McCullough v. Newton
| Decision Date | 10 July 1961 |
| Docket Number | No. 48535,No. 2,48535,2 |
| Citation | 348 S.W.2d 138 |
| Parties | Nettie McCULLOUGH, Appellant, v. Pauline B. NEWTON, Respondent |
| Court | Missouri Supreme Court |
Clay Cantwell, Branson, for appellant.
Joe R. Ellis, Royle Ellis, Cassville, for respondent.
This suit involves title to approximately 120 acres of land in Stone County, adjoining the Table Rock Reservoir. Plaintiff filed suit for rescission of her contract of sale, claiming a breach, and for damages; defendant's answer was amended so as to pray specific performance. The answer was treated by the court and the parties as a counterclaim (and see Sec. 509.090 RSMo 1959 and V.A.M.S.}, 1 plaintiff's claims were denied in toto, and specific performance was decreed. Plaintiff has appealed.
On November 20, 1958, plaintiff Nettie McCullough as seller and Pauline B. Newton as buyer executed a contract for the sale of this specifically designated tract; $500 was paid at the time, the total price was $6,500, and the balance was to be paid when 'seller has had full settlement with Government on land taken for Table Rock Reservoir and can deliver a clear title.' The seller was to furnish an abstract within 30 days, and possession was to be given 'on or before the ___ day of when deal is closed, 194_.'
Suit was filed on June 22, 1959. The amended petition is in two counts. In the first, plaintiff alleged: the making of the contract, the fact that a condemnation suit was pending involving land of plaintiff 'adjoining the land described'; that defendant was not to have possession until that case was fully settled; that it had not bee settled; that defendant had, without any authority, breached to contract by taking possession of the land about April 1, 1959, and by committing waste thereon; that plaintiff had elected to rescind the contract, and was ready to tender the $500 deposit; that plaintiff had no adequate remedy at law, and that she therefore prayed rescission. In the second count (which adopted various allegations of the first) damages of $5,000 were prayed because of defendant's alleged destruction of timber, grading off of topsoil, and destruction of a stock pond. It was not alleged that the government was taking any of the tract in question. Defendant's answer, stated separately as to each count, admitted the making of the contract and the pendency of the condemnation suit at the time of the contract; it denied generally plaintiff's other allegations. Defendant alleged affirmatively: that after the execution of the contract plaintiff and defendant agreed that defendant, her agents and assigns, could go into possession and make improvements on the land; that they did enter into possession and make valuable improvements and spent large sums in doing so; that defendant was ready and willing to perform the contract fully, upon plaintiff's compliance. She prayed that the rescission count be dismissed and for general relief; also, that the count for damages be dismissed and defendant discharged. At the close of the evidence defendant was permitted, by leave, to amend her answer to count one by adding the following: The record of the judgment entry recites that plaintiff consented to this amendment. That assertion is not denied in the briefs.
A Mr. Broadhurst negotiated this contract for Mrs. Newton; they had acted together on other deals and were to be partners on this one. There was substntial testimony from Broadhurst and defendant that the question of possession was discussed almost immediately after the contract was signed, and that plaintiff told them that they might enter the property and improve it, preparatory to resale or to developing an airstrip, provided they would let plaintiff 'go along occasionally,' so that people would think that she was having the work done. Broadhurst testified that he told her that they were going to resell or develop the property; that soon after the date of the contract he walked over the land with plaintiff and explained what they intended to do, and that she made no objection; also, that she went with him to visit one or more neighbors to get help in clearing brush along the lake front, in aid of their project. At this point we digress to say that there is a fair inference, resting upon statements attributed to plaintiff, that plaintiff thought that a known sale of this property or an open delivery of possession might adversely affect her settlement with the government on the adjoining land which was actually taken for the lake. There is nothing in this record to show that any such fears were well founded. At trial time settlement had been made, and plaintiff made no attempt to show that her interests had been adversely affected.
We return to the chronology. Someone, probably Broadhurst, conceived the idea that this property was suitable for a 'ridge' airstrip adjacent to the lake. During the latter part of March 1959, defendant contracted to sell the land to one Hilderhof of kansas City, having interested him in the project. Soon after April 1, a partner or associate of Hilderhof, Lee Brown, went to see plaintiff and he testified that she gave him permission to move a bulldozer and his trailer on the land and to 'go ahead.' This testimony was confirmed by a local witness who was present, one Loren Garrison, who was well known to plaintiff. Apparently plaintiff again stated then that she wanted the project to appear as though she were doing the work. The work of grading the land, removing timber, and draining and filling the pond proceeded promptly, at a cost of approximately $2,700 to Brown and Hilderhof. There was evidence that plaintiff saw the work proceeding, without objection; some of this came from disinterested witnesses. About a month or more after the work started, plaintiff began to make rather vague objections; she stated to Brown, according to his testimony, that she wanted to break her contract and asked if 'we would help' her do it. Defendant's contract with Hilderhof called for immediate possession.
Plaintiff produced no testimony but her own. She denied that she ever gave anyone permission to take possession, and stated that she first learned of the work early in April 1959, which, in fact, was when it began. She testified: that she posted notices on the premises 'not to move in,' and she talked to Broadhurst; that, however, he told her that they had sold the place, that they were going to keep possession, and that she might as well sign a deed; that she did not make final settlement with the government until February 1960; that she had been back to the place a time or two removing some wire, a lawnmower, etc.; that she had given Brown permission to haul gravel from the creek and stock-pile it on the land, but this was not done; that she was unable to get an abstract within 30 days, but neither defendant nor Brown complained. She admitted that she had agreed to accept $6,500 for the land, and denied asking any help to break the contract. There was some confused testimony about setting a closing date for June 23, 1959, because plaintiff was going to close a deal on other land upon that date. We give this no consideration, primarily because we cannot understand it. This suit was filed, as previously stated, on June 22, 1959.
The suit for a rescission was, of course, in equity. The count for damages was based upon a supposed wrongful entry, and apparently sought additional, not alternative, relief. Ordinarily a claim of rescission is inconsistent with a claim of damages for breach of contract. City Light, Power, Ice & Storage Co. v. St. Mary's Machinery Co., 170 Mo.App. 224, 156 S.W 83. The judgment entry shows the waiver of a jury, whether necessary or not. The court found the issues generally against plaintiff on both counts, and found that the contract should be specifically performed. No one asked for special findings. As provided in Sec. 510.310,** all fact issues are therefore 'deemed found in accordance with the result reached.' See also Bank of Brimson v. Graham, 335 Mo. 1196, 76 S.W.2d 376, 382, 96 A.L.R. 399. And in any event we would defer on questions of credibility to the findings of the trial court.
Plaintiff's counsel objected on one or two occasions to the admission of oral testimony of conversations with plaintiff concerning possession of the land; this, on the ground that it was sought thereby to vary the written contract. On other occasions no objections were made to similar testimony. The trial court took the view that this evidence did not constitute an attempt to vary the contract, but that it merely went to show a waiver. Plaintiff has not briefed here the incompetency of this testimony. Its admission, in an equity case, would not be ground for reversal in any event, and we merely consider it or disregard it according to its competency. We determine here that this line of testimony was not incompetent, and that it did merely go to show a waiver of the contract terms or an estoppel. See Katz v. Dreyfoos, Mo.App., 26 S.W.2d 999, 1001, and cases cited; Stout v. Edwards, Mo.App., 210 S.W. 128, 129.
Plaintiff insists: (a) that there was a breach of the contract for which she may rescind; (b) that the court had no jurisdiction to grant specific performance because of insufficiency of defendant's pleading; and (apparently as a separate contention) that the counterclaim did not state a claim on which relief could be granted. A party to a contract may, in certain instances, elect to rescind upon a breach by the other party. Lincoln Trust Co. v. Nathan, 175 Mo. 32, 74 S.W. 1007. Ordinarily, such a breach...
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