink, 211 Mo. 671.

OPINION

FARIS

In Banc

FARIS J. -- Suit from Jackson county, in equity, for specific performance of a contract to convey land. Tebeau (hereafter called plaintiff to distinguish him, since the case is here on cross-appeals) had a decree against Thomas S. Ridge, hereafter called defendant, but upon the refusal of the court nisi to diminish the purchase price by the value of the inchoate dower of Effie S. Ridge, wife of defendant Thomas S. Ridge, hereafter called Mrs. Ridge, said Tebeau appealed.

The status of these appeals, which have been consolidated by stipulation, is, then, that defendant is appealing as against plaintiff, for that the latter obtained any decree whatever; while plaintiff is appealing as against Mrs. Ridge for whom the court found, for that no diminution was decreed to him for the inchoate dower of Mrs. Ridge. The latter does not appeal.

The learned trial court made and filed his findings of fact, which throw much light upon the case made and are, besides, the subject of criticism leveled at them by defendant. For the latter reason and since they succinctly set out the facts and greatly shorten our statement, we set them out, as follows:

"The court being fully advised in the premises, doth find the issues in favor of the plaintiff and against the defendant Thomas S. Ridge, and doth further find from the proofs and evidence that the allegations of fact in plaintiff's petition are true; that the defendants, Thomas S. Ridge and Effie S. Ridge, are and were at all the times herein referred to husband and wife; that on or about December 31, 1901, the plaintiff and defendant Thomas S. Ridge, for value received and in consideration of the mutual agreements and covenants therein contained and the rents therein reserved, entered into, executed and delivered each to the other, a written agreement in words and figures following, to-wit:

"'This Article of Agreement Witnesseth: That Thomas S. Ridge has this day rented to George Tebeau in the present condition thereof the tract of ground bounded by Olive street on the west, Twentieth street on the south, Prospect avenue on the east and the line of the Kansas City Belt Line Railway on the north in Kansas City, Missouri.

"'It is understood by the clause which follows relative to subleasing that said Tebeau shall have the right to rent the above described premises to others for occasional unobjectionable entertainments.

"'Said Ridge to have free access to said premises on all occasions.

"'Said Tebeau shall have the option of purchasing said property during the first year of this lease at and for the price of $ 30 per front foot on Olive, Wabash and Prospect streets, during the second year at $ 35, after the second year and until the fifth year at $ 40 per foot, and between the fifth and tenth year at and for the price of $ 50 per front foot as above measured on the three streets frontage; for the period of ten years...