Rice v. Griffith

• Decision Date: 01 July 1940
• Docket Number: No. 19647.,19647.
• Citation: 144 S.W.2d 837
• Parties: RICE v. GRIFFITH et al.
• Court: Missouri Court of Appeals

144 S.W.2d 837

RICE v. GRIFFITH et al.

No. 19647.

Kansas City Court of Appeals. Missouri.

July 1, 1940.

Rehearing Denied September 16, 1940.

Appeal from Circuit Court, Jackson County; Emory H. Wright, Judge.

Action by Catherine Rice against Mrs. Harry W. Griffith, representative executrix and administratrix of the estate of Harry W. Griffith, deceased, and others on a contract for sale of realty to plaintiff by defendants, who filed an answer praying specific performance of the contract. Judgment for defendants, and plaintiff appeals.

Affirmed.

W. R. Gough and Raymond E. Martin, both of Kansas City, for appellant.

Adams, Adams & Adams, of Kansas City, for respondents.

BLAND, Judge.

This is an action upon a contract, allegedly rescinded, for the sale of real estate to the plaintiff. Defendants filed an answer, in which they prayed specific performance of the contract. A deed to the property was tendered to plaintiff prior to the bringing of the suit. Over the objection of plaintiff, the case was tried as a suit in equity on defendants' answer asking for specific performance. The court decreed that plaintiff take nothing by her suit and that she accept the deed tendered her, etc. Plaintiff has appealed.

The facts show that defendants, Mrs. Mary Griffith, Mrs. Floy Stean, Mrs. Seth White and one Harry Griffith (hereinafter referred to as the owner or owners), being the owners of a tract of land in Clay County, described as Kansas City Suburban Acreage Estates, and being desirous of selling the same, entered into a trust agreement whereby the title to the property was vested in the defendant, Kansas City Title and Trust Company (hereinafter referred to as the Title Company) and, by the terms of the agreement, the Southern Reconstruction Corporation (hereinafter referred to as the seller) was designated as the selling agent, and the National Bank and Trust Company of North Kansas City (hereinafter referred to as the Bank) was designated financial trustee, to whom the buyers were to pay installment payments to be made upon the lots sold in the so-called addition.

In January, 1938, Harry W. Griffith died and the defendant, Mrs. Harry Griffith, was appointed administratrix of his estate.

On June 13, 1934, the seller sold to the plaintiff lots 52 and 53 in Block 9, in the tract of land or addition in controversy. The lots were unimproved. In the contract of sale the relationship of the various parties to the trust agreement and to the land and its sale was referred to. The individuals who conveyed the land to the Title Company being described as the "owner" or "owners". The contract provided that plaintiff should pay the sum of $425 for the lots. $225 was paid upon the signing of the contract, and the remaining $200 was to be paid in monthly installments of $8 each, beginning on the 13th day of September, 1934, and $8 on the 13th day of each and every succeeding month thereafter.

The contract, among other things, provided that the Title Company would convey title to the real estate in question to the plaintiff "upon full performance by said buyer of all of the terms of this contract"; that the deferred payments should be made by the plaintiff to the Bank; that plaintiff should be entitled to a deed upon paying the entire purchase price. The contract further provided that conveyance should be by special warranty deed from the Title Company with the covenant of warranty and that the real estate should be free and clear of all encumbrance except taxes for the year 1934; that all of the taxes were to be paid by the plaintiff except those becoming due and payable in the year 1933. It further provided: "It is agreed by the buyer that when payment of any general or special tax upon or against the real estate herein described, or any part thereof, shall have been in default for a period of thirty days from the date same is due and payable, the seller or the owner or assigns may pay all such taxes so overdue and in default, and the same shall become, be and remain a lien upon the real estate described in this contract and, with interest thereon from date of payment thereof at the rate of eight per cent per annum, shall be repaid by the buyer on demand."

The contract further provided that in the event of default in the payment of the principal or interest for sixty days after it had become due and payable, the seller or owner could declare the contract null and void without notice; that no acceptance by the seller or owner of any payment subsequent to the date on which it should be paid should be construed as a waiver to make prompt payment of any future sum, or as a waiver of any right to insist upon the consequences provided in the contract for failure to make such prompt payment of any such sum. The contract further provided that "time is the essence of this contract."

Plaintiff did not pay the taxes when the same became due and payable and the taxes for the years 1935 and 1936 were paid by Mr. Griffith, one of the owners. In January, 1938, plaintiff's husband, acting for her, paid the 1937 taxes and at the same time left with the collector sufficient money to reimburse Mr. Griffith for the amount paid by the latter covering the 1935 and 1936 taxes. While plaintiff paid all of the installments covering the purchase price of the lots, she did not pay them at the times required by the contract. She finished making her payments on November 4, 1936.

On December 4, 1936, the Title Company, pursuant to a written request by the "owners", conveyed a strip 25 feet in width to the State of Missouri for a state highway over the lots sold to the plaintiff. Plaintiff did not consent to the execution of this deed and, in fact, she did not know of it until January, 1938. On August 25, 1937, Mr. Griffith, one of the owners, wrote plaintiff offering to trade other lots in the addition for plaintiff's lots, but he did not mention the fact that a part of the property, which had been sold to plaintiff, had been conveyed to the State. When plaintiff's husband paid the taxes on January 11, 1938, he went to the house of Mr. Griffith, who was apparently looking after the matter of plaintiff's contract with the seller. Griffith was sick. He talked with Mrs. Griffith about getting a deed for plaintiff and she told him he could get it from the Title Company. He then went to see Mr. Smith of that company and demanded a deed. He told Smith that plaintiff had purchased the lots in question. This was the first time that the Title Company had heard about plaintiff's contract. Smith told him to take the matter up with the Bank, which was apparently done, and he also told him about the conveyance to the State of Missouri, which was the first time that plaintiff or her husband had any knowledge of such conveyance. In a short time the Title Company received from the Bank a written request for a conveyance of the lots to plaintiff. Thereupon, on January 12, 1938, it executed a deed conveying the lots to plaintiff, subject to the conveyance to the State of Missouri, and mailed it to plaintiff.

On January 17, 1938, Mr. H. B. Pyle, an attorney in North Kansas City, acting for the plaintiff, returned said deed with a letter containing the following statement: "Mrs. Rice's contract calls for all of Lots 52 and 53, and her contract was completed in November, 1936. She refuses to accept this deed, and she demands either a deed in compliance with her contract or for such an adjustment as will fully compensate her for the failure to comply with the contract. Trusting that this matter may be straightened out without unnecessary expense of litigation, I am Very truly yours. (Signed) H. B. Pyle."

On January 18, 1938, the Title Company replied that Mr. Griffith had just recently died and that "as soon as practicable" the members of his family would "look into the matter and get in touch with you". Later in the month plaintiff's husband conferred with Mrs. Seth White, who was a sister of Mr. Griffith. At whose instance this conference was held is not shown. However, plaintiff's husband testified that, "we just talked it over, and what we would consider, and she said maybe he (Mr. Griffith) got things mixed up or something like that." Mrs. White said she was very much pleased with the way the witness spoke, etc., "and we would not have any trouble straightening the matter up". The witness further testified: "I was cramped for a little money — if you want to know the truth about it, and we had two other tracts, and we paid in about $300 on the other two, and this tract was paid up in full and she thought — we talked it over, and she thought we might be able to work out an adjustment on those others, and then they could have this other property back; the way we talked it over, it would give me three-fourths more clear, which would make some adjustment on the five lots, and cut it down to $250, and that would give me a chance to go and get the money on the three-fourths."

On March 7, 1938, plaintiff having employed Mr. Raymond E. Martin as her attorney, he wrote a letter to Mr. James S. Simrall, attorney for defendants, as follows: "I would appreciate it if you would give me some word at your very earliest convenience as to what action your client is going to take in this matter. I am withholding action until I can have some definite word on adjustment."

There is no evidence that Simrall made any reply and Martin testified that he had a telephone conversation with him some two weeks or more after writing this letter; that the witness understood that there had been "some statements made between the parties as to some adjustment with respect to other contracts, and that that matter was pending at the time; and I discussed it briefly (with Mr. Simrall) something about this, along the lines of an adjustment or settlement in the way of damages." Mr. Simrall replied that he was quite busy on a number of matters and he hoped to get to this particular matter...