Knapp v. Strauss

• Decision Date: 06 March 1933
• Docket Number: No. 17671.,17671.
• Citation: 58 S.W.2d 805
• Parties: OTTO KNAPP ET AL., APPELLANTS, v. BENJAMIN R. STRAUSS, RESPONDENT.
• Court: Missouri Court of Appeals

58 S.W.2d 805

OTTO KNAPP ET AL., APPELLANTS, v. BENJAMIN R. STRAUSS, RESPONDENT.

No. 17671.

Kansas City Court of Appeals. Missouri.

March 6, 1933.

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.

BOYER, C.

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, "in case of violation or default of tenants, the owners will be entitled to immediate re-entry upon and repossession of the entire premises, and may wholly terminate this lease... . And the owners may in reduction of losses rent out the premises in whole or part to other tenants upon such terms and figures as to the owners may seem best; ..." Provisions for the sale and purchase of the property are then set out in the following paragraphs:

"Tenants further obligate themselves to buy the leased premises from the Owners at such time as the Tenants may elect before the expiration of the said leased term, at the price of Thirty-five Thousand ($35,000.00) Dollars cash, and the Owners (provided Tenants shall have fully paid and performed the lease to that time) agree to sell said property and to convey the same (including any insurance policies paid for by Tenants, to Tenants or their order, at that price, by General Warranty Deed, with title good and free from all encumbrances except the taxes and assessments which under this lease are to be paid by the Tenants). Nothing herein however is intended to prevent the Owners prior to the consummation of said sale from placing such mortgages or deeds of trust upon the property as they may see fit in the meanwhile, provided, however, that such encumbrances shall not exceed said purchase price and shall not bear more than six per cent per annum interest. Any encumbrances now or hereafter existing against the property created by, for or on account of the Owners shall however, so far as the same constitute liens at the consummation of the sale be deducted from the $35,000.00 of purchase price above mentioned, so that the total cost of the premises free and clear to the Tenants, including encumbrances at the time existing against the same, shall not exceed the said $35,000.00. The Owners will protect and defend the Tenants and the property against foreclosure or loss by reason of any encumbrances created by or through the Owners. The obligations of Tenants under this lease shall cease from and after the consummation of said sale.

"Whenever the Tenants are ready to consummate said purchase, they shall give the owners written notice thereof. The Owners will within reasonable time after receipt of such notice deliver to Tenants a complete abstract of title covering said property. The Tenants shall have fifteen (15) days for examination of such abstract, and shall in writing notify the Owners whether the title be found good or bad, and if defects be found, such defects shall be specified, and the Owners shall be allowed thirty (30) days within which to remedy such defects. The purchase shall in any event be completed by conveyance of the property and payment of the purchase price, within sixty (60) days from the delivery of notice of intent to purchase, and said notice must be given by Tenants not later than three (3) months before the end of the term."

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 "I asked him what were his intentions with reference to the property. His answer was that he could do nothing... . That he could not follow up the contract; that he couldn't do anything further for me." 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: "He repeated that Mr. Strauss could absolutely do nothing for me; he couldn't fulfill his contract; that I could do as I pleased in reference to the matter; that I could seek my counsel and do as I liked about it; that I could take possession of my...