Knapp v. Strauss
Decision Date | 06 March 1933 |
Citation | 58 S.W.2d 805,227 Mo.App. 822 |
Parties | OTTO KNAPP ET AL., APPELLANTS, v. BENJAMIN R. STRAUSS, RESPONDENT |
Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Jackson County.--Hon. Darius A Brown, Judge.
Reversed and remanded.
Mosman Rogers & Buzard and Louis N. Wolf for appellants.
Gossett Ellis, Dietrich & Tyler and B. H. Schwartz for respondent.
--Plaintiffs sought damages for the breach of a contract to buy real estate. At the close of the evidence in chief, defendant requested a peremptory instruction to find for him which the court marked given, and the plaintiffs then took an involuntary nonsuit with leave. It was adjudged that plaintiffs take nothing by their action and that defendant be discharged with his costs. After motion to set aside the nonsuit was considered and overruled, plaintiffs duly appealed and insist that the evidence made a case for the jury.
The suit was instituted against respondent and another, but the codefendant was dismissed from the case for lack of service. The amended petition upon which the case was tried alleges that by a written contract plaintiffs agreed to sell, and the defendants agreed to buy, certain real estate owned by the plaintiffs for a stated consideration of $ 35,000; said contract of purchase to be completed not later than a stated time prior to the 31st day of August, 1932. The provisions of the contract in reference to the sale and purchase are set forth and plaintiffs allege that they were at all times ready, able and willing to perform said contract and convey the property as provided, and that defendants informed plaintiffs that they would not perform said contract and would not purchase said property as provided therein, and that they have failed and refused to buy the property and have breached their said agreement so to do; that at said time the property had greatly depreciated in value and as a consequence of the breach of defendants, plaintiffs have been damaged in the sum of $ 7500 for which judgment is demanded.
The separate amended answer of respondent admits that he and his codefendant on August 31, 1922, did enter into a certain written contract with plaintiffs termed a "Lease and Contract;" but denies that the true meaning and effect of said contract is alleged in plaintiffs' petition, and denies each and every other allegation of the petition. Further answering, defendant pleads that he has paid plaintiffs all rents and all sums of money that may possibly have become due to plaintiffs and denies that any rents or sums of money have accrued to plaintiffs or are owing to plaintiffs under any written contract. There is a further plea of res judicata and estoppel by judgment in a prior suit instituted by the plaintiffs against the defendants to recover rents due under the contract, in which said suit a judgment was rendered in favor of plaintiffs and against this defendant, and that said judgment was paid and fully satisfied. It is alleged that at the time of the institution of the action for rent said action included or should have included, and that plaintiffs were bound to include therein, all sums that might have been owing to plaintiffs either by way of rents or damages; and that the judgment in the prior suit is a bar to any other action. The answer also alleged that plaintiffs, without the consent of defendant, took possession of the real estate in question and ousted defendant and kept defendants from the use and enjoyment thereof and thereby did abrogate and annul the written lease and contract; that defendants submitted thereto and surrendered all their rights; that plaintiffs have elected to and did cancel and terminate the instrument of lease and contract, and that plaintiffs have elected to and did cancel and terminate all of the provisions of said lease and contract. The reply was a general denial.
The written instrument signed and acknowledged by all the parties was offered in evidence. It is entitled "Lease and Contract." By its terms plaintiffs were designated as "owners" and the defendant and his codefendant were called "tenants." The first part of the instrument contains the terms and conditions of a lease of the real estate in question with improvements thereon by the owners to the tenants for a term of ten years from the first day of September, 1922, to the last day of August, 1932. As rent for said premises the tenants agreed to pay $ 200 per month to the end of November, 1923, and thereafter $ 250 per month to the end of the term and to prepay said rent on the first day of each calendar month. The owners agreed to pay all taxes which could be paid on or before the first day of August, 1922, and the tenants agreed to pay all taxes which could be paid within the term of the lease. There were provisions for the insurance of the improvements on the property for the benefit of the owners and for the application of any insurance collected to the purpose of repair. Other provisions follow, one of which is that, Provisions for the sale and purchase of the property are then set out in the following paragraphs:
The evidence shows that the tenants took possession of the property under the lease and continued in possession thereof until after the middle of March, 1930, at which time they were in arrears for rent to the amount of $ 1150. Plaintiff Otto Knapp represented the plaintiffs in all transactions in reference to the deal. He testified that both plaintiffs owned the property, and also testified that the deed to the property was made in his name. Some time before March, 1930 defendant Strauss informed Otto Knapp that he was going to take over the property himself and assume responsibility therefor. Plaintiff Otto Knapp testified that he had been dealing with Mr. Strauss alone for about two years. On the 7th day of March, 1930, an attorney representing Mr. Strauss wrote to Mr. Knapp that he and Mr. Strauss would be in Kansas City and requested Mr. Knapp to get in touch with them on a day named. Mr. Strauss and his attorney arrived in Kansas City and Mr. Knapp met them on March 16, 1930. Mr. Knapp testified that when Mr. Strauss arrived MR. GOSSETT: "Did he say he threw up the contract?" MR. ROGERS: "No." A. (continuing) "He said he could do nothing further on the contract in reference to payment of the lease or accepting the property at the price agreed upon as a sale." Mr. Knapp also testified that the attorney in the presence of Mr. Strauss told him the same thing; that he had met the attorney before in connection with the deal and knew that he was the attorney representing Mr. Strauss, and when asked to state what the attorney said at the time, answered: ...
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Parkhurst v. Lebanon Pub. Co.
... ... A.L.R. 573, 576; See, Annotation, 32 A.L.R. 585. No ... privilege was conferred upon second party to abandon ... the contract at will. Knapp v. Strauss, 227 Mo.App ... 822, 58 S.W.2d 805, 809. The writing evidenced a binding ... contract for the purchase and sale of the described real ... ...
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City of North Kansas City, Missouri v. Sharp
...change, with time, in its officials; and by the obvious divisibility of the consideration paid for the work. See Knapp v. Strauss, 227 Mo.App. 822, 58 S.W.2d 805 (1933). It is said that the plaintiff was not deprived of any of the fruits of his labor and that he had not done any work for wh......