Shelton v. Julian

• Decision Date: 10 December 1980
• Docket Number: No. 11738,11738
• Citation: 610 S.W.2d 129
• Parties: Ralph SHELTON and Georgia Lou Shelton, Plaintiffs-Respondents, v. Mae JULIAN and Dallas Julian, Jr., Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 129

610 S.W.2d 129

Ralph SHELTON and Georgia Lou Shelton, Plaintiffs-Respondents, v. Mae JULIAN and Dallas Julian, Jr., Defendants-Appellants.

No. 11738.

Missouri Court of Appeals, Southern District, Division Three.

Dec. 10, 1980.

Robert H. Jones, Kennett, C. W. Knauts, Piggott, Ark., for defendants-appellants.

W. Robert Cope, Summers, Cope & Walsh, Poplar Bluff, for plaintiffs-respondents.

PER CURIAM.

This is an action for specific performance of a contract for the purchase of an improved tract of land in Butler County. Plaintiffs Ralph D. Shelton, Jr. and Georgia Lou Shelton, husband and wife, are the buyers and defendant Mae Julian is the seller. The other defendant is Dallas Julian, Jr., Mae's son. ¹

The contract was entered into in March 1971. The purchase price was $100,000, interest free, to be paid in monthly installments of $1,000 commencing April 1, 1971. The trial court, sitting without a jury, found in favor of plaintiffs and entered its decree vesting title in plaintiffs. The trial court found that the balance due to Mae under the contract was $17,000 and the plaintiffs deposited that amount in the registry of the court prior to the entry of the decree. The judgment recited that Mae was entitled to the $17,000 and that she, prior to the suit, refused a tender of that amount, and a tender of a monthly installment, by plaintiffs. Defendants appeal.

Defendants contend that the trial court erred in granting plaintiffs the relief of specific performance for the following reasons: (1) The petition alleged that the balance due Mae under the contract was $26,000 but plaintiffs were given relief upon payment of only $17,000; (2) Plaintiffs did not perform their duties under the contract in three respects; (3) Receipts offered into evidence by plaintiffs had been materially altered and should not have been considered.

On this appeal defendants are represented by counsel who did not represent them in the trial court. At the pleading and discovery stages in the trial court defendants were represented by other counsel. At the trial itself defendants, who are not lawyers, elected to appear without counsel.

Although a defendant has the right to try his own case he "is bound by the same rules of procedure as those admitted to practice law and is entitled to no indulgence he would not have received if represented by counsel." Commerce Bank of Kansas City v. Conrad, 560 S.W.2d 388, 390(2) (Mo.App.1977). The record is replete with voluntary unsworn statements, expressions of outrage, and other departures from regular procedure, all of which, in spite of the capable efforts of the distinguished trial judge, detract from the orderliness of the record.

Defendants' first point is that the trial court erred in decreeing specific performance upon the payment by plaintiffs of $17,000, in addition to the payments previously made, for the reason that the petition alleged that the balance due to Mae under the contract was $26,000. The petition, filed in September 1976, alleged that Mae had refused the tender of the July 1976 payment and all subsequent payments, that plaintiffs had paid $74,000 toward the purchase price, and that the balance due Mae was $26,000. Defendants' answer denied all of those allegations.

"While a receipt is prima facie evidence of payment, ... the production of receipts is not the only method of making proof of payment. Payment may be proved by circumstantial as well as by direct evidence...." Link v. Link, 262 S.W.2d 318, 321(6) (Mo.App.1953). Testimony of the defendant, in an action on account, that he paid the account is sufficient "to carry that issue to the jury." Dorroh v. Wall, 297 S.W. 705, 706(4) (Mo.App.1927). To similar effect see 60 Am.Jur.2d Payment § 147, p. 715; 70 C.J.S. Payment § 112, p. 326.

Plaintiff Ralph Shelton testified that he commenced making the $1,000 monthly payments to Mae in April 1971. The payments were made in cash "because that is the way Mae wanted it." That mode of payment was utilized until October 1974. If the payment schedule of the contract had been strictly followed, the October 1974 payment would have been the 43rd payment. Shelton testified that during that period he obtained receipts, signed by Mae, reflecting payments totaling $38,000 but Shelton also testified that some payments were made which were not evidenced by a receipt.

Included in the sale contract were three trailers. Shelton sold the trailers and paid the proceeds to Mae as advance payments under the contract. A receipt, signed by Mae in June 1972, acknowledged a payment of $10,000 which included the proceeds ($6,000) of the sale of the trailers. In the receipt Mae said, "six of these payments was to be on end of contract."

It was Shelton's testimony that he had made all of the payments required by the contract and "I paid ahead a lot of times too." Plaintiffs introduced evidence through Shelton, and through witness Keene, to the effect that in October 1974 Mae stated that the balance still due under the contract was $49,500. Plaintiffs' evidence showed that, thereafter, Mae was paid $16,000 by check and $16,500 in cash evidenced by receipts signed by Mae. Plaintiffs' evidence also showed that in July 1976 Mae refused to accept tender of the payment due that month, and subsequent tenders. According to plaintiffs' evidence $83,000 had been paid to Mae and Shelton testified that "$17,000 would bring the balance down to zero."

During the introduction of the foregoing evidence defendants made no objection based upon the inconsistency between the allegations of the petition and plaintiffs' evidence with regard to the sum of the payments made to Mae. Defendants' failure to object to that evidence constituted implied consent to the trial of that issue. East v. Landmark Central Bank & Trust Co., 585 S.W.2d 222, 226(9) (Mo.App.1979). The issue, having been tried by the consent of the parties, is treated in all respects as if it had been raised in the pleadings. Rule 55.33(b). ² That rule also provides that the failure to amend the pleadings to cause them to conform to the evidence does not affect the result of the trial of the issue.

Plaintiff had no receipts for two monthly payments in 1971. The receipt signed by Mae in June 1972 is strong evidence that payments were made in the months for which receipts were missing. In a letter written by Mae to Shelton, sometime after October 1974, Mae asked Shelton if he could give her payments "ahead of time." The friendly tone of that letter, coupled with that request, makes it doubtful that Shelton was then in default although, by that time, there were no receipts with respect to at least five months. When Mae gave her deposition in August 1977 she testified in reference to Shelton, "I can't say that he cheated me and I can't say that he didn't. I did not take down just how much he paid me."

A meticulous examination by this court of the transcript and the voluminous exhibits, including defense exhibits, shows that the trial court's finding that the balance due Mae was $17,000 is supported by the record. Defendants' first point has no merit.

Defendants' second point is that the trial court erred in granting plaintiffs relief because plaintiffs did not perform their duties under the contract in the following respects: (a) Plaintiffs failed to pay the real estate taxes; (b) Plaintiffs failed to insure the buildings on the land against fire, lightning, and tornadoes; (c) Plaintiffs assigned their interest in the contract without the written consent of Mae.

As permitted by Rule 55.16 the petition alleged generally that all conditions precedent had been performed by plaintiffs. Defendants' answer, in compliance with Rule 55.16, pleaded specifically the three grounds of non-performance upon which defendants' second point is based. Plaintiffs' reply denied the allegations of the answer.

Defendants' answer, which was filed in December 1976, alleged that plaintiffs had failed to pay the real estate taxes. One of plaintiffs' exhibits was an abstract of title to the land. The abstract contains the certificate of the...