Glass v. Mancuso

• Decision Date: 14 July 1969
• Docket Number: No. 1,No. 53916,53916,1
• Citation: 444 S.W.2d 467
• Parties: Charlotte CLASS, Executrix of the Estate of Max Glass, Deceased, and Richard Glass, Respondents-Plaintiffs, v. Helen MANCUSO, Administratrix of the Estate of Dan Mancuso, Deceased, Appellant-Defendant, A. Glenn Sowders, Robert D. DeWitt, J. L. McHugh Co., Inc., and Altman-Singleton & Co., a Corporation, Defendants
• Court: Missouri Supreme Court

Page 467

444 S.W.2d 467

Charlotte CLASS, Executrix of the Estate of Max Glass Deceased, and Richard Glass, Respondents-Plaintiffs, v. Helen MANCUSO, Administratrix of the Estate of Dan Mancuso Deceased, Appellant-Defendant A. Glenn Sowders, Robert D. DeWitt, J. L. McHugh Co., Inc. and Altman-Singleton & Co., a Corporation, Defendants.

No. 53916.

Supreme Court of Missouri, Division No. 1.

July 14, 1969.

Modified on Court's Own Motion Sept. 8, 1969.

Motion to Modify, for Rehearing or to Transfer to Court En

Banc Denied Sept.

8, 1969.

Arnold N. Shanberg, Rope, Shanberg & Rope, Kansas City, for respondents.

A. Glenn Sowders, Jr., Kansas City, for appellants.

FRANKLIN FERRISS, Special Judge.

This is an appeal from a declaratory judgment which adjudged that a written contract relating to the sale of a restaurant in Kansas City had not been fully executed on October 13, 1965, when a fire gutted the restaurant premises. The lower court held that the seller, the Estate of Dan Mancuso, still held title to the restaurant at the time of the loss and ordered the purchase price returned to the buyer. The Mancuso Estate appealed from this order.

On April 29, 1965, Dan Mancuso died and in due course his widow, Helen Mancuso, was appointed administratrix of his estate, the chief asset of which consisted of Mancuso's Gondola Restaurant, located for many years at 229 West 75th Street in Kansas City. The estate had many creditors and J. L. McHugh, an experienced realtor, was engaged by the administratrix to sell the restaurant as a going business. To keep the restaurant in business pending a sale, Dan Mancuso's son, Ronald, quit his job and took over the operation of the restaurant. Another restauranteur, Max Glass, contacted Mr. McHugh in response to an ad placed by Mr. McHugh, and the upshot was that Max Glass signed a printed realtor's form in which as 'Buyer' he made 'the following offer to purchase the business located at 229 West 75th Street known as Mancuso's Gondola Restaurant, for the sum of $28,500.00, payable as follows: $2,850.00 at the signing of this contract, $25,650.00 to be paid at the closing of the deal, the said business consisting of all fixtures and equipment. Possession on or before September 15, 1965 * * * The Sellers agree to deliver possession free and clear of all liens, judgments or encumbrances and of good title except chest of drawers, statue, pictures.' The realtor, J. L. McHugh, signed the printed form to evidence having received 'a deposit' of $2,850.00, and on August 16, 1965, Helen Mancuso, Administratrix, affixed her signature as the 'Seller'.

The trial court received parol testimony as to the meaning of the above-described contract. All witnesses testified that the contracting parties intended to buy and to sell a going business, and not a collection of fixtures and equipment. Most witnesses also testified that the parties understood that before consummating the sale the Buyer would have to secure a long term lease on the premises at 229 West 75th Street. In addition, according to the heavy weight of the testimony, both parties understood that the Buyer intended to sell liquor as well as food, just as Dan Mancuso had done, and hence would have to secure City and State liquor licenses before consummating the sale.

The sale contract itself made no reference to the Buyer's obtaining a lease on the premises or liquor licenses. Neither did it set any date for 'closing the deal', although the provision for 'possession on or before September 15, 1965' suggests that September 15, 1965, was the date when the parties intended to conclude the transaction. Glenn Sowders, attorney for the Seller (the Mancuso Estate), testified the closing was postponed from September 15 to October 1 at the Buyer's request. During this additional time Max Glass obtained a supplemental Lease Agreement by the terms of which (1) Helen Mancuso, as Administratrix of her husband's estate, assigned to Max Glass the interest of said estate as Lessee of the premises at 229 West 75th Street to September 30, 1968, and (2) the owner of said premises consented to said assignment and extended said lease for an additional seven years, with the monthly rent to be increased during said additional seven years by a percentage of the monthly gross sales of the restaurant. Sales of liquor had been averaging about 30% of gross sales, which explains why the supplemental Lease Agreement contained a proviso that it was 'subject to and contingent upon Lessee obtaining a liquor license from the State of Missouri and the City of Kansas City, Missouri.' Glenn Sowders, attorney for Helen Mancuso, Administratrix, was aware of this proviso at the time the supplemental Lease Agreement was signed on September 20, 1965.

On September 21, 1965, Glenn Sowders wrote a letter to Robert DeWitt, the then attorney for the Buyer, Max Glass, itemizing all the documents that would be needed in order to obtain the required liquor licenses. With the help of this letter, Max Glass' son, Richard Glass, took responsibility for gathering together and submitting all the various documents required by the Kansas City and State of Missouri Liquor Control authorities. Richard Glass was actually going to operate the restaurant, so the applications for the licenses were in his name. This meant that he had to furnish a picture of himself and be finger-printed. A picture of the building at 229 West 75th Street was also required. By October 1st Richard Glass had submitted to the Liquor Control authorities everything he was told that they required.

On October 1, 1965, Richard Glass persuaded Ronald Mancuso to turn over to him the keys to the premises so that he could get started on the remodeling of the premises. Ronald was somewhat reluctant to do this, as he knew the balance of the purchase price had not yet been paid, but Richard told him that if the sale fell through, the Glasses would restore the premises and even leave it in better shape than it was. On taking possession, Richard at once started cleaning and remodeling the premises. He also sent the owner a check for the October rent.

With the Buyer in possession of the restaurant, the Mancuso's lawyer, Glenn Sowders, became increasingly uneasy. Several times he phoned Richard Glass and Charles DeWitt, the attorney for Richard and Max Glass, about getting the balance of the purchase price paid. On October 7, 1965, he demanded that the balance be paid or all remodeling would have to cease. That same day Richard Glass delivered a check for the balance to DeWitt, who agreed to deposit the check in a joint account with Sowders to be used to pay off claims against the Mancuso Estate. Also on October 7 Max Glass met with an insurance agent, Altman, and placed with his company, Altman--Singleton & Co., a verbal order for fire and extended coverage and business interruption insurance on the restaurant property.

The following day, October 8, Sowders presented DeWitt with a letter spelling out the terms on which the balance of the purchase price would be deposited in their joint names as trustees for their respective clients. DeWitt got his client, Max Glass' approval of this letter, signed the letter and gave Sowders his client's check for $25,650.00, representing the balance of the purchase price, which was deposited in a joint savings account from which withdrawals required signatures of both Sowders and DeWitt. At the same time, Sowders gave DeWitt a copy of a Probate Court Order approving the sale of the restaurant by Mrs. Mancuso as Administratrix and a bill of sale to the restaurant signed by Mrs. Mancuso.

The text of said letter is so important to the issues in the case that it is here quoted in full:

'A. GLENN SOWDERS, JR.

Attorney at Law

615 John Hancock Building

800 West Forty-Seventh Street

Kansas City, Missouri 64112

October 8, 1965

Mr. Robert D. DeWitt

450 Professional Building

1103 Grand Avenue

Kansas City, Missouri

Re: Richard's Steak House Estate of Dan Mancuso

Dear Bob:

'This letter summarizes our agreement with reference to the purchase price for Mancuso's Gondola Restaurant, 229 West 75th Street, Kansas City, Missouri. Your client, Mr. Max Glass and Mr. Richard C. Glass have agreed to pay $28,500 and have deposited $2,850 with Mr. J. L. McHugh as down payment. The balance thereof in the amount of $25,650 is being placed in an account in the name of 'Estate of Dan Mancuso and Richard's Steak House' with authorized signatories by yourself and me as trustees. This is to be a savings account in Empire State Bank, and it is agreed that the interest earned on this savings account shall become the sole property of the Estate of Dan Mancuso.

'You agree to release this account upon presentation to (sic) of a full and complete list of creditors who have filed claims against the Estate of Dan Mancuso within the six month period after the date of death of Dan Mancuso. This is for the reason that all claims filed within six months after the date of first publication of notice of granting of letters on the estate are preferred claims, and will be paid after funeral expenses, debts including taxes and judgments rendered against the estate.

'I hand you herewith an executed bill of sale and a certified copy of the court order authorizing sale of Mancuso's Gondola Restaurant to Max Glass and Richard C. Glass. By your signature hereon, you acknowledge receipt of these items. 'Upon deposit of the funds aforesaid, we agree to commence payment of all current bills incurred from and after the date of death of Dan Mancuso, and to do all things necessary to pay current claims. As I have indicated to you previously, Mrs. Mancuso is advancing monies to the estate in order that all the current bills may be paid. As soon as we have received verification of the amounts at September 30, 1965 (the close of business for Mancuso's Gondola Restaurant) I will furnish a complete list to you. In the meantime, enclosed is a list...