Keith v. Tucker
| Decision Date | 17 July 1972 |
| Docket Number | No. 9166,9166 |
| Citation | 483 S.W.2d 430 |
| Parties | E. L. KEITH and Ilda B. Keith, Plaintiffs-Appellants, v. Lola TUCKER and N. C. Carroll, Defendants-Respondents. |
| Court | Missouri Court of Appeals |
Douglas, Douglas & Douglas, Neosho, Robert E. Yocum, Pineville, for plaintiffs-appellants.
Ruyle & Henry, C. E. Ruyle, George A. Henry, Neosho, for defendants-respondents.
The state of facts and circumstances, out of which this curt-tried controversy eventually developed, had its genesis in a casual conversation late in October or early in November 1969 during a chance luncheon meeting between plaintiff E. L. Keith (hereinafter sometimes referred to as plaintiff) and defendants Lola Tucker and N. C. Carroll in a crowded cafeteria at Bentonville, Arkansas. Invited by plaintiff to sit at his table, defendant Tucker (hereinafter sometimes referred to as defendant) mentioned that she was selling her farm and 'was looking for another place,' to which plaintiff responded 'let me sell you mine.' This was a 395-acre tract, known as the 'K--Bar Dude Ranch' and situate in McDonald County, Missouri, just north of the Missouri-Arkansas state line. Subsequent discussions between the parties culminated in the execution by plaintiffs E. L. Keith and Ilda B. Keith, husband and wife, and by defendant Lola Tucker of three instruments dated November 20, 1969, received in evidence and hereinafter referred to as (plaintiffs') exhibits 2, 3 and 4; and on December 4, 1969, defendant Tucker accompanied by defendant Carroll, whose status appears to have been that of an employee, moved onto the ranch. On November 13, 1970, plaintiffs instituted this action in which they sought recovery of possession of the ranch, $5,000 for the alleged wrongful withholding of possession, and for 'grants (sic) and profits . . . at the rate of $750 per month until possession is given.' The issues raised by defendant Tucker's answer and three-count counterclaim, defendant Carroll's general denial and plaintiffs' reply were, following trial on June 22, 1971, determined and adjudicated by the conscientious trial judge in a carefully considered eleven-page written opinion which on July 9, 1971, restored possession of the ranch to plaintiffs and entered judgment in the net amount of $5,105.78 in favor of defendant Tucker and against plaintiffs, from which judgment they appeal.
Determination of the single point in plaintiffs'-appellants' brief depends primarily upon construction of the three aforementioned instruments dated November 20, 1969. Plaintiff, modestly conceding that he was 'a man of considerable business dealings,' drew all of these instruments--'to save lawyers' fees for them (defendants), I agreed to writ it'; and, as becomes immediately apparent from examination thereof, these products of his draftsmanship manifest and exemplify the frailties and infirmities so frequently found in work of this character undertaken by one neither trained nor skilled therein.
Exhibit 2, three 8 1/2 14 pages in length with notarial acknowledgment on a fourth page, was entitled and characterized on the first page as 'LEASE WITH OPTION TO BUY AGREEMENT,' the same caption followed by the page number was placed at the top of the second and third pages, and in the notarial acknowledgment on the fourth page the subscribed instrument was identified as 'the foregoing Lease With Option To Buy Agreement.' (All emphasis herein is ours.) The first paragraph of exhibit 2 read: Throughout exhibit 2, the respective parties were referred to as Lessor and Lessee. The initial 'covenant and agreement' of exhibit 2 was that '(t)he Lessor agrees to lease and the Lessee agrees to lease from the Lessor the following described real estate improvements thereon, and certain listed equipment.' This was followed by a purported legal description of the ranch (which, however, did not name the county in which it was located) and a list of the leased equipment. Exhibit 2 then stated '(t)here is to be built and paid for by Lessor, three (3) 32 ft. by 350 ft. brooder houses on the above property at a cost of approximately $41,000,' listed the buildings on the ranch, and obligated Lessee to pay Lessor '$500 on January 1, 1970, $500 on February 1, 1970, $500 on March 1, 1970, $500 on April 1, 1970 and $500 on May 1, 1970 as lease money only and is not considered as any part of the purchase price of the agreement hereafter mentioned.'
The next paragraph of exhibit 2 provided that '(u)pon payment of the above $2,500 and on June 1, 1970 the second phase of this contract becomes effective.' This 'second phase,' which dealt primarily with purchase of the ranch by Lessee and thus necessarily was predicated upon the prior and prerequisite exercise by Lessee of her option to buy, provided for payment by her of the sum of $166,000 in monthly installments of $1,043.41 each for twenty-three years, those installments including interest on the unpaid balances as computed by Lessor. Near the close of exhibit 2, it was recited that 'Lessee has given to Lessor a certain obligation for $10,000 due her for property' she had sold to one Rader just prior to her chance luncheon meeting with plaintiff in Bentonville, and that 'Lessor has accepted this $10,000 obligation as payment in guaranteeing Lessee will keep the above agreement and make the payments as stated.' Upon trial, plaintiff agreed that by taking this 'obligation' he had received $10,000.
Exhibit 3 was entitled 'CONTRACT FOR THE LEASE OF REAL ESTATE AND EQUIPMENT.' It initially recited that 'Lessor (again identified as both plaintiffs) has agreed to lease to the Lessee (defendant Tucker)' the ranch described as in exhibit 2, 'plus all improvement (sic) thereon, plus 3--32 ft. by 350 ft. broiler houses to be built by (plaintiff) E. L. Keith, plus the following equipment' there listed. Another paragraph dealt with the taking of bids for, and the construction of, the three broiler houses. After expressly reciting that 'this lease does not include . . . (a)ll livestock, all saddles and gear and tools at the saddle barn, the mobil (sic) home that Red Dodson lives in at the saddle barn . . . and 700 bales of choice hay,' this instrument informally detailed the 'saddle horse deal,' i.e., that plaintiff was 'to keep 25 head of over two-year-old horses plus any colts on the farm' and was 'to get the use of South pastures now used by the horses' and 'to furnish necessary grain and hay for the horses'; that defendant was 'to feed and take care of the horses and operate the saddle barn and she is to get 60% and (plaintiff) is to get 40% of all fees charged for trail rides and use of horses'; and that plaintiff 'will be allowed to sell any and all horses any time but (defendant) will have the refusal to buy the horse (sic) at the price offered.' Finally, defendant was given 'the refusal to buy or not to buy' all cattle on the ranch at a price to be determined as there detailed. Notwithstanding the melange of matters gathered into exhibit 3, plaintiff asserted that 'the main purpose of this contract was for renting and leasing of the horses.'
Exhibit 4 was entitled 'LEASE AGREEMENT AND CONTRACT ON REAL ESTATE.' In the first paragraph, it was stated that '(t)his is a lease and agreement' between plaintiffs, jointly identified as Lessor, and defendant Tucker identified as Lessee. This instrument declared that 'Lessor does by these presents lease and demise unto the said Lessee' the ranch again described as in exhibit 2 and the equipment listed in that exhibit. Exhibit 4 then recited that '(i)t is agreed and understood that the terms of this lease is stated and agreed upon in a lease sales agreement between Lessor and Lessee dated November 20, 1969 . . ..' According to plaintiff, this 'contract was wrote for no other purpose except to record.' However, neither the transcript nor the exhibit itself indicates that exhibit 4 (or either of the other two exhibits) was recorded, and upon trial defendant insisted that 'I didn't know anything about recording one.' Defendant Carroll signed as a 'witness' to the signatures of the parties on each instrument, but he was not a party to, and was not mentioned in, any of them.
After defendant Tucker 'got interested' in the ranch but before the foregoing instruments were prepared, she and defendant Carroll told plaintiff that 'if we had the chicken houses, we felt we could make the payments'; and, as we have noted, plaintiffs contracted in exhibits 2 and 3 to build three 'brooder houses' or 'broiler houses.' However, no completion date was specified, construction of these chicken houses was delayed (because of bad weather, so plaintiff said), and defendant was unable to put chickens in them until about April 28, 1970. In the meantime, defendant had 'told (plaintiff) that without the chicken houses I couldn't meet his payments' and she 'was very upset because they weren't being built.' Hence, defendant made no payment until after the 'first batch of chickens went out,' when she deposited the sum of $1,587 in the bank to plaintiff's credit, that being the entire proceeds derived from sale of the chickens 'plus a little extra.' This deposit of $1,587 was the only payment by defendant to plaintiffs prior to June 1, 1970.
The sole point in plaintiffs'-appellants' brief is that '(t)he court erred (a) in holding that plaintiffs exhibits 2, 3 and 4 were leases and not a combination lease and contract of sale and (b) in ordering the appellants to repay $10,000 received as down...
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