Johnson v. Schuchardt

• Citation: 63 S.W.2d 17,333 Mo. 781
• Decision Date: 24 August 1933
• Docket Number: 30891
• Parties: Joseph B. Johnson, Estella Johnson and Dorothy Graham v. Max Schuchardt, Appellant
• Court: United States State Supreme Court of Missouri

63 S.W.2d 17

333 Mo. 781

Joseph B. Johnson, Estella Johnson and Dorothy Graham v. Max Schuchardt, Appellant

No. 30891

Supreme Court of Missouri

August 24, 1933

Appeal from Pettis Circuit Court; Hon. C. H. Skinker Special Judge.

Affirmed.

George K. Brasher and Montgomery, Martin & Montgomery for appellant.

(1) Specific performance of a contract is not a matter of absolute right, but of sound judicial discretion. Much less strength is required on the part of the defendant to resist a bill to perform than is required on the part of the plaintiff to maintain it. Performance will be denied in any case where under all the circumstances, a decree would be inequitable. Ranck v. Wickwire, 255 Mo. 61; Pomeroy v Fullerton, 131 Mo. 592; McQuary v. Land Co., 230 Mo. 342. (2) No positive rule can be laid down by which the action of the court can be determined in all cases. In general, it may be said that specific relief will be granted when it is apparent, from a view of all the circumstances of the particular case, that it will subserve the ends of justice; and that it will be withheld when, from a like view, it appears that it will produce hardship or injustice to either of the parties. Pomeroy v. Fullerton, 131 Mo. 594; Droppers v. Hand, 242 N.W. 483. (3) Time may be made of the essence of the contract for the sale of the property either by the express stipulation of the parties or it may arise by implication from the very nature of the property or the avowed objects of the seller or purchaser. Pomeroy v. Fullerton, 131 Mo. 593; Kinsley Milling Co. v. Wait, 213 P. 160; 13 C. J. p. 687; Three States Lumber Co. v. Bowen, 129 S.W. 798; St. Louis Steam Heating Co. v. Bissell, 41 Mo.App. 430. Parties may make time an essential element without any express stipulation, when such intention is clearly manifested by the agreement as a whole, construed in the light of surrounding facts. Wimer v. Wagner, 20 S.W.2d 652; 58 C. J. p. 1090; Owen v. Giles, 157 F. 825. When the contract does not expressly provide that time shall be of the essence of it, the court will look to the language employed and to the nature of the contract and the purpose of the contract and the circumstances under which it was made in order to ascertain whether the parties intended that time should be of the essence. St. Louis Steam Heating Co. v. Bissell, 41 Mo.App. 430; Wall v. Ice & Cold Storage Co., 112 Mo.App. 659; Carroll v. Hassell, 161 Mo.App. 426. The following are typical cases applying this doctrine: (a) Where the seller knew when he contracted to convey lots on a certain date that the purchaser intended to build and was anxious to commence operations because the building season was advancing and every day's delay caused him loss, the time of performance was of the essence. Garrett v. Cohen, 117 N.Y.S. 129; Agens v. Coch, 74 N.J.Eq. 528, 70 A. 348. (b) Time will be presumed to be of the essence of the contract when it was known to both parties at the time it was entered into that, without strict performance in that respect, it would not accomplish its ultimate object. Bridge Co. v. Corigan, 251 Mo. 688. (c) The intention of the parties to the contract to make time essential may be implied from the avowed objects of the sellers, purchasers or lessees, as where it is important for the success of the defendant's business undertakings that plaintiff comply with his contract promptly and this was understood by the parties. 58 C. J. sec. 364 (3), p. 1094; Agens v. Coch, 74 N.J.Eq. 528, 70 A. 348. (4) In determining whether stipulations as to the time of performance of a contract of sale are conditions precedent, the court seeks to discover the intention of the parties and, if time appears, from the language used and the circumstances, to be of the essence of the contract, stipulations in regard to it will be held conditions precedent. Redlands Orange Growers Assn. v. Gorman, 161 Mo. 211. (5) In ascertaining the intention of the parties it may be proved by parol that, at the making of the contract, time was considered as of the essence. Such proof was made in this case without any objection being made to the same. Wimer v. Wagner, 20 S.W.2d 652; Thurston v. Arnold, 43 Iowa 43; Kinsley Milling Co. v. Wait, 213 P. 160; 1 Greenleaf on Evidence (Lewis' Ed.) sec. 296a. (6) A purchaser should not be required to take a title where a reasonable doubt concerning the title exists, although resting on grounds merely debatable, but which might visit upon the purchaser litigation in that regard with parties not before the court, even though the title might in fact be declared good. Saracino v. Construction Co., 140 A. 458; Williams v. Bricker, 109 P. 998, 30 L. R. A. (N. S.) 343; 25 R. C. L. sec. 76, p. 275; Street v. French, 35 N.E. 114. (7) Even though time is not of the essence of the contract, the title must be marketable on the date of the filing of the action for specific performance, and, in every possible case, before a decree for specific performance. 58 C. J. sec. 384, p. 1106; Luckett v. Williamson, 37 Mo. 388; Isaac v. Skrainka, 95 Mo. 524; Hobson v. Lennox, 201 S.W. 964.

A. L. Shortridge and Paul Barnett for respondent.

(1) The contract in suit expressly allows respondents a reasonable time to correct defects in title. By the filing of suit to the next term of court, and prosecuting same with due diligence to final decree correcting the title, respondents fully complied with their contract agreement to correct the title within a reasonable time, and the action of the trial court decreeing specific performance was manifestly right. Betts v. Thrasher, 138 So. 500; Nicholson v. Lieber, 153 S.W. 641; Foster v. Elswick, 4 S.W.2d 946; Smith v. David, 148 S.E. 271; Milton v. Crawford, 118 P. 36; Dime Savings & Trust Co. v. Knapp, 138 N.E. 723; Lewis v. Woodvine Savings Bank, 174 N.W. 19. (2) Whether or not the title was in fact a merchantable title at the date of delivery of the abstract is immaterial. (a) Respondents were entitled under the terms of the contract to a reasonable time to remove the defects. See authorities under Point 1, supra. (b) The filing of this suit for specific performance was not premature. It is sufficient if the defect in title be removed at any time before final decree. Scannell v. Am. Soda Fountain Co., 161 Mo. 623; Tuckett v. Williamson, 37 Mo. 388; Dennett v. Norwood, 135 N.E. 866; Shonsey v. Clayton, 187 N.W. 113; Smith v. David, 148 S.E. 265; 58 C. J. 1106. (c) The pendency of an appeal from the decree quieting the title did not deprive the trial court of the right to decree specific performance in the case at bar. That appeal was fomented by appellant, who was not a party to the quiet-title suit, and he will not be heard, in a court of equity, to say that the appeal constituted a cloud upon the title. Under the circumstances, the decree of the circuit court was evidence that the cloud had been removed, notwithstanding the appeal. Lewis v. Woodbine Savings Bank, 174 N.W. 19; Mann v. Doer, 222 Mo. 18. (d) The trial court found that the plat of Dundee place did not constitute a cloud upon the title, and the evidence abundantly supports that finding. Johnson v. Ferguson, 44 S.W.2d 650.

OPINION

Frank, P. J.

Action in equity by respondents, plaintiffs below, to reform a contract for the sale of real estate, and to enforce specific performance of the contract as reformed. The court below decreed reformation of the contract as prayed, and ordered that defendant specifically perform the contract as reformed by paying to plaintiffs the agreed purchase price. Defendant appealed.

By the terms of the contract of sale entered into on February 21, 1928, plaintiffs agreed to sell to defendant, and defendant agreed to buy from plaintiffs, a certain tract of land located near Sedalia, Missouri, for the sum of $ 16,000.

The contract provided that the owners should furnish to the buyer a complete abstract showing a good and merchantable title to said land in the owners. The contract also contained the following further provision:

"It is further understood and agreed that the said buyer, upon receipt of said abstract of title shall have same examined and if defects should be found therein, shall furnish to said owners statements of such defects in title and objections to the abstract as he may find. Thereupon the said owners shall remedy the said defects and objections, provided that same can be done within a reasonable time and at a reasonable expense. If, however, said defects cannot be so remedied then this contract shall be cancelled and abrogated and the five hundred dollars purchase money paid hereunder by the buyer shall be repaid to him."

The contract was signed on February 21, 1928. Shortly thereafter plaintiffs delivered to defendant the abstract of title. Thereafter on March 3, 1928, defendant furnished to plaintiffs a written statement of his objections to the abstract. Upon receipt of defendant's objections to the title, plaintiffs employed counsel who conferred with defendant's counsel concerning such objection. Plaintiffs' counsel took the position that defendant's objections were not well founded, and did not constitute a cloud upon the title. A written opinion to that effect was furnished by plaintiffs' counsel. The lawyers failed to agree and plaintiff prepared to take the necessary steps to remove any apparent cloud upon the title by reason of said alleged defects. Plaintiffs filed a suit for that purpose, returnable to the first term of court after the execution of the contract of sale. The suit was prosecuted with due diligence and tried at the return term, on June 10, 1928. The cause was taken under advisement and a decree rendered the following November in which the court vested the title in fee in plaintiffs, holding that none of...