Gottlieb v. LaBrunerie
| Decision Date | 03 September 1974 |
| Docket Number | No. KCD,KCD |
| Citation | 514 S.W.2d 27 |
| Parties | Arvin GOTTLIEB, Appellant, v. Walker LaBRUNERIE and Doris W. LaBrunerie, Respondents. 26561. |
| Court | Missouri Court of Appeals |
Leonard B. Rose, Sheffrey, Ryder, Skeer, Krigel & Rose, Kansas City, for appellant.
Gerald W. Gorman, Truman K. Eldridge, Jr., Dietrich, Davis, Burrell, Dicus & Rowlands, Kansas City, for respondents.
Before PRITCHARD, P.J., and SWOFFORD and SOMERVILLE, JJ.
This appeal is form a judgment in an action for declaratory judgment and other relief involving an Option Agreement to purchase real estate. The case was tried below before the court, without a jury, and resulted in a judgment in favor of the respondents (hereinafter referred to as defendants) and against the appellant (hereinafter referred to as plaintiff). The court below made no findings of fact or conclusions of law.
The first point raised in plaintiff's brief is that the trial court erred in failing to make such findings and conclusions when requested to do so by the plaintiff. A review of the record discloses that the plaintiff's request was in general terms; that the trial court make 'findings of fact and conclusions of law concerning the principal controverted fact issues in the cause, all in accordance with V.A.M.R. 73.01.'. While we do not approve such a general request since it is completely lacking in the required specificity 1, this request was withdrawn by plaintiff's counsel during the trial and in post trial proceedings. Although presented as the first point in plaintiff's brief, that point of alleged error was again withdrawn and abandoned in oral argument before this court. We, therefore, will not consider this point further.
Rather, this appeal will be considered as a court-tried case decided without findings of fact or conclusions of law and without any indication of the theory upon which the trial court acted in entering the judgment below. Accordingly, all fact issues shall be deemed found in accordance with the result reached and the judgment must be affirmed, if it is correct on any reasonable theory supported by the evidence. Rule 73.01(b); Lossing v. Shull, 351 Mo. 342, 173 S.W.2d 1, 5(1) (1943); Edgar v. Fitzpatrick, 377 S.W.2d 314, 318(12) (Mo. banc 1964); McIntosh v. White, 447 S.W.2d 75, 78(5) (Mo.App.1969). The judgment will not be set aside unless clearly erroneous. Rule 73.01(d).
Plaintiff's cause of action for declaratory judgment was based upon a written Option Agreement dated January 21, 1972, involving a ten (10) acre tract of land in Clay County, Missouri, for a purchase price of $400,000.00. Basically, he claimed that he had fully complied with the terms of this agreement and that the defendants had wrongfully breached the contract. He asked for the court's declaratory judgment that the Option Agreement was in full force and effect; that his notice of April 5, 1972 (hereinafter discussed) had validly extended the option according to its terms; and for other relief.
The pertinent terms of this Option Agreement are as follows:
'OPTION AGREEMENT
THIS AGREEMENT made the 21st day of January, 1972, by and between Walker LaBrunerie and Doris W. LaBrunerie, 3630 Briarcliff Rd. of Kansas City, Missouri 64116 hereinafter called Seller and Arvin Gottlieb or Assigns of Kansas City, Missouri hereinafter called Purchaser;
WITNESSETH, THAT:
In consideration of the sum of Five Hundred and No/100 dollars ($500.00) paid by Purchaser to Seller, receipt whereof is hereby acknowledged, Seller does hereby give and grant unto Purchaser, his heirs and assign, for the period of 75 days from the date hereof, the exclusive right or option to purchase from said Seller, at the terms hereinafter set forth, the following described real estate: * * *
SELLER DOES further give and grant unto Purchaser, his heirs and assigns, the exclusive right or option to extend the above mentioned option period an additional 6 calendar months, in consideration of an addition Five Thousand Dollars ($5,000.00) paid to Seller. It being understood and agreed that the sum of ($5,000.00) paid in the event the Purchaser elects to extend this option the said additional 6 months shall be applied toward said purchase price.
2. In the event that Purchaser elects to exercise either or both of these options, he shall do so by notifying Seller in writing of his intention so to do. Such notification shall be deemed sufficient if registered and deposited in the United States Mails on or before the expiration of either or both of these options, and addressed to Seller at 3630 North Briarcliff Road, Kansas City, Missouri 64116 * * * Any notification hereunder may be made by registered U.S. Mail, the effective date of delivery of which shall be the date the same is deposited in said mail.' (Emphasis added)
The evidence before us shows that this agreement was originally tendered to the defendants by the plaintiff on a printed form. It was then revised and retyped (it is not clear by whom), further changes and additions were made by Walker LaBrunerie and initialed by him. There is no dispute that the revised agreement was executed by the parties on January 21, 1972 and a check dated February 3, 1972, drawn on the account of The David Gottlieb Company, Inc. at the Country Club Bank, signed by Arvin Gottlieb and payable to 'Walker LaBrunerie and Doris W. LaBrunerie' was delivered to cover the initial option consideration of $500.00. Walker LaBrunerie testified that he had no recollection of endorsing this check; that an endorsement may have been made by a stamp by an employee; but the fact that it was deposited in the LaBrunerie account is not disputed.
Before relating the events which give rise to this litigation, some pertinent preliminary facts in the record should be noted. Walker LaBrunerie was under the impression that the original option date expired on April 4, 1972, counting 75 days from January 21, 1972. Of course, it is clear that under the provisions of Section 1.040 RSMo 1969, January 21, 1972 was to be excluded in such computation, which would make the option expiration date midnight, April 5, 1972.
Also, there is ample evidence in this record from which the trial court could conclude that the LaBruneries had reached the conclusion before April 5, 1972 that their agreement with the plaintiff was not a good one. The plaintiff testified that Walker LaBrunerie had told him that 'the deal was the second worst one he had ever made'. LaBrunerie testified that he made this remark in jest and to 'make Arvin feel good', and that the LaBruneries were at all times ready to live up to the agreement. He also testified that he called the plaintiff about a week before April 4, 1972 and asked if the plaintiff intended to exercise the second option for a six month extension and that the plaintiff said 'he was not sure whether the option would be exercised'.
LaBrunerie testified that the plaintiff had indicated that there could be others involved in the deal and that the agreement provided for assignment. However, the following colloquy between the court below and plaintiff appears in the record:
The events of April 4 and 5, 1972, and the days immediately following, appear to have developed as follows:
Although, under the impression that the second option period expired at midnight April 4, 1972, LaBrunerie testified he waited until about 4:00 p.m. on April 5, 1972 and then sent the following telegram to the plaintiff's home and to his office:
'April 5 332 P CDT
You are advised herewith that your option on the ten acre tract at Highways 169 and 152 dated Jan 21, 1972 has expired and is no longer of any force or effect whatsoever.
Mr. Arvin Gottlieb--215 East 18th St. KSC
Arvin Gottlieb--6911 West 51st Place KSC'
He testified that a day or two after April 5, 1972, he told the plaintiff that the option was not timely or properly exercised and was no longer valid and that he had turned the matter over to his attorney.
The plaintiff testified that on April 5, 1972, he was in the state of Iowa on business and that he called his secretary and told her to prepare 'the papers and check'; he then called his wife and told her to go down to the office and sign the check. While neither the secretary nor Mrs. Gottlieb testified, and there was no proof that the letter and check were actually mailed, by registered mail, postage and fees prepaid, on April 5, 1972, there was no objection to the introduction of the letter and check into evidence, and we will, therefore, assume that such were mailed on that date.
The letter was written on the business letterhead of 'The David Gottlieb Company, Inc.', was dated April 5, 1972, was addressed only to Walker LaBrunerie, and stated:
'Dear Mr. LaBrunerie:
In accordance with the option on the Southeast corner of 169 and 152 Highways, a copy of which (sic) hereto attached (sic) letter will serve as your notice that said option is hereby extended for an additional six (6) calendar months. Enclosed please find our check in the amount of $5,000.00.
The enclosed check was drawn on the account of 'The David Gottlieb Co., Inc.' dated April 5, 1972 and payable to 'Walker LaBrunerie and Doris W. LaBrunerie'. It was drawn by 'The David Gottlieb Company, Inc. /s/ Arvin Gottlieb'.
The evidence developed that the purported signature of 'Arvin Gottlieb' on this check was in fact signed by Mrs. Gottlieb and that the check would not have been paid by the Country Club Bank until its authenticity had been verified by either Mrs. Gottlieb or the...
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