Gottlieb v. Hyken

• Decision Date: 12 January 1970
• Docket Number: No. 1,No. 54315,54315,1
• Citation: 448 S.W.2d 617
• Parties: David GOTTLIEB, Plaintiff-Respondent, v. Carl R. HYKEN, Defendant-Appellant
• Court: Missouri Supreme Court

Page 617

448 S.W.2d 617

David GOTTLIEB, Plaintiff-Respondent, v.Carl R. HYKEN, Defendant-Appellant.

No. 54315.

Supreme Court of Missouri, Division No. 1.

Jan. 12, 1970.

David Skeer, Sheffrey, Ryder & Skeer, Kansas City, of counsel, for respondent.

Arthur J. Kase, Rubins, Kase & Rubins, Kansas City, for appellant.

G. DERK GREEN, Special Judge.

Plaintiff sued defendant for an alleged breach of oral contract.A jury trial resulted in a verdict in favor of plaintiff for $20,285 and from the final judgment thereon in that amount, defendant appeals.

In July, 1966 and for some years prior thereto, each of the parties had been engaged in the real estate business in Jackson County Missouri.They had known each other socially for several years and had engaged in business transactions in which both were interested.Prior to July 12, 1966, plaintiff was the owner of a one-half interest in an apartment building in Kansas City known as the Melbourne Apartments, and there had been negotiations between the parties looking toward a sale of plaintiff's interests in that apartment building to the defendant.An agreement was apparently reached, and plaintiff had his attorney prepare a written form of contract undertaking to express that agreement.By this agreement, the plaintiff was to transfer to defendant his interest in the Melbourne Apartments and defendant was to make transfers of certain personal properties to the plaintiff.Defendant was to transfer to plaintiff stock in the Dacar Company, Inc., a promissory note executed by William H. and Katherine Brown, a promissory note executed by Elinor R. Henry(both with recourse) and a promissory note executed by Myron and Ruby Kimber, without recourse, referred to by the parties as the Kimber note in the original amount of $23,003.88.The contract as prepared by plaintiff's attorney was in form to be signed by plaintiff, by defendant and by the defendant's wife.The parties met in plaintiff's office on July 12, 1966 and each signed this agreement.It is at this point that a factual dispute arises.Plaintiff contends and testified at the trial that there was no complete execution of the written contract because defendant's wife did not sign and defendant would not have his wife sign the contract.Plaintiff contends that the written contract was then abandoned, and it was proposed that they would go ahead with the deal on the same terms without the wife's signature if the defendant would pay to the plaintiff the sum of $21,825.57, the amount of money represented by the Kimber note, instead of assigning that note.He testified that defendant agreed to this and that the signature of defendant's wife would not then be needed.It is upon this alleged oral agreement that plaintiff sued.

Defendant's answer admitted the allegations of the petition with reference to the ownership of the Melbourne Apartments and then denied 'each and every allegation in plaintiff's Amended Petition not otherwise admitted herein.'For a further defense, the defendant alleged a complete execution of the written agreement on July 12, 1966 referred to in plaintiff's Amended Petition, and stated that all of the conditions of said written agreement had been fully performed.

In any event, plaintiff thereupon on July 12, 1966 transferred to defendant his interest in the Melbourne Apartments by delivery of deed, and defendant transferred and delivered to the plaintiff the items of personal property mentioned to be transferred in payment other than the Kimber note, the delivery of which is disputed.Plaintiff testified that pursuant to the oral agreement, defendant did not transfer to him the Kimber note but retained it and took it with him.Defendant contends and testified at the trial that there was no oral agreement, that the written agreement was the only agreement made, and that in compliance with it he endorsed and transferred the Kimber note to plaintiff at that time.Other evidence was given as to how the Kimber note was handled thereafter, but this is only in corroboration of, or explanation of, the testimony of the parties as to the original transaction.It would serve no useful purpose to relate those details here.

Defendant asserts error in the giving of InstructionNo. 3, which is the verdict-directing Instruction for plaintiff and in the giving of InstructionNo. 5, which is the measure of damages.He also asserts as ground for a new trial that the verdict and judgment was not supported by the pleadings or the evidence but was in excess of that pleaded or proved.InstructionNo. 3 is as follows: 'Your verdict must be for the plaintiff if you believe: First, the plaintiff sold an undivided one-half of the property known as the Melbourne Apartments to the defendant; and Second, at the time of such sale, the defendant agreed to pay plaintiff cash instead of the Kimber note as part of the price for said property; and Third, defendant has failed to pay a part of the cash price he agreed to pay for said property; and Fourth, plaintiff was thereby damaged.'Defendant contends that this Instruction did not hypothesize the essential facts of the oral agreement as pleaded or proved and submitted issues in part contrary to the evidence and the pleadings.

Concerning the part of the transaction regarding the Kimber note, the plaintiff's petition alleged 'that in addition thereto defendant would pay to plaintiff the sum of $21,825.57 plus interest thereon in the total sum of $6,555.22 in equal monthly installments for 110 months.'The defendant contends that the language of the Instruction that 'the defendant agreed to pay plaintiff cash instead of the Kimber note' is at variance with the language of the petition and that the Instruction at no point requires the finding that an oral agreement was entered into and that a finding is not required upon the other terms alleged to have been in the oral agreement.Defendant's position is that having denied the oral agreement alleged by plaintiff, it was incumbent upon plaintiff to prove each and every allegation with reference thereto and all of the terms thereof as set out in the petition, and that the jury should have been required in this verdict-directing instruction to make a finding upon each and every part of the oral contracts as alleged by plaintiff.On this point, defendant cites Deisel-Wemmer-Gilbert Corp. v. David Chalmers T. Co., 231 Mo.App. 631, 104 S.W.2d 1029, and other cases of similar import.In this case, it was stated that '(i)t was necessary, since the defendant had pleaded an express oral contract, that it should have proven the same as pleaded and that such instruction should have submitted such contract as pleaded.'The court there referred to 'the ordinary rule to the effect that it is not necessary to submit in an instruction uncontested issues or matters about which there is no dispute or matters which are admitted or conceded' but held that the rule could not apply in that case because the defendant had denied the oral contract and had not made any admissions or given any evidence to establish the facts relied upon by plaintiff.Plaintiff there relied upon the theory that defendant passively admitted the facts alleged by not offering evidence to the contrary.The court held that the opposing party was not required to contest or to offer evidence contradicting that offered by the other party but that it was the obligation of the defendant there (plaintiff here) to prove the allegations necessary to recovery and submit them for a finding by the jury.The facts there differ from those in the case at bar.Here the defendant denied the execution of the oral contract as alleged by plaintiff,...