Rimer v. Hubbert
| Decision Date | 14 January 1969 |
| Docket Number | No. 8793,8793 |
| Citation | 439 S.W.2d 5 |
| Parties | Charles A. RIMER and Dorothy Rimer, husband and wife, Plaintiffs-Respondents, v. Floyd HUBBERT, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Claude Arnold, Dexter, for defendant-appellant.
Powell, Ringer & Baker, Dexter, for plaintiffs-respondents.
In this jury-waived action at law for money had and received, plaintiffs Charles A. Rimer and Dorothy Rimer, husband and wife, obtained a judgment for $1,020, including interest in the sum of $20, against defendant Floyd Hubbert, who here appeals.
On April 12, 1967, a written 'Contract for the Sale of Real Estate' (hereinafter referred to as the written contract), which had been prepared by defendant's attorney, was executed by defendant Hubbert as the seller and by both plaintiffs as the buyers. By and in the written contract, defendant agreed to sell to plaintiffs and they agreed to buy from defendant Lot 5 of Block 7 of Chautauqua Park Third Addition in the City of Dexter, Missouri (hereinafter referred to as the lot in Block 7), for the sum of $12,500, of which $1,000 then was paid by plaintiffs to defendant 'as earnest money' and the remainder of $11,500 was to become payable as soon as a dwelling, to be constructed on said lot by defendant 'according to the blueprints hereto attached and made a part of this Agreement,' was 'completed and ready for occupancy.' For reasons not disclosed in evidence, no blueprints were attached to the written contract and no dwelling was constructed or even commenced on the lot in Block 7.
Plaintiff Charles A. Rimer was employed by defendant, a carpenter and contractor who owned several lots in the same addition and was building houses for sale. Several weeks after execution and delivery of the written contract, 'possibly' in May 1967 so plaintiff Charles testified, he and defendant orally agreed that a dwelling would not be built on the lot in Block 7; and, apparently at or about the same time (although the record is not definite as to this), plaintiff Charles talked with defendant about the purchase 'upon completion' of a dwelling then 'under construction . . . near half completion' on Lot 5 in Block 6 of the same addition (hereinafter referred to as the lot in Block 6). 'The price of (that) house was to be $12,750.' Defendant's record explanation of the difference between that figure and the $12,500 specified in the written contract for a dwelling on the lot in Block 7 was that 'he (plaintiff Charles) wanted built-ins in this one' on the lot in Block 6 and that 'he picked out the color of paneling that he wanted for each room.' (All emphasis herein is ours.) Defendant also stated that 'a better grade' of carpet was used in the house on the lot in Block 6, but 'I give him that extra.'
Plaintiff Charles was employed on construction of the house in Block 6 at the time of his conversation with defendant about purchasing it 'upon completion,' and he continued on that job until the house was finished 'probably in the last week of June' 1967. About that same time, plaintiff Charles (accompanied by defendant) went to the Poplar Bluff Loan and Building Association where (in defendant's words 'he signed the application (for a loan of $11,700) and put up the appraisal money' of $15. Following appraisal, the loan was 'approved' but thereafter 'was cancelled' and never closed. Plaintiff Charles said that he was told 'they would not go ahead with the loan . . . because I wasn't working at the time.' As he explained, 'when I first started working for him (defendant) he said that he should have work to keep me working all the time' but, when the house on the lot in Block 6 was completed, 'he said he didn't have any more work for me until he could sell some of his houses he had for sale.'
In response to his counsel's inquiry as to when he 'found out that Mr. Rimer didn't want to accept this house' on the lot in Block 6, defendant said 'probably two weeks' after the loan was approved--'I'd say in the middle of July' 1967. Ensuing inquiries 'as to why he was not taking the property' elicited these answers: 'He told me his wife wouldn't sign the deed (of trust)'--'well, as I said while ago, he just told me his wife wouldn't sign the papers,'
Although title was never conveyed to him, plaintiff Charles subsequently listed the house and lot in Block 6 with a Dexter realtor for sale at $13,500. His attempted explanation that he did so 'after (defendant) said if I could find another buyer--' was interrupted by defendant's counsel and never completed. No sale was effected by the realtor, but on August 29, 1967, defendant himself sold and conveyed that house and lot to purchasers (not named in the record) at a price 'the same as it was to Mr. Rimer,' namely, $12,750. Plaintiff Dorothy Rimer did not testify.
Defendant's theory of the case has been and is that the parties to the written contract, subsequent to the execution thereof but before any work was done on the lot in Block 7, by their oral agreement effected a modification of the written contract; that, upon defendant's full performance of the oral modification, it was removed from the prohibition of the statute of frauds, V.A.M.S. § 432.010 (Deu Friend v. McDermott, Mo.App., 251 S.W.2d 339, 342(6)), and 'the modified contract' was enforceable against plaintiffs; and that 'plaintiffs' failure to accept the building (on the lot in Block 6) and . . . to pay the defendant, as provided under the modified contract, constituted a breach thereof and, therefore, the defendant was entitled to retain the sum of $1,000 so paid down as earnest money for liquidated damages.'
Obviously, the acceptability of defendant's theory depends, in the first instance, on the validity vel non of the premise that there was an effective oral agreement modifying the written contract. As pointed out in plaintiffs' brief, the assent of...
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