Roberts v. Clevenger

• Decision Date: 09 January 1950
• Docket Number: No. 1,No. 41231,41231,1
• Parties: ROBERTS v. CLEVENGER
• Court: Missouri Supreme Court

Page 728

225 S.W.2d 728

ROBERTS v. CLEVENGER.

No. 41231.

Supreme Court of Missouri, Division No. 1.

Jan. 9, 1950.

Walter A. Raymond, Kansas City, attorney for appellant.

Frank J. O'Leary, Kansas City, attorney for respondent.

VAN OSDOL, Commissioner.

Action for specific performance of an alleged oral contract to sell and convey real estate, a described lot and house thereon situate at 5438 East Twenty-seventh Street Terrace in Kansas City. The trial chancellor found plaintiff entitled to a decree of specific performance and entered a decree divesting defendant of title to the described lot and vesting title in plaintiff. Defendant has appealed.

Defendant-appellant contends plaintiff failed in proving the elements of her case by proof of the quality and quantity essential to authorize the relief of specific performance of an oral contract to sell and convey real property. Defendant-appellant urges the decree in plaintiff's favor should be reversed and a decree entered for defendant.

Plaintiff had alleged that, on or about July 1, 1939, defendant, Lola M. Clevenger (then Lola M. Cashner), was the owner of the described lot and residence thereon in Kansas City; that plaintiff, Hattie Roberts, was the owner of a described lot, a half acre, in Jackson County; and that on or about July 1, 1939, defendant orally agreed to sell and plaintiff agreed to buy the Kansas City property for $1200, payable by a credit of $300 for plaintiff's Jackson County lot, and the balance of the purchase price, $900, to be paid at the rate of $15 per month for ten months of the year, without interest, until the purchase price was paid, at which time the parties were to exchange conveyances of the respective properties pursuant to the alleged agreement. It was further alleged that, until the purchase price was fully paid, the plaintiff should pay the taxes on the Kansas City property and defendant on the lot in Jackson County. Plaintiff further alleged her entry into possession of the Kansas City property; her payment of taxes thereon; the making of substantial and permanent improvements; the (over) payment of the purchase prive allegedly agreed upon; her compliance in all respects with the terms and provisions of the stated agreement; her demand (and refusal by defendant) for a deed conveying the Kansas City property to plaintiff; her offer and renewed offer to convey the Jackson County lot to defendant; and the inadequacy of any legal remedy.

Defendant by answer raised the general issue, and set forth affirmatively the Statute of Frauds, Section 3354, R.S.1939, Mo.R.S.A. Sec. 3354.

The nature of the case requires our careful review of the whole of the evidence introduced.

In actions of an equitable nature we review the whole record, determine the weight and value of the evidence and reach our own conclusions as to the facts, giving due deference to the findings of the chancellor, who personally saw the witnesses and heard them testify.

The Statute of Frauds is an insuperable barrier to enforcement of specific performance of an oral contract to sell and convey land, unless the proof of such contract is so clear, cogent and convincing as to leave no reasonable doubt in the mind of the chancellor as to its terms and conditions; and where part performance is relied on to take the case out of the operation of the Statute there must be like proof that the acts refer to that contract and would not have been done unless on account of and pursuant to that very agreement and with a direct view of its performance. The taking of and continuance in possession by a vendee under a parol contract made by a vendor, with his consent, the payment of a substantial part or all of the purchase price, and the making of valuable improvements are acts of part performance, when referable solely and unequivocally to the parol contract. Scheerer v. Sheerer, 287 Mo. 92, 229 S.W. 192; 101 A.L.R. 997-1001 and 1056-1059. But the requirement of referability of the acts to the alleged contract is not so onerous on a plaintiff as to defeat his action merely because there is a conflict of evidence regarding that to which his acts referred. Sportsman v. Halstead, 347 Mo. 286, 147 S.W.2d 447; 49 Am.Jur., Statute of Frauds, Sec. 428, p. 734, at page 736.

Defendant Lola M. Clevenger and plaintiff Hattie Roberts are aunt and niece. In 1921 plaintiff, an orphan seventeen years old, came to defendant's home in Kansas City and lived in the aunt's home until 1933. They lived in the property herein involved. Plaintiff worked and 'paid my room rent.'

In 1933 defendant and her husband (Cashner, now deceased) moved to a farm near Green Ridge. A few weeks later plaintiff went out to the farm and made her home with defendant and defendant's husband. Meanwhile the Kansas City property was rented by defendant to the Cayou family.

Plaintiff worked on the farm, and used some of her own money (about $1000) in buying livestock for the farm. She was to share the net of the farm production with the Cashners '50-50.' But times were hard and 'there was a drought on' and plaintiff received no money--only a living--she never got back any of the money she had invested in livestock; so in 1937 she went back to Kansas City and became a telephone operator at the Muehlebach Hotel and, in 1939, was receiving $60 per month of which she paid $5 per week rent for a kitchenette.

In June 1939 defendant wrote one or more letters to plaintiff. Thereafter, in early July of that year, plaintiff moved into the Kansas City property and paid $15 per month (ten months of each year) until March 1947, the total amount of these payments being $1170. Although plaintiff had not, before 1939, paid taxes or insured the Kansas City property, she thereafter paid taxes and insured the Kansas City property (in her own name), and she no longer paid taxes on the Jackson County lot. Plaintiff further expended amounts from time to time aggregating about $190 in decorating and in making minor repairs on the Kansas City property; and additionally in the summer of 1946 had a new roof put on the house, expending $200.

(After the death of defendant's second husband, Clevenger, in April 1946, plaintiff invited defendant to live with plaintiff in the Kansas City property. Defendant accepted the invitation.)

As we have seen supra, plaintiff overpaid defendant $270 in cash (assuming the relation between them was that of vendor and purchaser, as alleged by plaintiff). Plaintiff, in explaining the overpayment, testified that she was all the while relying upon defendant's promise and urging defendant to make a statement of the balance due.

Plaintiff further testified that in 1946 she had asked defendant 'how much balance I owed her; she thought a bit and she said '$175.00' * * *. Continued on up to February (1947), and I offered her a payment, and I said 'Auntie, here is your payment.' * * * She says 'Hattie, I think you got me paid up.' She said 'I will get the book up, figure it up some of these days.' I said 'I wish you would, so we can get in straightened up.' * * * In March, 1947, I offered my payment. She said, 'You keep that, Hattie. You have got me paid up.' She said 'I will not accept it, unless you want to pay your rent.' I said 'Rent?' She said 'Yes, I just as well tell you now that you have been paying rent all the time.' I said 'I am not going to take it that way.'' A question was asked defendant in a deposition three weeks before trial (June 29, 1948), 'Didn't you tell her that you thought she was paid up?' Defendant answered, 'In February (1947) she offered me the money and I told her it was time she understood things right.' Thus the positions of the parties may be observed. The plaintiff claims she had contracted to buy the Kansas City property, but defendant takes the position the relation was that of landlord and tenant.

We have seen there was a change in the occupancy of the Kansas City property in early July, 1939. The tenants had been notified to move and plaintiff, on or about July 1st, admittedly with defendant's consent, entered into possession and lived in the property. Plaintiff paid taxes, contracted insurance and made repairs--one item, rebuilding the roof, was of substantial character. Defendant had not therefore insured the property. Plaintiff paid defendant sums of money in total amount $1170. And we have noticed plaintiff, thereafter, has not and defendant has paid the taxes on the Jackson County property. These circumstances must have been the result of some contractual relation between the parties, plaintiff and defendant. If the entry into possession, payment of the monies (as purchase money) and the making of substantial and valuable improvements or repairs were with the knowledge and consent of defendant and were in reliance upon and in direct compliance with and referable to a definite verbal contract of sale, it would be inequitable to plaintiff should the relief of specific performance be refused because of the Statute of Frauds (unless the evidence discloses some other and unconscionable or inequitable circumstance prompting the withholding of equitable relief). To refuse the relief would make the Statute a means of practicing a fraud upon plaintiff.

Bearing upon the question of whether the stated acts of plaintiff were referable to a verbal contract of sale or rental, we have noted two exhibits, receipts--one (Plaintiff's Exhibit One), dated July 1, 1939, 'Received of Hattie $15 for payment on house at 5438 E. 27th St. Terr. Kans City Mo. by Mrs. Lola Cashner'; the other (Plaintiff's Exhibit Two), 'July 3d Hattie paid 11th payment on house $15, by L. M. C.' The $15 paid on that date, July 3, 1940, was, as in the receipt stated, the eleventh payment of $15. Defendant equivocated but finally admitted these two receipts were written and signed or initialed by her, but she explained the uses of the word 'payment' in the two receipts were mistakes and that 'rent' was intended....