Hellrung v. Hoechst
| Decision Date | 09 November 1964 |
| Docket Number | No. 50133,No. 2,50133,2 |
| Citation | 384 S.W.2d 561 |
| Parties | Arintha HELLRUNG and J. M. Wittels, Plaintiffs-Appellants, v. Emil E. HOECHST and Elsa A. Hoechst, Defendants-Respondents |
| Court | Missouri Supreme Court |
Burton M. Greenberg, St. Louis, London & Greenberg, St. Louis, of counsel, for plaintiffs-appellants.
Albert A. Michenfelder, Jr., Robert C. Jones, Clayton, Ziercher, Tzinberg, Human & Michenfelder, Clayton, of counsl, for respondents.
BARRETT, Commissioner.
This is a three-count action by J. M. Wittels (Arintha Hellrung is a straw party) against Emil and Elsa Hoechst to recover damages for breach of a real estate contract. Count two for actual and punitive damages for fraud has been abandoned. In count one Wittels sought $110,000 damages and the return of $5,000 earnest money for breach of contract while in count three he sought only the return of the earnest money. At the close of the plaintiffs' evidence the court sustained the defendants' motion for a directed verdict and the plaintiffs have appealed from the judgment entered upon that order.
The subject matter of the contract is the Steinberg Estate, a sixteen room mansion on a twenty-nine acre tract of land in St. Louis County. On October 22, 1954, Wittels, an investor and real estate dealer with forty years' experience, made an earnest money payment of $5,000 and entered into a written contract with the Hoechsts in which they agreed to sell and he agreed to buy the Steinberg Estate for the total price of $115,000. The property was subject to two deeds of trust, a first securing a $30,000 note and a second securing $19,000. The closing date of the contract was 'on or before November 22, 1954.' On or before that date Wittels was to give the Hoechsts a 'return deed of trust' in the total sum of the two encumbrances then on the property, $49,000, and make a '(c)ash payment of $66,000, of which the earnest money ($5,000) is a part.' The sale was to be closed at the office of the Wittels Investment Company 'under the usual closing practices of the St. Louis Real Estate Board.' These practices were set forth on the back of the printed form contract (prepared at the direction of Wittels) which provided, as far as material here, that 'Title shall be merchantable' and 'Seller shall furnish a general warranty deed, subject to * * * general taxes payable in current year' and subject, of course, to the specified indebtedness of $49,000. As to earnest money and the purchaser, insofar as involved here, the practices provide that 'if purchaser wrongfully refuses to close, earnest money is to be forfeited.'
In support of his claim that the Hoechsts had breached the written contract Mr. Wittels reviewed the contract terms and said that assuming the deeds of trust totaling $49,000 and the earnest money payment of $5,000 his 'cash payment' would have been $61,000. But, he said, two or three days prior to the closing date he was served with two levies against the Hoechsts for federal taxes, these livies and 'warrant(s) for distraint' were dated November 1 and 2, 1954. One levy in the sum of $1,053.83 was a notice that withholding taxes were due from 'Emil E. Hoechst D/B/A Commercial Plumbing Company.' The other levy was for $5,189.49 taxes due from Emil and Elsa Hoechst. Nevertheless, Mr. Wittels says that he and his attorney and the Hoechsts' attorney appeared at the appointed place on the closing date but the transaction was not closed. He said that in addition to the two federal tax liens he found that there were delinquent state and county taxes exceeding $13,000 and that sums in excess of $49,000 were due on the deeds of trust. But, admittedly, Mr. Wittels did not have the $61,000 and he does not claim that on that occasion he tendered the Hoechsts or their attorney $61,000. He testified that he told their lawyer 'that I would give them the money if they showed me a clear title free of any encumbrances or liens against the property.' Repeatedly he testified that he said 'I will give you the money if you give me a clear title,' or, once he put it 'if they would give clear title free of encumbrances.' While he did not have a check or money and does not claim to have made a formal tender of $61,000 he said that he had left a $15,000 check with the Title Insurance Corporation, dated November 15, 1954, (a date on which he did not remember meeting the sellers or their counsel), to apply on the purchase price. And then he claimed to have made arrangements with a Mr. Brune to 'loan him some money (no limit specified) to help him close his deal.' He also claimed to have made an arrangement with Mercantile Trust Company to borrow $50,000 but Mercantile insisted on a first deed of trust as security and, finally, he said that the $50,000 was not to be used in the closing, that was a separate transaction between him and Mercantile. He testified that he did not refuse to close; 'At no time did I ever make any statement about refusing to close the deal on November 22nd, and I am going to repeat to you again--that I said I will give you the money if you give me a clear title.'
Mr. Wittels does not claim that the sellers, the Hoechsts, or their representatives, repudiated the contract or refused to proffer, as the closing practice specified, 'a general warranty deed.' And other than the indicated tax liens and encumbrances, he does not claim that the sellers did not have the required 'merchantable title.' On the closing date the sellers were to 'furnish a general warranty deed' conveying a merchantable title, there was no stipulation in this contract that the sellers were to have a title free and clear of all taxes and liens 'as of the time of the contract, or some time prior to that fixed for conveyance.' Annotation 109 A.L.R. 242, 'Right of vendee prior to time fixed by contract for conveyance to complain of encumbrances or defects in title.' And, as a court of appeals said, 'the language of the contract convinces us that the parties intended that a distinction might be observed between defects that impaired the soundness of the fee-simple title and mere incumbrances.' Snyder v. Betker, 159 Mo.App. 325, 330, 140...
To continue reading
Request your trial
-
Biggs v. Moll
...description. Arnold v. Smith et al., Mo., 436 S.W.2d 719. See also Wilkinson v. Vaughn, Mo., 419 S.W.2d 1. The cited case of Hellrung v. Hoechst, Mo., 384 S.W.2d 561, is not persuasive. The asserted failure of Cooperman to request the execution of a warranty deed before October 30 is immate......
-
Miran Inv. Co. v. Medical West Bldg. Corp.
...true that proof of performance or tender of performance is necessary to the recovery upon an express contract, as here. Hellrung v. Hoechst, Mo., 384 S.W.2d 561, 564(5); Rosen v. Alside, Inc., Mo., 248 S.W,2d 638, 643(7); Kreitz v. Egelhoff, 231 Mo. 694, 132 S.W. 1124, 1127. The issue is, h......
-
Perkinson v. Burford
...to allow contract rescission Mrs. Burford's complaint is too flimsy to warranty her repudiation of the contract. See Hellrung v. Hoechst, 384 S.W.2d 561, 564 (Mo.1964), citing Annot., 109 A.L.R. 242, 244 (1937). Quite clearly the Perkinsons had the capacity and were in position to convey ti......
-
Powell v. Bagley, No. 62373
...The general rule is that a vendee cannot complain that the vendor's title is defective prior to the closing date. Hellrung v. Hoechst, 384 S.W.2d 561, 564 (Mo.1964); George v. Lemay Bank & Trust Co., 618 S.W.2d 671, 675 (Mo.App., E.D.1980). In addition, this court has held that absent fraud......