Griesenauer v. Belleau Lake Development Co.
| Decision Date | 21 November 1967 |
| Docket Number | No. 32774,32774 |
| Citation | 421 S.W.2d 785 |
| Parties | Glennon A. GRIESENAUER and Bettye Mort Griesenauer, Plaintiffs-Respondents, v. BELLEAU LAKE DEVELOPMENT CO., a Missouri Corporation, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Michael J. Ebeling, St. Louis, for defendant-appellant.
George E. Sullivan, O'Fallon, for plaintiffs-respondents.
This is a court tried case which we construe as being presented and determined as an action for money had and received. There was a finding and judgment for plaintiffs for $4,350.00. Defendant has appealed, contending that there is no reasonable basis for the trial court's decision.
Since this is a case tried without a jury we shall review same upon both the law and the evidence as suits of an equitable nature. Civil Rule 73.01(d), V.A.M.R. In doing so we determine the credibility, weight and value of the oral testimony and other evidence in the case. However, on sharply conflicting oral testimony our determination of the facts involves a certain degree of deference to the findings of the trial court who heard and observed the witnesses, Pope v. Cox, Mo., 417 S.W.2d 929, 933, and we do not set aside the judgment unless it is clearly erroneous. Civil Rule 73.01(d), V.A.M.R.
In 1963, discussions were had between plaintiff, Glennon A. Griesenauer and George Zinselmeier, representing defendant, concerning the sale to plaintiffs of a lot belonging to defendant and the construction of a dwelling house on said lot by defendant. Mr. Zinselmeier then prepared a proposed agreement on a regular real estate sales contract form. This instrument was introduced in evidence as plaintiffs' Exhibit I, the material portions of which are as follows:
'St. Charles County; Mo., 11--17--63
'Received from Glennon A. Griesenauer and Bettye Mort Griesenauer (His Wife), hereinafter called purchaser, the sum of Forty Three Hundred Fifty & 00/100 Dollars ($4350.00) as earnest deposit and as part of the cash consideration for the purchase of the following described property situated in the County of St. Charles, Missouri, known and described as: Lot #251 Dardenne Lake Estates, Plat #1 In St. Charles County, Missouri, together with (if any) the improvements thereon and * * *: As Per Signed Plans and Specifications which property is this day agreed to be sold to purchaser subject to approval of seller by noon of November 25, 1963, and not otherwise (and if not so approved earnest deposit shall be returned to purchaser) for the total sale price of Twenty Seven Thousand One Hundred Twenty Five & 00/100 Dollars ($27,125.00) on the following terms: Plus Closing Cost Earnest deposit made as per this receipt . . . $4350.00
Cash to be paid on closing date of sale as hereinafter fixed (subject to adjustments as herein provided) . . . $22,775.00
Final 1 Sale Price To Be Determined At Time Plans and Specifications Are Approved Purchaser and Seller. G.Z. 12/15/63 (s)
The sale under this contract shall be closed * * * at the office of Community Federal, 8944 St. Charles Road * * * on Completion of home on Lot 251 or on such prior date as the parties hereto may agree. All adjustments referred to on the reverse side hereof to be made as of When loan is closed. Title to pass when sale is closed. Time is of the essence of this contract. Possession of property to be delivered to purchaser at time of transfer of title, or on _ _.'
The instrument in question bears the signature of Glennon A. Griesenauer and by George A. Zinselmeier, for Belleau Lake Development Company. On the reverse side of said instrument there appears the following notation: (s)
Defendant seeks a reversal of the judgment on the theory that plaintiffs are not entitled to restitution. In support of this contention, it is urged that a binding contract was entered into between the parties; that defendant was at all times ready, able, and willing to perform its part of the contract but that plaintiffs repudiated the contract by demanding a conveyance of the lot, or a return of the earnest money deposit, thereby forfeiting same.
Plaintiffs contend there was no binding contract for the reason that the parties never reached an agreement as to plans and specifications for the house contemplated in their negotiations and in the instrument executed by them, and for that reason the parties agreed to abandon the project which imposed a duty upon defendant to return the earnest money deposit.
Mr. Griesenauer testified that at the time the instrument in question was prepared he had no firm agreement with Mr. Zinselmeier as to what type of house would be built; that he and Mr. Zinselmeier had differences over what would go into the house and its price; that he had plans and specifications prepared by West Wabash Construction Company which were received by him on December 15, 1963; that he did not sign the document on November 17, 1963, but did on December 15, 1963, when there was incorporated therein the provision that the sales price would be determined at the time the plans and specifications were approved; that the reason he signed was because Mr. Zinselmeier said he would have to have a signed contract to give to the Community Federal in order to get a clear title to the lot. An agreement was reached with respect to the sales price in the sum of $27,125.00, but according to plaintiffs' testimony, he and Mr. Zinselmeier could not agree on the plans and specifications. He detailed certain items in the plans that Mr. Zinselmeier wanted changed which he said would cheapen the house, to which he would not agree.
The sum mentioned in plaintiffs' Exhibit I, represented the price of the lot, $4,000.00 plus $350 for a membership in the Dardenne Country Club. As evidence of his membership in the Country Club, Mr. Griesenauer received what he described as a debenture bond. The evidence shows that Mr. Grisenauer paid to defendant the total sum of $4,350.00. He also testified the contract depended upon his selling the house he was then living in, which he was never able to do.
Plaintiff, Glennon A. Griesenauer, gave the following testimony:
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Rimer v. Hubbert
...contract. On the record presented, it appears that an action for money had and received will lie (cf. Griesenauer v. Belleau Lake Development Co., Mo.App., 421 S.W.2d 785, 789(5); Keane v. Beard, 11 Mo.App. 10, 20; 58 C.J.S. Money Received § 5, p. 915; Id. § 12, p. 922) and that we may not ......
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DeBow v. Higgins
...the credibility of the witnesses. Civil Rule 73.01(d), V.A.M.R.; Pope v. Cox, Mo., 417 S.W.2d 929, 933; Griesenauer v. Belleau Lake Development Co., Mo.App., 421 S.W.2d 785, 786. In awarding plaintiffs $3,000 damages, the court found the value of the property at the time of sale to be $30,0......