Place v. Parker

• Decision Date: 03 April 1944
• Docket Number: No. 20386.,20386.
• Citation: 180 S.W.2d 538
• Parties: PLACE v. PARKER.
• Court: Missouri Court of Appeals

180 S.W.2d 538

PLACE v. PARKER.

No. 20386.

Kansas City Court of Appeals. Missouri.

April 3, 1944.

Appeal from Circuit Court, Jackson County; John R. James, Judge.

Suit in equity on a note by C. F. Place against Arthur L. Parker, in which defendant's answer asserted that note had been paid by a subsequent contract between the parties unperformed and in which both parties prayed for equitable relief. Decree for defendant, and plaintiff appeals.

Reversed.

Eugene C. Kane, of Kansas City, for appellant.

A. B. Taylor, of Independence, for respondent.

BLAND, Judge.

This is a suit on a promissory note in the sum of $775. Defendant filed an answer, admitting the debt, asserting that it had been paid by a subsequent contract with plaintiff, unperformed, and praying that the court give defendant certain equitable relief.

Plaintiff filed a reply, also asking equitable relief. The case was tried as one in equity, resulting in a decree in favor of the defendant. Plaintiff has appealed.

The weight of the evidence shows that defendant and his wife were the owners, by the entirety, of a 20 acre farm located near the City of Independence; that defendant was engaged in collecting garbage in that city, which he fed to hogs on the farm. The farm was of doubtful value for farming purposes, but apparently was adapted to the use of feeding hogs.

Defendant had been acquainted with plaintiff's father with whom he had had some business dealings. After the death of his father plaintiff told defendant that he desired to go into partnership with the latter, in the feeding of hogs. Defendant declined to form a partnership with plaintiff, but informed him that he would borrow the money to buy some hogs and pay plaintiff 8% interest on the money. The price for the hogs was $775, which plaintiff advanced to the defendant, and defendant gave plaintiff the note in suit in that sum, bearing interest at the rate of 8% per annum. The note was secured by a chattel mortgage on the hogs. When the note became due defendant tendered plaintiff the principal and interest due upon it. Plaintiff said that he did not need the money at that time. Later, defendant again tendered the money due on the note, but plaintiff said that he would buy defendant out and let the money go upon the payment for the place. Plaintiff stated that he had an uncle who would help him out on the purchase of defendant's place. About the 13th day of August, 1942, the parties tentatively agreed upon a price of $6000 for defendant's farm, his two trucks and the equipment he had to haul the garbage. However, out of the $6000, defendant was to pay off a mortgage on the farm amounting to $900. The contract was drawn up but never signed by the parties, as plaintiff's uncle would not help him. The parties then changed the proposition so that plaintiff would assume the $900 mortgage on the farm and pay defendant $5000. The parties went to the office of Mr. Siegfried, in Independence, who was engaged in the real estate business. He drew up a writing which covered a part of the agreement. The writing reads as follows:

"Sale Contract

"Made and entered into this 17th day of August, 1942, By and Between Arthur L. Parker and Viola Parker, his wife, the sellers; and Cuvella F. Place and Mary May Place, his wife, the buyers.

"Witnesseth: That the sellers have sold and agree to convey as herein provided the following described real estate and personal property in Jackson County, Missouri, to wit: (Here follows a description of the farm in question.)

"One (1) International 1 Ton Truck, M #Hd-213A12749 Pick Up.

"One (1) Ford V-Eight, 1½ Ton Truck, M #98099.

"One (1) Steam Boiler located on the real estate above described.

"For the price and sum of Five Thousand Nine Hundred And no/100 Dollars ($5900.00) to be paid for by the buyers in the following manner, to wit:

"1. Buyers to pay the sellers Fifteen Hundred and no/100 Dollars ($1500.00) cash on signing contract.

"2. Buyers agree to cancel a note for Seven Hundred Seventy-five and no/100 Dollars ($775) plus all accrued interest from April, 1941, at eight per cent, making a total of $855.00 for which the sellers are to credit the purchase price.

"3. Buyers assume and agree to pay an outstanding mortgage against the real estate described in the sum of Nine Hundred and no/100 Dollars ($900.00) which is a part of the purchase price above named.

"4. Buyers to execute their promissory note to the sellers for the remaining balance of $2645.00 bearing six percent interest from date, said note to be paid at the rate of Two Hundred Twenty and no/100 Dollars ($250.00) per month including interest.

"Purchasers are to accept assignment of insurance and bonds now in force and to pay the sellers for the unearned premium thereon".

The agreement was signed by the parties hereto but it was not signed by either of their wives.

It will be noted that the written agreement provided that the payment should be $250 per month. This was later changed, orally, to $220 per month, and it was, also, orally agreed that the first payment was to be made on the first day of November, 1942. At the same time that said contract of sale was entered into, on August 17, 1942, it was orally agreed that plaintiff would purchase 12 hogs belonging to the defendant for $500; $250 of the purchase price thereof to be paid at the same time as the $1500 down payment on the farm and the equipment was to be made. The balance of $250 was to be evidenced by a note, which was to be secured by a chattel mortgage on the hogs, due October 1st, 1942. The note and chattel mortgage on the hogs were executed at this time and left with Mr. Seigfried, pending the performance of the contract.

Plaintiff testified that it was understood that the defendant was to deliver to him "the necessary itemized articles herein including the land", when he paid the defendant the $1500 in cash.

At the time that the contract and the note and chattel mortgage for the hogs, were signed, defendant assigned the certificates of title to the trucks to plaintiff and delivered the certificates to him. Plaintiff said that he wanted to write the check for the $1500 on a blank form from his own check book, which was at his home. So the parties hereto went to his home, where plaintiff procured his check book from his wife, whereupon, plaintiff told defendant that he could not pay $1750, but could give him half of it, or $875, and that he would pay the remainder in a day or two. Defendant agreed to this and plaintiff gave him a check for $875, which the former cashed.

The agreement was not strictly followed in respect to the delivery of the trucks, because the evidence shows that defendant not only turned over the certificates of title to plaintiff at the time the contract was signed, but delivered to him the trucks, either at that time, or at the time defendant received the check for $875; thus waiving the condition that the trucks were to be delivered when plaintiff paid the initial cash payment.

Plaintiff immediately started making collections of garbage in the City of Independence, retaining defendant's drivers as his employees, but defendant went with him to show him the route until the Saturday evening following the signing of the contract, at which time, he told defendant that he was through; that he had "bit off a bigger bite than he could chew". At that time defendant asked plaintiff about the $875 that was to be paid him, and requested him to go ahead with the contract. Plaintiff refused. Plaintiff testified that "we both agreed to call it off", but defendant denied this and stated that he insisted that plaintiff "complete" the contract. (The word "complete" is used in various places in the pleadings and the testimony but, at all times, it is used in the sense of performance of the contract rather than its execution.) Notwithstanding plaintiff's testimony that the parties agreed "to call it off", at another time, he testified that defendant asked him to go ahead with the contract and, in his reply, he alleges that he tendered the two trucks and demanded the return of the $875, which he had paid, "which tender this defendant refused". Plaintiff's evidence further shows that, at all times, after he gave defendant his check for $875, he considered the trucks as his property. Undoubtedly, there was no mutual rescission of the contract.

Plaintiff testified that the reason he "called the deal off" was because his wife refused to sign the contract because he "was not getting value received".

It will be noted, from the written part of the contract, that it was contemplated that the wives of both parties should sign it; but it was admitted at the trial, by counsel for the parties (which theory was expressly adopted by the court), that the parties hereto decided to go ahead with the agreement choosing "not to bring their women in to sign it", and that, thereafter, any difficulty that arose, or might arise, by reason of their not signing it was the "hard luck" of the parties hereto.

When plaintiff "threw up the deal" defendant continued to make the garbage collections under his contract with the City until September 8th, when one Terhune was the successful bidder for the contract with the City. Later, Terhune discontinued collections and a new contract was let to plaintiff by the City. On October 15, 1942, plaintiff took over the collection of the garbage under his contract with the City. At this time, defendant again urged plaintiff to go through with the "deal". Plaintiff said that it would be better for him to go through with the deal than to lose what he had in it, but that he could not pay defendant the $875. They finally agreed that plaintiff should pay to defendant $500 on the contract and that $375 be added to the note for $2645 provided for in the written part of the contract. Plaintiff gave defendant his check for $500. Plaintiff testified that the $500 was for the hogs, but the weight of the...