Kyner v. Bryant

• Decision Date: 02 April 1945
• Docket Number: 39266
• Citation: 187 S.W.2d 202,353 Mo. 1212
• Parties: Thomas A. Kyner v. Florence Lowe Bryant, Appellant
• Court: Missouri Supreme Court

187 S.W.2d 202

353 Mo. 1212

Thomas A. Kyner v. Florence Lowe Bryant, Appellant

No. 39266

Supreme Court of Missouri

April 2, 1945

Rehearing Denied May 1, 1945.

Appeal from Jackson Circuit Court; Hon. Brown Harris Judge.

Affirmed.

Raymond E. Martin, Cowgill & Popham and Sam Mandell for appellant.

(1) In his first amended petition on which the case was tried plaintiff pleaded and relied on a parole novation or modification of the method of payment of the $ 38,000 cash balance due under and provided in the original contract plaintiff's Exhibit "7"; the record contains no proof of any novation or modification and so, plaintiff was not entitled to judgment. Walker v. Bohannan, 243 Mo. 119, 147 S.W. 1024; Laclede Construction Co. v. Tudor Iron Works, 169 Mo. 137, 69 S.W. 384; Home Trust Co. v. Shapiro, 228 Mo.App. 266, 64 S.W.2d 717; Place v. Parker, 180 S.W.2d 539; Hackbarth v. Gibstine, 182 S.W.2d 113. (2) The record contains no proof of a valid tender by the plaintiff either under the original contract or under his pleaded novation or modification; his proof showed only a conditional promise, and not a binding agreement by the loan company to make the loan, and so it was error to enter a decree for plaintiff. Wimer v. Wagner, 323 Mo. 1156, 20 S.W.2d 650, 79 A.L.R. 1231; Suhre v. Busch, 343 Mo. 170, 120 S.W.2d 47. (3) On the weight of the evidence, Mrs. Bryant did not consciously and knowingly assent or agree to the contract of sale pleaded by plaintiff, and judgment should have gone in her favor. (4) Specific performance is not a matter of absolute right, and on this record, plaintiff was not, in good conscience and equity, entitled to the decree of specific performance. Ranck v. Wickwire, 255 Mo. 42, 164 S.W. 460; Place v. Parker, 180 S.W.2d 539; Hackbarth v. Gibstine, 182 S.W.2d 113.

Charno & Drummond and Roy W. Rucker for respondent.

(1) If it was indispensable to plaintiff's case to show an agreement that he was to have the privilege of paying $ 20,000 of the purchase price by the proceeds of a loan to be obtained by him to be secured by a deed of trust on the property, it was proved by an abundance of substantial evidence, much of which was uncontradicted and undenied. DiFranco v. Steinbaum, 177 S.W.2d 697; Meier v. Grocery Co., 20 S.W.2d 605; Muegler v. Crosthwait, 179 S.W.2d 761. (2) Defendant's assignment of error with respect to tender is not good because: Under the evidence, time was not of the essence; therefore, tender requirements were fulfilled by the allegations of same in the amended petition and by the offer of tender at the trial. 58 C.J., pp. 1092, 1097, 1111; Walker v. Owen, 25 Mo.App. 587; Scheerer v. Scheerer, 287 Mo. 92, 229 S.W.2d 192; Branch v. Lee, 159 S.W.2d 677. (3) Defendant wholly excused tender by repudiation of the contract on January 6, 1944. 58 C.J. 1111; Deichmann v. Deichmann, 49 Mo. 107; Katz v. Dreyfoos, 26 S.W.2d 999. (4) Under the pleadings, tender was not an issue. Tevis v. Tevis, 167 S.W. 1003. (5) Defendant has not sustained her burden of proving that she did not knowingly assent to the contract of sale and the chancellor's decision on this point should be adopted. State ex rel. v. Shain, 349 Mo. 460, 162 S.W.2d 255; Crawford v. Metropolitan Life Ins. Co., 167 S.W.2d 915; Reynolds v. Reynolds, 45 Mo. 622; Hauschild v. Davis, 183 S.W.2d 66. (6) On the record, plaintiff is entitled to a decree of specific performance. Berberet v. Myers, 240 Mo. 58, 144 S.W. 824; Maybee v. Moore, 90 Mo. 340, 2 S.W. 71; Martin v. Harrington, 174 Mo.App. 707, 161 S.W. 275.

Van Osdol, C. Bradley and Dalton, CC., concur.

OPINION

VAN OSDOL

Appeal from a decree of specific performance of a contract for the sale of real property.

October 25, 1943, defendant (appellant), the owner of 220 acres of land in Jackson County, entered into a written contract to convey the land to plaintiff (respondent) for a consideration of $ 40,000 of which $ 2000 was paid when the contract was signed, and $ 38,000 was to be paid "cash on delivery of deed." It was agreed, "The seller shall, within ten . . . days from the date hereof, deliver to the buyer" an abstract of title; "The buyer shall have ten . . . days" thereafter to examine the abstract; "If the seller has a merchantable fee simple title to said property, the seller shall deliver to the buyer at the office of . . . J.C. Nichols Investment Company General Warranty Deed, properly executed and conveying said property . . .; the buyer shall then and there pay the balance, if any, of said cash payment . . ."; if there are objections to the title, the seller shall have any defects in the title corrected "within 30 days from date of delivery of such objections . . ." It was further agreed, "If the seller has kept his part of this contract, and the buyer fails to comply with the contract on his part as herein provided, within five . . . days thereafter, then the money deposited as aforesaid is forfeited by the buyer, and this contract may or may not be operative thereafter, at the option of the seller. Time is of the essence of this contract." It was alleged by defendant that, when the contract was signed, surgery and nervous shock had rendered her mentally incompetent to transact any business and she did not consciously and knowingly agree to sell the land to plaintiff.

It is contended by defendant there was no evidence showing a modification of the contract (as plaintiff had alleged) whereby defendant agreed plaintiff should have the privilege of paying $ 20,000 of the purchase price from the proceeds of a loan (from a mortgage company) to plaintiff; the evidence shows no tender of performance by plaintiff either under the original contract, or under the alleged modification; and, under the evidence as a whole, plaintiff was not, in good conscience and equity, entitled to a decree. On the other hand, plaintiff contends that defendant did not sustain the burden of proving she did not knowingly assent to the contract of sale; that if it is essential to plaintiff's case to show an agreement that he was to have the privilege of paying $ 20,000 of the purchase price by the proceeds of a loan, such agreement was established by the evidence; and that plaintiff was excused from making a tender by the repudiation of the contract by defendant. Moreover, plaintiff contends, time was not of the essence of the contract, and the requirements of a tender were fulfilled by the tender which the evidence shows was made at the trial.

The land involved is generally tillable, although seeded in grass; thirty acres, however, are in trees and brush. The land lies in such proximity to Kansas City as to be suitable for subdividing. Extensive and valuable improvements, consisting of a large modern house, a studio, and appurtenant outbuildings including a garage, had been constructed upon the land; the buildings are of unique and distinctive architecture, and in fairly good condition. Real estate dealers, witnesses for plaintiff, were of the opinion the land, including the improvements, is of value $ 37,225 to $ 40,000. A real estate dealer, witness for defendant, was of the opinion the land, including the improvements, is reasonably worth $ 64,340.

The parties had been negotiating for several months concerning the sale, the negotiations for defendant being conducted by Ray D. Jones of the J.C. Nichols Investment Company to whom defendant had given the exclusive sale listing of her property. In the spring of 1943, plaintiff had offered $ 40,000 and "a vacant lot" in exchange for the land; this offer was rejected by defendant. And about the month of August, 1943, a contract had been prepared for the sale of the land to plaintiff, purchase price $ 40,000, pursuant to a tentative verbal agreement, but defendant did not sign the contract.

Defendant, who is about sixty-five years old, had been for some years suffering from a thyroid condition which was toxic at times. She had high blood pressure, and badly infected tonsils, and was also afflicted with an inflammation of a nevus on the left hip which was manifested by a large, darkened, and ugly-looking area, irregular in shape. Defendant was admitted to Menorah Hospital, October 19, 1943. Her doctor thought it necessary that the nevus be removed; this was done surgically, October 21, 1943, by the making of a deep incision, the removal of a large amount of skin and fatty tissue down to the muscle, the insertion of drains, and the closing of the wound by suture. Defendant, according to her physician, was "mentally upset" before and after the operation; she was rather difficult to handle after the operation, "and it was necessary to administer sedatives, opiates, naturally, and she suffered a great deal of pain. The drain stopped draining and the hot applications had to be used, and finally she made an uneventful recovery." While defendant was in great distress, her physician testified he "wouldn't say it affected her mind . . . I don't think (she was) just 100 per cent responsible, because she did things there which I don't think a person that feels normally will do"; he had no difficulty in making her understand his questions, and she answered intelligently. October 25th, defendant's pulse rate was 96, and her temperature was 100-plus degrees; on that and the preceding day she was able to get out of bed and go to the bathroom; and she was "up and about" on November 3d. Four witnesses -- defendant's niece, defendant's sister-in-law, a nurse, and a friend -- testified defendant was in great pain, weak, nervous and "very ill." Defendant was dismissed "ambulatory" from the hospital November 6th.

It was the testimony of Ray D. Jones that defendant called him by telephone the evening of October 24th, asking him to bring a contract (for...