Johnson v. Moore

• Decision Date: 01 October 1996
• Docket Number: No. 68868,68868
• Citation: 931 S.W.2d 191
• Parties: Maynard R. JOHNSON, Plaintiff/Respondent, v. Noreen K. MOORE, Defendant/Appellant.
• Court: Missouri Court of Appeals

Page 191

931 S.W.2d 191

Maynard R. JOHNSON, Plaintiff/Respondent, v. Noreen K. MOORE, Defendant/Appellant.

No. 68868.

Missouri Court of Appeals,

Eastern District,

Division Two.

Oct. 1, 1996.

W. Dudley McCarter, Behr, Mantovani, McCarter & Potter, P.C., Clayton, for defendant/appellant.

David T. Butsch, Green, Schaaf & Margo, James P. Carmody, Clayton, for plaintiff/respondent.

CRANE, Presiding Judge.

Residential real estate buyer brought a breach of contract action against seller for seller's failure to convey the property to the buyer at closing. Seller defended pro se. After a bench trial the trial court entered judgment in favor of buyer for damages and interest in the amount of $14,346.30. Seller appeals. She claims insufficient evidence was offered to establish tender of purchase price, payment of earnest money deposit, and buyer's acceptance. She also asserts plain error in the admission of a deposition and in the admission of oral testimony when supporting documents were not in evidence. We affirm.

In August 1992 defendant Noreen Moore (hereinafter "seller") entered into a residential listing agreement appointing Coldwell Banker her sole and exclusive agent with the exclusive right to sell her house located at 330 Norwich Court in Ballwin, Missouri. Coldwell Banker sales associate Kay Dobson was the listing agent. On September 13, 1996, Irene Payne, another Coldwell Banker agent from the same office, conducted an open house for Dobson, who had another open house that day. Plaintiff Maynard Johnson (hereinafter "buyer") viewed the house on the day of the open house. On September 16, 1992, buyer contacted Irene Payne and completed and signed a four-page residential sale contract form to purchase the house for $112,000.00. He gave the form to Irene Payne and wrote a check payable to Coldwell Banker for $200.00 as earnest money. Dobson learned of buyer's offer that same day and went to the office and got the contract.

At the time buyer made the offer, seller was in Connecticut, where she had taken employment. Dobson transmitted a copy of the offer to seller on September 16, 1992 by a facsimile. Seller received that offer on September 16 and, on September 17, 1992, made a counteroffer of $120,000.00 by striking through the $112,000.00 figure and writing in $120,000.00. Seller indicated on this form that her counteroffer was to be accepted by buyer by 10:00 p.m. on September 18, 1992. Seller then faxed the counteroffer to the Coldwell Banker office. Dobson received Payne notified buyer of the counteroffer on September 17. Buyer, who was out-of-town, returned to St. Louis at approximately 6:30 p.m. on September 18 and met Payne sometime between 8:30 and 9:30 p.m. at the Coldwell Banker office and signed the contract and duplicates at approximately 9:45 or 9:50 p.m. that day. Buyer also wrote a $1,000.00 check on his account to Coldwell Banker as additional earnest money, which he post-dated September 20, 1992, but gave to Payne that night. Payne gave both that check and the previous check to Coldwell Banker.

pages one and four of the form contract, notified Payne of the counteroffer, and left the faxed pages in Payne's personal mailbox in the office.

The residential sales contract for the Norwich Court property provided the total price was $120,000.00 to be paid as follows: $200.00 earnest money to be paid by buyer and held by the listing broker subject to paragraph twelve of the contract; an additional $1,000.00 earnest money to be paid by buyer within three days after the date of final acceptance of the sale contract and held by the listing broker; and $118,800.00 to be paid at closing. The contract had financing and inspection contingency clauses. Paragraph twelve required the listing broker to deposit the earnest money no later than five banking days after the date of final acceptance and the additional earnest money no later than five banking days after receipt. The contract specified closing was to be held on November 6, 1992.

Payne telephoned Dobson at 9:55 p.m. on September 18 to notify her that buyer had accepted the counteroffer. She left the contract in Dobson's mailbox at the office. Dobson did not hear from seller at any time on the evening of September 18. On September 19, seller, who was still in Connecticut, telephoned Dobson who informed seller that her house had been sold. Seller immediately started crying and said that the job in Connecticut was not working out. She also told Dobson she did not want to sell her house and she did not know what to do. She did not ask Dobson to do anything. Dobson faxed a copy of the contract to seller. Dobson took the house off the market and took down the sign.

When she returned to St. Louis, seller again told Dobson that she did not want to sell her house. Dobson told seller that she should seek legal advice. Dobson testified that at some point after seller talked to an attorney, seller told her "I guess I've sold my house." After that, Dobson helped seller find a new residence. Seller made offers and executed sales contracts on two condominiums, both of which were accepted. Seller made both condominium contracts contingent on the "successful closing" of 330 Norwich Court "which is now under firm contract."

In the meantime, buyer obtained a loan for $109,000.00. A property inspection, termite inspection, and an inspection by Laclede Gas were conducted. Buyer, seller and Dobson were present at the termite inspection in mid-October at which time the parties discussed the possibility of extending the November 6 closing date so seller could have more time to find a new residence. Dobson drew up a document to extend the closing date, but seller did not sign it.

On November 6, 1992, at 2:00 p.m., buyer, his fiance, and Payne appeared at Ticor Title to proceed with closing. Buyer testified that Boatmen's Bank had approved the loan, that all loan papers were in place and buyer was ready to proceed with closing. Seller did not appear at Ticor for the November 6 closing.

Buyer subsequently filed an action seeking enforcement of the real estate contract or damages in lieu of specific performance. At trial, buyer's expert witness, a real estate appraiser, testified that the fair market value of the house as of November 6, 1992 was $130,000.00, which was $10,000.00 more than the contract price of $120,000.00. Buyer testified to out of pocket expenses of $1,200.00 in earnest money, $190.00 for inspections, and $250.00 for the loan processing fee. The trial court entered judgment in buyer's favor for $11,640.00 actual damages plus prejudgment interest of $2,706.30 for a total judgment of $14,346.30.

In a court-tried case we sustain the judgment of the trial court unless there is no substantial evidence to support it, it is For her first point seller contends that the trial court erred in granting judgment for buyer because buyer did not tender the purchase price on the day of closing and there was no substantial evidence that buyer had the ability to tender. Seller argues that buyer's loan commitment of $109,000.00 was $9,800.00 short of the amount that was to be paid by cashier's check. Buyer responds that he was prepared to close and that actual tender was not required since the parties' obligations were concurrent and seller waived her right to tender when she failed to appear for closing.

against the weight of the evidence, or it erroneously applies or declares the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We accept all evidence and inferences favorable to the judgment, and disregard all contrary evidence and inferences. Central Dist. Alarm, Inc. v. Hal-Tuc, Inc., 886 S.W.2d 210, 211 (Mo.App.1994). No findings or conclusions were requested and none were entered. Where the trial court enters no findings of fact, we assume that the trial court resolved all issues of fact in accordance with the result reached. Rule 73.01(a)(3); 21 West, Inc. v. Meadowgreen Trails, Inc., 913 S.W.2d 858, 863 (Mo.App.1995).

A "tender" is an offer to perform a contract with the present ability to do so, and comprehends a readiness and willingness to perform. Dippel v. Rokwell Ind., Inc., 715 S.W.2d 553, 556 (Mo.App.1986). The law does not require a person who is ready and able to perform his contractual duties to tender his performance where such would be a "vain and idle ceremony." Intern. Harvester Co. v. Mahacek, 705 S.W.2d 603, 605 (Mo.App.1986) (quoting Owens v. Automobile Recovery Bureau, Inc., 544 S.W.2d 26, 31 (Mo.App.1976)); Collins v. Trammell, 911 S.W.2d 635, 638 (Mo.App.1995). In particular, a tender of the balance of the purchase price is waived when the seller maintains a position that would render the tender a useless act. Randall v. Harmon, 806 S.W.2d 136, 137-38 (Mo.App.1991). Where a tender is due on closing and the seller is not ready and willing to close, tender of the purchase price is not required to enforce the contract. Id. at 138. In the present case, tender was waived when seller did not appear for...