Parkhurst v. Lebanon Pub. Co.

• Decision Date: 08 September 1947
• Docket Number: 40180
• Citation: 204 S.W.2d 241,356 Mo. 934
• Parties: H. B. Parkhurst, Appellant, v. The Lebanon Publishing Company, a Corporation
• Court: Missouri Supreme Court

204 S.W.2d 241

356 Mo. 934

H. B. Parkhurst, Appellant, v. The Lebanon Publishing Company, a Corporation

No. 40180

Supreme Court of Missouri

September 8, 1947

Appeal from Laclede Circuit Court; Hon. William E. Barton Judge.

Affirmed.

Claude T. Wood and Harold T. Lincoln for appellant.

(1) The court erred in holding as a matter of fact and law that the agreement in issue was an equitable mortgage. Frizzell v Stewart Lumber Co., 44 S.W.2d 615; Jones v Hubbard, 194 Mo. 147; Huggins v. Safford, 67 Mo.App. 469; Levine v. Humphreys, 249 S.W. 395; Hollmann v. Conlon, 143 Mo. 369; Rector v. Price, 1 Mo. 373; Dunaway v. Day, 163 Mo. 415; Hackett v. Watts, 138 Mo. 502; 18 C.J., secs. 94, 196; 19 Am. Jur., p. 426, sec. 11; Townsend v. Hawkins, 45 Mo. 286; Bobb v. Wolff, 148 Mo. 335; 1 Jones on Mortgages (7 Ed.), pp. 258, 351, 448; Brant v. Robertson, 16 Mo. 129; Donovan v. Boeck, 217 Mo. 70; Carson v. Lee, 281 Mo. 166, 219 S.W. 629; Williamson v. Frazee, 242 S.W. 958; Gerhardt v. Tucker, 187 Mo. 46; 55 Am. Jur., secs. 111, 587. (2) The court erred in failing to find as a matter of fact and law, that time was of the essence in the agreement. Hollmann v. Conlon, 143 Mo. 369, 45 S.W. 275; Branch v. Lee, 159 S.W.2d 677; 55 Am. Jur., secs. 114, 590; Judd v. Skidmore, 33 Minn. 140, 22 N.W. 183, 104 Am. St. Rep. 270; 12 L.R.A. 242; Fitzgerald v. Hayward, 50 Mo. 516; 55 Am. Jur., secs. 111, 587; Wimer v. Wagner, 323 Mo. 1156, 20 S.W.2d 650, 79 A.L.R. 1240; First Nat. Bank v. Glens Falls Ins. Co., 27 F.2d 64; Wiswell v. McGowan, 2 Barb. 270. (3) The court erred in refusing to enter a verdict and judgment for appellant on his petition because there was no substantial evidence to support a verdict for the respondent and against appellant on appellant's petition. 55 Am. Jur., secs. 438, 846; Gibbs v. Sullens, 48 Mo. 237; De Bernardi v. McElroy, 19 S.W. 626, 110 Mo. 650; Ruddick v. St. Louis K. & N.W. Ry. Co., 22 S.W. 499, 116 Mo. 25, 38 Am. St. Rep. 570; Glascock v. Robards, 14 Mo. 350, 55 Am. Dec. 108; 55 Am. Jur., secs. 111, 587; Stinson v. Dousman, 15 L.Ed. 967. (4) The court erred in awarding affirmative relief to the respondent because respondent had not performed nor tendered performance of its part of the agreement. Wimer v. Wagner, 323 Mo. 1156, 20 S.W.2d 650, 79 A.L.R. 1231; Kyner v. Bryant, 353 Mo. 1212, 187 S.W.2d 202; Rogers v. Gruber, 351 Mo. 1033, 174 S.W.2d 830; McQuary v. Mo. Land Co. of Scotland, 230 Mo. 342, 130 S.W. 335; Hollmann v. Conlon, 143 Mo. 369, 45 S.W. 275; Emery Bird Thayer Dry Goods Co. v. Williams, 98 F.2d 166; Doctorman v. Schroeder, 92 N.J.Eq. 676, 114 A. 810. (5) The court erred in holding that there was any question of forfeiture involved in this case. Wimer v. Wagner, 323 Mo. 1156, 20 S.W.2d 650, 79 A.L.R. 1231. (6) The court erred in holding as a matter of fact and law that the forfeiture clause in the agreement was an unenforceable penalty rather than a provision for liquidated damages, and that by reason of this penalty the agreement was not avoided. Hoppock v. Gaines, 284 S.W. 191; Frizzell v. Stewart Lumber Co., 44 S.W.2d 615; Rector v. Price, 1 Mo. 373; Pomeroy v. Fullerton, 131 Mo. 581; Huggins v. Safford, 67 Mo.App. 469; Boulware v. Crohn, 122 Mo.App. 571. (7) The court erred in finding the respondent would sustain damages as a result of the termination of the agreement because such damage bears no relation to the controversy in issue and because the evidence does not support the finding of any damage. DePaige v. Douglas, 234 Mo. 78, 136 S.W. 345. (8) The court erred in admitting testimony relative to a prior lease contract between the parties, over appellant's objection, because the evidence of such prior lease contract had no probative force and such lease had completely terminated.

Paul J. Dillard and Breuer & Northern for respondent.

(1) In determining the agreement of the parties all instruments affecting the transaction and simultaneously executed by them will be construed as component parts of but one contract. Kennedy v. Bowling, 319 Mo. 401, 4 S.W.2d 438; Chernus v. Kennedy-Coats Construction Co., 227 Mo.App. 582, 55 S.W.2d 744; Bailey v. Hannibal & St. J.R. Co., 84 U.S. 96, 21 L.Ed. 611; Empire Gas & Fuel Co. v. Stern, 15 F.2d 323; Western Advertising Co. v. The Star Pub. Co., 146 Mo.App. 90, 123 S.W. 969; Swinney v. Connecticut Fire Ins. Co. of Hartford, 8 S.W.2d 1090. (2) The agreement will be so construed as to give effect to the intention of the parties. O'Conner v. Great Lakes Pipe Line Co., 63 F.2d 523; Stone v. Wandling, 270 S.W. 315; City of St. Louis v. St. Louis & S.F.R. Co., 228 Mo. 712, 129 S.W. 691; North St. Louis B. & L. Assn. v. Obert, 169 Mo. 507, 69 S.W. 1044; Evan v. Swetman, 235 S.W. 502; Ambassador Bldg. Corp. v. St. Louis Ambassador Theatre, 185 S.W.2d 827; Paisley v. Lucas, 143 S.W.2d 262; Thomas v. Utilities Bldg. Corp., 335 Mo. 900, 74 S.W.2d 578; First Natl. Bank, etc., v. West End Bank of University City, 129 S.W.2d 879. (3) Respondent's exercise in 1945 of the 1935 option to buy constituted a binding obligation to pay the balance due on the purchase price. Frizzell v. Stewart Lumber Co., 44 S.W.2d 615; Huggins v. Safford, 67 Mo.App. 469; Lambert v. St. Louis & Gulf Railway Co., 212 Mo. 692; Levine v. Humphreys, 297 Mo. 555, 249 S.W. 395; Haynes v. Dunston, 104 S.W.2d 1025; 17 C.J.S., sec. 423, pp. 909, 910; Meyer Milling Co. v. Baker, 328 Mo. 1246, 43 S.W.2d 794; Rampton v. Dobson, 3 A.L.R. 569, 315, 136 N.W. 682; Hernandez v. Prieto, 162 S.W.2d 829; Hamelton v. Linn, 200 S.W.2d 69; Milwaukee Mechanics' Ins. Co. v. Shea, 60 C.C.A. 103, 123 F. 9; Knisely v. Leathe, 178 S.W. 453; Farmer v. Littlefield, 195 S.W.2d 657. (4) The instruments of November 1, 1945, undertook to secure payment of the balance due on the purchase price, and, therefore, constituted an equitable mortgage. Phillips v. Jackson, 240 Mo. 310; Leiweke v. Jordan, 59 Mo.App. 619; Carr v. Holbrook, etc., 1 Mo. 240; 41 C.J. 299; 36 Am. Jur. 696; Chance v. Jennings, 159 Mo. 544; Clerk v. Schwab, 40 S.W.2d 635; Publicity Bldg. Realty Corp. v. Thomann, 183 S.W.2d 69; Williamson v. Frazee, 294 Mo. 320, 242 S.W. 958; Mutual Bank & Trust Co. v. Goedecke, 159 S.W.2d 258. (5) Redemption prior to foreclosure of an equitable mortgage cannot be denied on the plea that time is of the essence. 49 Am Jur., sec. 42, p. 57; Buchanan v. Exposition Co., 245 Mo. 337; Jennings v. First Natl. Bank of Kansas City, 30 S.W.2d 1049; United States v. Kanter, 137 F.2d 828; Ward v. Haren, 183 Mo.App. 569; Chicago, B. & Q.R. Co. v. Dockery, 195 F. 221; Sheppard v. Wagner, 240 Mo. 409. (6) There was ample evidence to support the judgment. Wilson v. Drumrite, 21 Mo. 325; Reilly v. Cullen, 159 Mo. 322. (7) The court did not err in holding there was a question of forfeiture involved in this case. Reilly v. Cullen, 159 Mo. 322; Sheppard v. Wagner, 240 Mo. 409; 49 Am. Jur., sec. 42, page 57. (8) The court correctly held that the forfeiture clause in this contract was a penalty. Ward v. Haren, 183 Mo.App. 569; Buchanan v. Exposition Co., 245 Mo. 337; Jennings v. First Natl. Bank of Kansas City, 30 S.W.2d 1049; Mercantile-Commerce Bank & Trust Co. v. Mid-City Realty Co., 156 S.W.2d 730; State ex rel. City of Trenton v. Mo. Public Serv. Comm., 174 S.W.2d 871. (9) The court correctly considered the extent of the damages in determining whether the appellants proposed remedy constituted a penalty. Ward v. Haren, 183 Mo.App. 569; Williamson v. Frazee, 242 S.W. 958. (10) The trial court properly considered the nature of the provisions of the 1935 option in determining the character of the 1945 sale under the option. Clerk v. Schwab, 40 S.W.2d 635, Powell v. Crow, 204 Mo. 481; Mutual Bank & Trust Co. v. Goedecke, 159 S.W.2d 258; Williamson v. Frazee, 242 S.W. 958. (11) Having failed to fulfill his obligations under the contract, appellant could not forfeit respondent's rights because of a technical breach. Farmers & Merchants Bank of Eureka v. Boland, 175 S.W.2d 939; Stewart v. Chittick, 222 S.W. 863; Major v. Hast, 263 S.W. 466; Motor Port, Inc. v. Freeman, 62 S.W.2d 479; Meyer Milling Co. v. Baker, 43 S.W.2d 794; Meyer v. Christopher, 176 Mo. 580, 75 S.W. 750; Long v. Rogers, 185 S.W.2d 863.

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

OPINION

DALTON

Action in ejectment for described real estate in Lebanon, Laclede County, with a cross action, which the trial court construed to be an action in equity to redeem the property from an equitable mortgage. All issues were tried to the court and found for defendant. Plaintiff has appealed.

The petition in ejectment, in usual form, alleged that plaintiff became legally entitled to possession on February 17, 1946. The rental value was alleged to be $ 100 per month, and this was admitted by defendant's answer. Other allegations were denied.

In the cross petition defendant alleged the purchase of the property from plaintiff under the terms of a written contract; that installments had been paid on the purchase price; that neither plaintiff nor defendant had strictly complied with the terms of the contract; that defendant's default was unintentional and due to oversight, inadvertence and mistake; and that plaintiff had undertaken to declare a forfeiture and recover possession of the premises. Defendant prayed judgment denying plaintiff's right to forfeit the contract or to recover possession, and further prayed judgment requiring plaintiff to accept the balance due under the contract and to convey to defendant.

Certain allegations of the cross petition were expressly admitted, to wit, "that on the -- day of , 1935, the plaintiff was the owner and in possession" of the described real estate; that an agreement was entered into between plaintiff and defendant "whereby plaintiff agreed to erect on the...