Kauflin v. Turek
| Decision Date | 11 April 1955 |
| Docket Number | No. 1,No. 44381,44381,1 |
| Citation | 277 S.W.2d 540 |
| Parties | Vincent KAUFLIN and Irene B. Kauflin, Appellants, v. Charles TUREK and Gloria Turek, Respondents |
| Court | Missouri Supreme Court |
Melville A. Ochsner, St. Louis, for appellants.
Lackland H. Bloom, St. Louis, Charles H. Rehm, Ste. Genevieve, for respondents.
COIL, Commissioner.
Appellants (Mr. and Mrs. Kauflin) paid respondents (Mr. and Mrs. Turek) $900 at the time they executed an agreement to purchase the Turek farm. The Kauflins sued to recover the $900, averring that respondents 'wholly failed to perform their part of' the petition and granted respondents specific performance of the 'Agreement of Sale * * *, as herein reformed to express the intention of the parties * * *.'
By the presently pertinent parts of the sale agreement, executed April 7, 1953, the Tureks agreed to sell and the Kauflins to buy the Turek farm near Farmington, Missouri, for $9,000 to be paid ; and the contract further provided that respondents would deliver to appellants a warranty deed on May 1, 1953, upon receipt of payment as theretofore provided.
As noted, the contract provided for the assumption by the purchasers of a $3,000 mortgage held by Millman Lumber Company 'at 4%.' The parties agree that the meaning of that provision was that the Kauflins were to assume a mortgage which secured a note bearing 4 per cent annual interest.
A. B. Harbour, a United Farm Agency representative, was the Tureks' agent in the sale of the farm. Harbour obtained the information from the Tureks that the mortgage held by Millman secured a note bearing 4 per cent interest. Harbour, acting on that information, placed the 'at 4%' in the sale agreement. Later, but prior to May 1, 1953 (the closing date), Kauflin, at Harbour's suggestion, went to Millman to ascertain whether that company would extend the due date of the loan. He discovered that the secured note bore interest at 4 1/2 rather than 4 per cent. Kauflin called Harbour and said that he had not agreed to assume a 4 1/2 per cent loan and therefore would not close the deal.
Mr. Kauflin testified that he told Harbour (after Kauflin discovered that Millman held a 4 1/2 per cent note): Kauflin also said: '* * * I signed the contract agreeing to assume a deed of trust at four per cent'; that he refused to go through with the contract because he knew that the Tureks could not provide a four per cent mortgage with the Millman Company, and 'that is the reason why I could not get another four per cent loan'; that he knew that the note was negotiable and had no special reason for wanting to pay the Millman Company; that he knew at the time he signed the contract that the Millman note was due in six or seven months; and that Mr. Harbour, prior to May 1, offered to pay him the difference between 4 and 4 1/2 per cent for the period between the closing date of the sale and the due date of the note. (This amount was $8.75.)
Mr. Harbour testified that the deed signed by the Tureks was available for delivery and that respondents were prepared to comply with all conditions of the contract on May 1, the closing date; that prior to May 1, he (Harbour) offered to pay to the Kauflins the difference between 4 and 4 1/2 per cent for the remaining six or seven months; that Turek 'picked up the loan there [the Millman loan] and offered it to Mr. Kauflin all for four per cent' but the witness did not know whether that was prior to May 1, and did not know whether the Tureks could have gotten control of the loan prior to May 1; that Kauflin told him prior to May 1 that he (Kauflin) was not going through with the contract; and that prior to May 1, the Tureks had agreed to finance the $3,000 loan at 4 per cent.
A suit for specific performance of a contract to convey land involves title to real estate within the meaning of Art. V, § 3, 1945 Mo.Const., V.A.M.S., and, thus, this court has jurisdiction. Drake v. Hicks, Mo., 249 S.W.2d 358, 360.
A vendor may have specific performance of a contract for the sale of land. Eisenbeis v. Shillington, 349 Mo. 108, 113, 159 S.W.2d 641, 643.
Appellants remind us that Drake v. Hicks, supra, 249 S.W.2d 360[3, 4].
From this eminently correct statement as a premise, appellants take the position that specific performance may not be granted in the present case because to do so, the court...
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