Lancaster v. Simmons

• Decision Date: 18 August 1981
• Docket Number: No. WD,WD
• Parties: Otis E. LANCASTER, et al., Respondents, v. Edward L. SIMMONS, et ux., Appellants. 31627.
• Court: Missouri Court of Appeals

Page 935

621 S.W.2d 935

Otis E. LANCASTER, et al., Respondents, v. Edward L. SIMMONS, et ux., Appellants.

No. WD 31627.

Missouri Court of Appeals, Western District.

Aug. 18, 1981.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Sept. 22, 1981.

Howard D. Lay, Griffin, Dysart, Taylor, Penner & Lay, P. C., Kansas City, for appellants.

Elvin S. Douglas, Jr., Crouch, Crouch, Spangler & Douglas, Harrisonville, for respondents.

Before KENNEDY, P. J., and SHANGLER and WASSERSTROM, JJ.

WASSERSTROM, Judge.

This case comes here for the second time. As a result of the original trial, a judgment was entered quieting title in the Lancasters and giving them possession and other relief. On the first appeal, Lancaster v. Simmons, 570 S.W.2d 742 (Mo.App.1978), that judgment was reversed and specific performance was ordered in favor of the Simmons upon certain conditions. On remand, a further hearing was held as a result of which an order was entered on January 23, 1980, ordering cross-performance by the parties within fifteen days. A further hearing was held in February 1980, at which the court determined that the Simmons had failed to perform as ordered and therefore ordered title quieted in the Lancasters. The Simmons now appeal from the February 1980 judgment.

The disputes between the parties originated with a contract dated January 8, 1968, under which Otis E. Lancaster and members of his family agreed to sell 412 acres of rural land to Edward L. Simmons and his wife. The terms called for a price of $90,000, payable as follows: $100.00 down, $9,900.00 by May 1, 1971, and $2,000 on or before December 1, 1968, and on each succeeding December 1st thereafter. Interest at 6% was payable semiannually on December 1 and June 1 of each year beginning June 1, 1968. The buyers were to pay taxes, and if they failed to do so the sellers were privileged to pay the taxes and in such event recover the amount thereof from the buyers together with interest at 8%. The sellers were given the option to declare a forfeiture of the contract in the event the buyers failed to pay any principal payment within a 90 day grace period after due date.

Simmons made a $100.00 down payment on January 8, 1967, a further payment of $1,368.40 in August 1968, and a $4,770.00 payment in February 1969. He then sent a check in August 1969 in the sum of $2,676.74 which was dishonored by the bank. At the request of Lancaster, the check last mentioned was replaced by a new one in September 1969.

A dispute arose over the September 1969 check because of an endorsement placed thereon by Simmons. Lancaster refused to cash the check and declared the sale contract forfeited for delinquency in payment. He thereafter filed the present suit for possession and in August 1973 obtained an order from the circuit court restraining Simmons from making certain use of the land. Judgment was entered for the Lancasters on May 10, 1976, and the Lancasters obtained possession under court process in June, 1977.

The 1976 judgment was reversed by this court on the ground that the endorsement placed by Simmons on the September 1969 check was proper and that the refusal of Lancaster to accept that check excused tender by the Simmons of subsequent accruing installments. The opinion of this court concluded with the following direction:

"The judgment is reversed and the case is remanded with directions to award defendants a decree of specific performance upon their tender into court of their obligations under the contract for deed: full payment of the balance due on the purchase price with interest at the contract rate; the taxes paid by plaintiffs with interest according to the contract to the date of entry of the decree; less the cost of the title insurance policy provided by plaintiffs; and to enter judgment against plaintiffs and in favor of defendants upon all of plaintiffs' claims."

The mandate of this court was filed in the circuit court on October 13, 1978. New disputes immediately arose between the parties. For one thing, the Lancasters claimed interest on all past due principal payments at 8%, whereas the Simmons claimed that if any interest was due at all, it should be only at 6%. For another thing, the Simmons demanded damages because of the issuance of the restraining order against them in 1973, together with restitution for their exclusion from possession following the circuit court judgment, and demanded that these damages be offset against the amounts due by them under the contract. Lancaster had a deed signed by all members of his family prepared for delivery but declined to deliver the deed until payment by the Simmons; while the Simmons at the same time refused to make any tender of money until the disputes between the parties were settled and receipt of good title by them was assured.

After two months of argument, the Simmons filed on December 13, 1978, a Motion to Follow Mandate of Court of Appeals, a Motion for Restitution and a Motion to Assess Damages on Restraining Order Bond and for Loss of Use and Possession. The prayer in the Motion to Follow Mandate was as follows: "Defendants pray that the trial court reverse its previous order and enter judgment in the form of Exhibit A attached and provide for full payment less allowance for taxes, interest and other damages while Plaintiffs were in possession under the judgment now reversed or for full payment with an offsetting judgment under the following motion for restitution with all costs taxed against Defendants." No tender of any kind into court accompanied the filing of these motions.

The arguments between the parties continued for another full year. The opposing contentions are summarized in a series of letters which passed between counsel. One of these, a letter from the Lancasters' lawyer to the Simmons' lawyer, stated: "I * * * would call your attention to the fact that we have never received a tender of funds either in the amount claimed by us, or in the amounts admittedly due under your calculations. My proposals for sums due have been summarily rejected without any attempt on your part to reveal the method of your calculation. * * * My only reason for reluctance at this time to agree on possession is the lack of assurance that the purchase price will be forthcoming. In view of the history of this case and Mr. Simmons' failure to make payments or tender of payments through the years, causes me considerable concern about his ability to provide the portion of the purchase price now past due. If you can provide assurance of funds available from financial institutions or other source of funding, I will be happy to favorably consider the request for possession by agreement." The Lancasters' lawyer further wrote on August 21, 1979, as follows: "I want to reiterate that following the Court of Appeals' Order we assumed that Mr. Simmons would make a tender of the purchase price to accompany his request for possession * * * We are desirous of closing the transaction as soon as possible, and stand ready to do so. I have had the deed signed for some period of time from members of the family, and as soon as we can be assured of the receipt of the proper amount of funds we will be in a position to close."

Simmons' position, on the other hand, is stated by a letter from his lawyer dated September 20, 1979, which states: "Ed wants to have a voluntary commitment of you and your client to close this deal as an ordinary real estate sale and closing at some date agreed upon in the near future or he wants a date for hearing by the Court to force the closing. * * * You can be assured as requested that the proper amount of funds will be paid at closing. The question is whether we must pay the accrued interest and taxes without a hearing on the adjustment under our claims for restitution and damages or to wait and pay the net amount after those damages are assessed by the Court. * * * Will you and your client close the deal and make some provision for security when and if Simmons prevails on his damage claim? If not, what is your proposal to compensate him for the lost use of the premises since the injunction and/or the eviction. If you have no proposal or interest in either of the foregoing what exactly do you propose to give marketable title pending a decision on these claims? * * * "

Finally a new hearing was held in the circuit court in January 1980, to determine the disputes. The court found the taxes and interest were due by the Simmons in the amount of $17,109.62; That there were principal payments past due in the amount of $31,900.00 on which interest was due at 8%; that the principal sum not yet due was $56,000.00; that total interest due on the purchase price amounted to $95,139.98; and that Simmons was entitled to offsetting restitution in the amount of $1,391.83 based on net rentals received by Lancaster after he obtained possession in 1977 under the circuit court judgment. In keeping with those findings, an interlocutory decree was entered on January 23, 1980, ordering that Lancaster tender a deed to the property within 15 days and that within the same period of time Simmons and his wife sign a note secured by deed of trust for the unmatured balance of the purchase price and that they tender to the court certified funds in the aggregate amount of $142,332.77, plus a per diem amount of $35.00 to cover interest from the date of the decree until payment into the registry of the court.

The parties appeared in court by counsel on February 7, 1980, at which time Lancasters' attorney was prepared to deliver the warranty deed. However, Simmons' attorney stated a refusal by his clients to make any tender as ordered by the interlocutory decree, on the following grounds: "(T)here does have to be a final judgment, and I did not consider that judgment that you previously entered to be such a final judgment. It's our position that if judgment had been in accordance with the Mandate of the Court of...