Herzog v. Ross

• Decision Date: 09 September 1946
• Docket Number: 39837
• Citation: 196 S.W.2d 268,355 Mo. 406
• Parties: Richard R. Herzog and Vertia Herzog, Appellants, v. Violet Ross and Jeanne McCabe
• Court: Missouri Supreme Court

196 S.W.2d 268

355 Mo. 406

Richard R. Herzog and Vertia Herzog, Appellants, v. Violet Ross and Jeanne McCabe

No. 39837

Supreme Court of Missouri

September 9, 1946

Appeal from Circuit Court of City of St. Louis; Hon. William S Connor, Judge.

Reversed and remanded.

Jesse T. Friday for appellants.

(1) Plaintiffs' amended petition and the written contract in question, which, under the new General Code of Civil Procedure, becomes a part of plaintiffs' amended petition, did sufficiently describe the real property which is the subject of said contract. Hartvedt v. Harpst, 173 S.W.2d 65; Keator v. Helfenstein-Park Realty Co., 132 S.W. 1114; Nelson v. Brodhack, 44 Mo 596; Matthews v. O'Donnell, 233 S.W. 451. (2) Said amended petition and the contract, which, under the new General Code of Civil Procedure, is a part of said amended petition, do sufficiently set out the terms of payment. In construing a contract, effect must be given, if possible, to all of the parts thereof. Paisley v. Lucas, 143 S.W.2d 262, 346 Mo. 827; Miller v. Bowen Coal & Mining Co., 40 S.W.2d 485; National Refining Co. v Cox, 57 S.W.2d 778, 227 Mo.App. 778; Miller v. Mutual Ben. Health & Accident Assn., 80 S.W.2d 201; Belt Seed Co. v. Mitchelhill Seed Co., 153 S.W.2d 106, 236 Mo.App. 142; American Hardwood Co. v. Dent, 132 S.W. 320, 322; Phillips v. American Natl. Assur. Co., 58 S.W.2d 814, 227 Mo.App. 1136; St. Louis Union Trust Co. v. MacGovern & Co., 249 S.W. 68, 297 Mo. 527; Citizens Trust Co. v. Tindle, 199 S.W. 1025, 272 Mo. 681. (3) The contract, sufficiently and definitely sets forth the taxes which were excepted and the taxes for which the respondents (defendants) and the appellants (plaintiffs) were obligated to bear under the terms of said contract. (4) The contract in question is not lacking in mutuality and is not unilateral. Fullington v. Ozark Poultry Supply Co., 39 S.W.2d 780; Little Rock Surgical Co. v. Bowers, 42 S.W.2d 367, 227 Mo.App. 744; Banner Creamery Co. v. Judy, 47 S.W.2d 129; Warren v. Ray County Coal Co., 200 Mo.App. 442, 207 S.W. 883; Pulitzer Pub. Co. v. Chitwood, 9 S.W.2d 251; Wallace v. Workman, 173 S.W. 35; Nelson v. Massman Constr. Co., 91 S.W.2d 623; Zeppenfeld v. Morgan, 168 S.W.2d 971. (5) The rule is against construing a contract as unilateral and in favor of the construction that will make it valid, if such construction can reasonably be made. National Refining Co. v. Cox, 57 S.W.2d 778; Wiggins Ferry Co. v. Chicago & A.R. Co., 27 S.W. 568, 128 Mo. 224, opinion adopted by court in banc, 30 S.W. 430, 128 Mo. 224; Glover v. Am. Cas. Ins. & Sec. Co., 32 S.W. 302, 130 Mo. 173; 13 C.J., p. 333.

J. E. Patton for respondents.

(1) The alleged contract pleaded by reference and filed with plaintiffs' petition is too vague and indefinite to support a decree in equity for specific performance. Baldwin v. Corcoran, 7 S.W.2d 967; Henry v. Adkins, 194 S.W. 264; Terry v. Michalak, 3 S.W.2d 701, 319 Mo. 290. (2) The alleged contract pleaded and filed with plaintiffs' petition is unilateral and as such was and is unenforceable against the plaintiffs at the time of its alleged execution and delivery, to-wit, August 14, 1944, and was and is unenforceable in an action against the defendants below in an action for specific performance. Jesse v. Rolaff, 74 S.W.2d 890; Reynolds v. South Side Natl. Bank, 74 S.W.2d 297; State ex rel. St. Louis Car Co. v. Hughes, 152 S.W.2d 193; Hudson v. Browning, 264 Mo. 58, 174 S.W. 393; Bearup v. Equitable Life Assur. Soc. of U.S., 172 S.W.2d 942; Huttig v. Brennan, 41 S.W.2d 1054. (3) The alleged contract pleaded and filed with plaintiffs' petition being unilateral, it was unenforceable at the time of its execution and delivery on August 14, 1944, and part performance, if any with the knowledge and consent of defendants was insufficient to put the alleged instrument into force and effect. Jesse v. Rolaff, 74 S.W.2d 890; Anchor Serum Co. v. Rea and Fidelity & Deposit Co., 326 Mo. 811, 32 S.W.2d 587; Hubbard v. Turner Dept. Store Co., 220 Mo.App. 95, 278 S.W. 1060.

OPINION

Tipton, C.J.

In the circuit court of the city of St. Louis, appellants filed this action against respondents to compel them to convey to appellants a parcel of real estate pursuant to a written contract which was attached to and made a part of appellants' petition. Respondents filed their motion challenging the sufficiency of appellants' amended petition, and this was sustained by the trial court. Appellants declined to further plead and the court entered a judgment for respondents and dismissed appellants' petition.

Appellants' amended petition alleged that on August 14, 1944, appellants and respondents entered into a written contract whereby respondents agreed to convey to appellants a parcel of land for the sum of $ 4,250.00. $ 100.00 was paid at the time of the execution of the contract as earnest money and part purchase money. Rents, interest, water license, taxes and insurance were to be adjusted to the date of the transfer of the property which was to be consummated on or before October, 14, 1944. There was also a clause in the contract to the effect that appellants were to satisfy themselves before September 1, 1944, that the house was free of termites. The petition alleged that appellants had satisfied themselves that the house was termite free and so notified respondents thereof before September 1, 1944. Respondents thereupon notified appellants that they would not carry out their part of the contract. Other facts will be stated in the course of this opinion.

Respondents' first contention is that the contract did not sufficiently describe the real estate in question. The description of the property in the contract is as follows: "The following described property situated in the city of St. Louis, State of Missouri, to-wit: Property known as and numbered 6850 Plateau, together with all improvements, including shades, screens and electric; lot 50 x 178, exact description in title to govern." It is true the legal description is not given in the contract but the legal description of the property known as 6850 Plateau can easily be determined from the public records in the court house.

In the case of Keator v. Helfenstein Park Realty Company, 231 Mo. 676, l.c. 680, 132 S.W. 1114, we approved the rule announced in the case of Black v. Crowther, 74 Mo.App. 480, wherein that court said: "The rule may be stated thus: The land need not be fully and actually described in the paper so as to be identified from a mere reading of the paper. But the writing must afford the means whereby the identification may be made perfect and certain by parol evidence." This rule is correct, and applied to this case the description in the contract is sufficient.

Respondents' next contention is that the clause in the contract relating to the purchase price and the manner in which it was to be paid was too indefinite and uncertain; therefore, the contract is unenforceable. That clause is as follows: ". . . which property is this day sold to the above parties for the total sum of Four Thousand Two Hundred Fifty ($ 4,250.00) Dollars, payable as follows: Seven Hundred ($ 700.00) Dollars cash and balance to be secured by a first deed of trust of $ 3,550.00, with a pay off of $ 100.00 at each interest date and a privilege of an extra $ 100.00 at each interest date. Loan to run for 3 years. Owner is to receive all cash."

The full consideration under this clause was $ 4,250.00, and $ 100.00 was paid to respondents as earnest money and part purchase money, so it is clear that at the time of the closing of the sale a balance of $ 4,150.00 would be due. It is true this clause mentions a deed of trust, but the phrase, "owner is to receive all cash," clearly shows that the respondents were to receive cash at the time the property was transferred to appellants. It was alleged in appellants' petition that cash was to be paid respondents. This is the fair and reasonable construction of the contract and, therefore, it is our duty to give the contract that construction. Paisley v. Lucas, 346 Mo. 827, 143 S.W.2d 262. If the phrase, "owner is to receive all cash," had been omitted, then the contract would have been indefinite and uncertain, and would have come within the rule announced in the case of Baldwin v. Corcoran, 320 Mo. 813, 7 S.W.2d 967.

"The title to said property to be perfect and to be conveyed by warranty deed, free from liens and encumbrances, except the taxes for the year --, and thereafter," is claimed by respondents to be too indefinite and uncertain to be enforced because it did not set out the year for which the taxes were excepted. In the construction of all written instruments the rule is well established that the instrument must be construed as a whole. The following two...