P. R. T. Inv. Corp. v. Ranft

• Decision Date: 13 October 1952
• Docket Number: No. 43063,No. 1,43063,1
• Citation: P. R. T. Inv. Corp. v. Ranft, 363 Mo. 522, 252 S.W.2d 315 (Mo. 1952)
• Parties: P. R. T. INV. CORP v. RANFT et al
• Court: Missouri Supreme Court

Page 315

252 S.W.2d 315

363 Mo. 522

P. R. T. INV. CORP v. RANFT et al.

No. 43063.

Supreme Court of Missouri, Division No. 1.

Oct. 13, 1952.

Motion for Rehearing or to Transfer to Court en Banc Denied

Nov. 10, 1952.

Erwin Tzinberg, Clayton, Alfred W. Petchaft, St. Louis, for plaintiff-appellant.

Scott & Kroening, William C. Scott and Robert W. Kroening, St. Louis, for respondents.

VAN OSDOL, Commissioner.

Action for specific performance of a contract providing for the sale of improvements, a two-story building and equipment therein, on lots and parcels of land situate in Overland; to enforce a ninety-nine year lease on the ground; and for an accounting of the rents and profits received by defendants after August 1, 1950. The trial court found the issues in favor of defendants, denied the relief sought by plaintiff, and rendered judgment for plaintiff for $1,000, the earnest money paid by plaintiff's assignor to defendants. Plaintiff has appealed.

This case treats with some of the requirements essential in invoking the equitable remedy of specific performance of contracts.

The equitable remedy of specific performance presupposes the existence of a valid contract between the parties to the action, or between those through whom they claim. The contract must be a concluded contract--there must have been a clear mutual understanding and a positive assent on both sides as to the material terms, and the contract must be sufficiently definite and certain to enable the court to decree its specific performance. A court cannot make a contract for the parties and then decree its performance. Rayburn v. Atkinson, Mo.Sup., 206 S.W.2d 512; Baldwin v. Corcoran, 320 Mo. 813, 7 S.W.2d 967; Terry v. Michalak, 319 Mo. 290, 3 S.W.2d 701; Huff v. Shepard, 58 Mo. 242; Blake v. Shower, Mo.App., 207 S.W.2d 775; Place v. Parker, Mo.App., 180 S.W.2d 538; Creston Apartments Corp. v. Philip Gertler Electrical Contracting Co., 229 App.Div. 450, 242 N.Y.S. 396; Honeyman v. Marryatt, 6 H.L. Cases 112, 10 Reprint 1236; 58 C.J., Specific Performance, Secs. 95-96, pp. 929-933.

In January 1950, one Jack Tzinberg, assignor of plaintiff, entered into negotiations for the purchase of the property involved herein. The negotiations were carried on with defendants, owners of the property, through the Henry H. Haffner Realty Company by Henry H. Haffner personally. As a result of these negotiations an 'earnest money' contract was prepared in which contract it was provided that defendants agreed to sell and plaintiff's assignor agreed to purchase the improvements with all equipment therein belonging to the sellers, defendants, but not including the described ground; and the sellers, defendants, additionally agreed to give the purchaser (plaintiff's assignor), his heirs or assigns, 'a 99 year lease on the ground at a rental of $1000.00 per month * * * said purchaser, his heirs or assigns, are to have an option from the said seller(s), his heirs or assigns, to purchase the ground at the end of 20 years of said lease at a price of $10,000.00 cash.' The total purchase price was $88,500 and it was provided that the sellers were to take and the purchaser agreed to give as a part of the consideration a $73,500 note, interest 1/4%, secured by a (first lien) deed of trust on the property. The note, including principal and interest, was to be amortized monthly over a period of fifteen years. The purchaser, plaintiff's assignor, paid $1,000 'earnest money' and undertook to pay the balance, $14,000, in cash on the 'closing date,' July 1, 1950.

Tzinberg, plaintiff's assignor, signed the contract on the date thereof, January 26, 1950, and Haffner took the contract to the residence of defendants; but the defendant husband, Peter Ranft, stated that he wished the closing date changed from July 1st to August 1st, and he desired the use of one of the apartments in the building rent free until February 15, 1951. Haffner returned to the home of Tzinberg who agreed to the requests of Ranft. Tzinberg, however, also desired an additional change in the contract as originally drafted and inserted the additional clause, 'Subject to purchaser accepting the seller's lease on ground.' The parties, plaintiff's assignor and defendants, signed the contract as changed that same evening, January 26th. All drafts of leasehold agreements thereafter submitted to plaintiff by defendants were rejected by plaintiff.

The trial court upon defendants' objection refused plaintiff's proffer of the testimony of Tzinberg that he had inserted the clause merely because he wanted an opportunity to have the lease 'checked' by an attorney 'to see that it conformed with the terms of the sales contract.' However, there was no objection interposed to Haffner's testimony that he had told defendants of Tzinberg's expressed explanation of his reason for inserting the clause. Haffner testified he had told defendants that Tzinberg wished his lawyer to 'check' the lease 'to be sure that it was complying with the terms of that contract.' On the other hand, defendant Peter Ranft testified he had said, during the negotiations, that he would not sign the contract of sale 'unless they put that (inserted clause) in.'

The trial chancellor was of the opinion that the insertion of the clause, 'Subject to purchaser accepting the seller's lease on ground,' rendered the contract as originally prepared subject to further agreement between the parties as to the terms of the lease. 'Either had a right to rely on the clause. It is evident that the defendants, at least, had in mind a negotiation over the terms of the lease and if the parties failed to agree, even though the failure was caused by the unreasonable demands of one or the other, nevertheless, the Court would be confronted with the duty of writing a lease for the parties in order to enter a decree of specific performance.'

Plaintiff-appellant contends that the trial chancellor erred in finding that further negotiation relating to the terms of the lease was contemplated. Plaintiff-appellant contends the insertion of the stated clause did not make the sale contract incomplete or conditional; that, in determining the rights of the parties, greater weight should be given to their intention than to the particular words used; that the...