Koob v. Ousley

• Decision Date: 08 April 1922
• Docket Number: No. 22428.,22428.
• Parties: KOOB v. OUSLEY.
• Court: Missouri Supreme Court

240 S.W. 102

KOOB v. OUSLEY.

No. 22428.

Supreme Court of Missouri, Division No. 1.

April 8, 1922.

Appeal from Circuit Court, St. Louis County; G. A. Wurdeman, Judge.

Action by George O. Koob against Charles Ousley. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with direction to enter judgment for defendant.

This is an action in the nature of a suit in equity, for specific performance of an alleged contract on the part of defendant to sell and convey to plaintiff a lot of land in St. Louis county. There is no dispute about the facts, which consists of writings in evidence.

The defendant was a banker, residing and doing business at Crocker, Mo. The plaintiff resided at St. John's Station within two blocks of the land in question. The transaction counted upon as a sale and purchase of the land was conducted by correspondence through his agent, L. Wm. Gerling, president of the L. Wm. Gerling Realty Company, doing business at St. John's station, the plaintiff having employed him for that purpose, for a compensation to consist of the amount of the regular commission on such transaction. The transaction was inaugurated by the following letter from Gerling to Ousley, dated August 2, 1919:

"I am informed that you own the property described in enclosed receipts.

"Will say that enclosed proposition means $800.00 net to you outside of interest and rent adjustments, as Mr. Koob is willing to pay me commission for handling the deal.

"If you care to accept please sign the earnest money receipts and let me know who holds the first deed of trust, so that we can have the title run down."

The defendant answered, under date on August 4th, as follows:

"Your letter of August 2d received with blank receipts enclosed for earnest money on my property located at St. John station.

"These blanks are possibly all right, but they are a different form than our bank requires herein closing up real estate deals, so I prefer not to sign them, but instead agree to the terms of the sale, and will gladly forward warranty deed to this property to any bank in St. Louis which you designate, and will make warranty deed to whom you direct, and will instruct the bank to turn the deed to you or your client upon the receipt of $800.00 net to me, less interest and rent adjustments on loan to date of transfer.

"The loan on this property is held by H. B. Surkamp, who I think is next door to you, and you may look the title up, as he has the abstract of title to the date of the execution of mortgage, and there has never been any transfer of any nature since that date.

"If you desire deed sent to your bank, let me know to which bank I shall forward it, and I will attend to it promptly.

"As I understand it, you can receipt Mr. Koob for this earnest money.

"Being a banker, 1 naturally desire to handle this through your bank there, and upon your advice as to which bank to send papers to I shall attend to this at once."

The blank receipt for earnest money referred to in both letters is as follows:

"St. Louis County, Mo., Aug. 2, 1919.

"Received of George O. Koob the sum of one hundred and 00-100 dollars, as earnest money and part purchase motley for a certain parcel of improved property, lying in the county of St. Louis, state of Missouri, being south one-half of lots 33 & 34 of Home Heights or the northeast corner of St. Charles Rock road and Eminence Blvd., which property is this day sold to George O. Koob for the total sum of twenty-four hundred and 00-100 dollars, payable as follows: Eight hundred and 00-100 dollars cash, and balance to assume a first deed of trust for $1,600.00 now on said property, with interest on deferred payments at the rate of 6 per cent., payable semiannually; said deferred payments to be secured by first deed of trust on said premises. The title to said property to be perfect, and to be conveyed by warranty deed, free from liens and incumbrances, except the taxes for the year 1919 and thereafter, and which the undersigned purchaser assumes and agrees to pay; also subject to restrictions recorded, if any. Rents And interest to be adjusted to date of closing.

"If upon examination the title be found imperfect, and cannot be perfected within a reasonable time, said George O. Koob is to be paid a reasonable cost of examining the title, and the earnest money is to be refunded.

"This sale under this contract to be closed on or before Aug. 31, 1919, at the office of L. Wm. Gerling Realty Co., and if not closed by that time, owing to the failure or neglect of the purchaser to comply with the terms herein, the above-mentioned earnest money to be forfeited, but such forfeiture shall not release said purchaser herein from any liability for the fulfillment of this contract of sale, or the payments of money herein mentioned, if said seller shall elect to enforce fulfillment of the same. "This sale under above terms and conditions is made subject to the approval of the owner of the property.

"Accepted under the above terms and conditions."

On August 7th, Mr. Gerling answered the letter of August 4th, as follows:

"In answer to your letter of the 4th inst., I enclose statement which you will have to complete as I do not know the amount of rent nor how same is paid.

"Will ask you to draw on me for the balance, with warranty deed attached in blank, through the Wellston Trust Co., 6212 Easton Ave., and' with instructions to them that I am to pay file draft as soon as I can have the title run down.

"Mr. Surkamp is trying to get the title for me, and it will probably be about 10 days before I can have same completed to date."

On the next day defendant wrote Gerling as follows:

"Your letter of the 7th inst. fo hand, and contents noted, and in reply beg to advise, that your proposition came too late for acceptance, as I have already signed contract of sales on this property.

"I rather suspicioned that your earnest money payment was not in good faith, and rather looked for a bona fide proposition from another source, and it came, hence the reason for not signing up the one, which you originally sent.

"I thank you for the offer outlined in yours of the 7th, which II respectfully decline."

Thereupon on August 11th, this suit was brought and a notice lis pendens immediately followed.

This being substantially all the evidence, the defendant asked an instruction in the nature of a demurrer to the evidence which was taken, with the case, under advisement by the court, and was, on April 5, 1920, refused, and the judgment appealed from entered. In entering judgment the court said:

"There will be a finding and decree for plaintiff in this case, for the reason that the earnest money receipt given to plaintiff by Gerling is sufficient to take the case out of the statute of frauds, and the subsequent letter from defendant to Gerling is a full ratification and confirmation of Gerling's act, in giving the receipt and accepting the earnest money."

Lorts & Breuer, of Rolla, for appellant. W. G. Schofield, of St. Louis, for respondent.

BROWN, C. (after stating the facts as above).

1. There is but a single question to be determined in this case, and that a simple one. The facts fully appear in the written communications in evidence, and are undisputed. There only remains the question of law, whether these writings are sufficient to sustain the allegation upon which the action rests, that they constitute such a contract of sale of the land described, as satisfies the requirements of our statute of frauds in such cases. 2. S. (Mo.) 1919, section 2169. This section provides that:

"No action shall be brought to charge * * * any person * * * upon any contract made for the sale of lands * * * unless the agreement upon which the action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person by him thereto lawfully authorized, and no contract for the sale of lands made by an agent shall be binding upon the principal, unless such agent is authorized in writing to make said contract."

Although there has been much litigation involving the application of this provision of the statute of frauds to the facts of a great variety of cases, there has been no uncertainty that it requires that, whatever the note or memorandum in writing may be, it must state with certainty who are the parties to the contract, the land or interest in land involved, and the terms or conditions, upon the performance of which the parties will be entitled to demand its fulfillment. These terms are so essential that the contract cannot exist without them. We have lately considered this question with the citation of numerous authorities in Tracy v. Aldrich (Mo. Sup.) 236 S. W. 347.

In the case before us, Koob is mentioned as the purchaser, and is suing in that capacity, and we thus come to the discussion of the real question, whether or not the correspondence in evidence shows that these parties came to an agreement upon the terms of the alleged contract.

2. The beginning of this negotiation was the employment, by plaintiff, of Mr. L. Wm. Gerling as his a gent to purchase this land. There was a mortgage on it to secure an obligation of the owner for $1,600 with interest at the rate of 6 per cent. per annum, which, of course, became a feature in any purchase which might be made by Mr. Gerling for his client. He opened the negotiation by a letter dated August 2d, 1919, disclosing the fact of his agency and offering $800 for the equity of redemption in the property. Assuming, as we do, that the name of the purchaser, the description of the property and the price are sufficiently stated in the correspondence before us, it remains to determine, by analysis of its terms, whether this correspondence amounts to an agreement on the part of defendant to sell and convey the property to plaintiff, upon the terms stated in the petition. The defendant stands upon the assertion...