Shortridge v. Ghio

• Decision Date: 03 November 1952
• Docket Number: No. 21734,21734
• Citation: 253 S.W.2d 838
• Parties: SHORTRIDGE v. GHIO.
• Court: Missouri Court of Appeals

Page 838

253 S.W.2d 838

SHORTRIDGE v. GHIO.

No. 21734.

Kansas City Court of Appeals, Missouri.

Nov. 3, 1952.

Frank W. Hayes, Sedalia, for appellant.

A. L. Shortridge, Joplin, for respondent.

BOUR, Commissioner.

Plaintiff-respondent brought this action in equity for specific performance of an alleged contract for the purchase of certain real estate in Sedalia, Missouri. The petition alleges plaintiff's ownership of the property in question; the signing of a written contract by defendant and by plaintiff's duly authorized agent, Donnohue Loan & Investment Company, on March 19, 1951, for the sale of said property by plaintiff and the purchase thereof by defendant, and alleges a payment of $200 by defendant to said agent as a deposit and as a part payment of the agreed purchase price, to be so applied when the deed should be executed and delivered. The petition further states that plaintiff has always been ready and willing to perform her part of the contract upon payment of the balance of the purchase price and to convey the property by good and proper warranty deed, and to deliver to defendant possession of the premises; that plaintiff's agent, on March 30, 1951, duly tendered to defendant such deed and an abstract showing good title; that defendant has refused to accept same and to pay the balance of the purchase price in the amount of $17,300; that plaintiff has no adequate remedy at law. The prayer asked for judgment and decree ordering defendant to accept the deed and to pay plaintiff $17,300, with interest from date of said tender until paid, and that such judgment be declared a lien on the real estate described, and for costs.

A copy of the real estate contract referred to in the petition was attached as an exhibit and reads as follows:

'Real Estate Contract

'This Contract, Made and entered into this 19th day of March 1951 by and between Mrs. Martha G. M. Shortridge, party of the first part, and John B. Ghio, party of the second part.

'Witnesseth, That the party of the first part agrees to sell and the party of the second part agrees to buy the following described real estate, situate in the County of Pettis State of Missouri, to-wit:

'Property known as and numbered 720 Broadway, Sedalia, Missouri, at and for the sum of Seventeen Thousand Five Hundred & No/100 Dollars to be paid as follows: Two Hundred And No/100 Dollars the receipt of which is hereby acknowledged, and the balance is to be paid as follows:

'Seventeen Thousand Three Hundred And No/100 Dollars on delivery of Warranty Deed and Merchantible Abstract of title.

'Donnohue Loan and Investment Company shall act as escrow agent for the mutual benefit of both parties hereto.

'Party of the first part agrees to furnish an abstract from the Government, continued to date.

'It is hereby provided that upon completion of the terms as outlined herein, party of the first part will deliver or cause to be delivered to the party of the second part, his heirs or assigns, a good and sufficient Warranty Deed to the above described property.

'Possession on the signing of this contract.

'Taxes for 1950 and prior years to be paid by first party.

'If the party of the second part should fail to consummate this contract, the party of the first part may, at her option, declare this contract at an end, and retain the sum already paid as liquidated damages. But if the title to said property should, upon examination, prove not good, and cannot be made good, within a reasonable time, then the sum of Two Hundred Dollars shall be refunded to the party of the second part or his legal representatives and neither party will be liable to the other whatsoever.

'In Witness Whereof, This said parties hereto have signed in triplicate the day and year first above written.

'S/s John B. Ghio (SEAL)

'Donnohue Loan & Investment Co.

Agent for Martha G. M. Shortridge

By: S/s W. H. Bunn (SEAL)

V. Pres.

'________ (SEAL)

________ (SEAL)'

Defendant, in his amended answer, denied plaintiff's ownership of the property in question for want of information respecting the title; admitted that on March 19, 1951, he signed 'a form of purchase contract covering the premises' in Sedalia, and that he deposited with plaintiff's agent, Donnohue Loan & Investment Company, the sum of $200 to be applied on the purchase price specified in said form of contract if such contract became a binding and enforceable agreement through execution by plaintiff. Further answering, he alleged that the contract form signed by him was a mere offer to purchase the property on the terms therein specified, and that it was executed by him with the understanding that it would be submitted to plaintiff by her agent for her acceptance or rejection; that such offer as made contemplated that plaintiff, if she desired to accept, should do so by signing said instrument and by no other method; that before the contract form was executed by plaintiff or anyone in her behalf, defendant withdrew his offer by notifying plaintiff's said agent that the offer was withdrawn; that if said form of contract bore the signature of Donnohue Loan & Investment Company as agent for plaintiff, such signature was affixed after notice of such withdrawal and termination of the offer; and if affixed prior to such notification the same was done by said agent without authority of plaintiff and is not binding upon defendant under the Statute of Frauds, Section 432.010 RSMo 1949, V.A.M.S. Defendant denied every allegation in the petition not expressly admitted. The answer also contained a counterclaim for the $200 deposited with plaintiff's agent. Defendant alleged in his counterclaim that his said offer to purchase the property 'contemplated acceptance through the execution of the contract embodying same by plaintiff or on her behalf by her duly authorized agent'; that 'while the agreement embodying said offer' remained unaccepted, defendant withdrew his offer and demanded return of his deposit, for which he asked judgment.

The reply averred 'that plaintiff by her duly authorized agent, Donnohue Loan and Investment Company, and defendant entered into a valid written contract for valuable consideration as alleged in plaintiff's petition,' and denied 'that defendant withdrew or had the legal right to withdraw from said completed contract.'

Before trial the parties stipulated that, pending this action, the property in question might be sold by plaintiff for not less than $15,000 and in such event the suit should thereafter be one for a money judgment for the difference between the sale price and the price ($17,500) specified in the alleged contract. It was agreed that neither such stipulation nor any action of either party thereunder should otherwise affect or prejudice the rights of the parties thereto, nor the status of the suit as one in equity. The stipulation was brought to the attention of the court at the close of the evidence, and it was further stipulated that plaintiff, acting under the pre-trial stipulation, had sold the property to third parties on June 15, 1951, and before trial, for $15,000.

The court found that under the preponderance of the evidence the contract was signed on plaintiff's behalf by the Donnohue Loan & Investment Company before that company had notice of defendant's refusal to proceed with the purchase of the property; that after such refusal plaintiff tendered a proper deed and abstract to defendant; and that an oral authorization of a broker to sell real estate, though void under the Statute of Frauds, may be ratified by the owner. The decree recited that the court found the issues in plaintiff's favor on her petition and her damages were assessed at $2300, the difference between the unpaid balance of the contract purchase price and the amount for which said property was sold under the pre-trial stipulation, with interest in the amount of $253.68. The court also found in plaintiff's favor on defendant's counterclaim. Defendant has appealed.

It is the duty of this court to review the case upon both the law and the evidence and reach its own conclusions. The judgment will not be set aside unless it is clearly erroneous, and due regard will be given to the opportunity of the trial court to judge of the credibility of the witnesses. Section 510.310, RSMo 1949, V.A.M.S.

According to plaintiff's evidence the plaintiff, then residing in California, had listed for sale with the Donnohue Loan & Investment Company of Sedalia as agent, her residence property in that city at a price of $20,000. Among her letters to the agent nothing appears that authorized the agent to sign her name, or to sign its name in her behalf on any contract for a sale. Defendant appeared at the office of the above agency the morning of March 19, 1951, and inquired of its salesman, E. C. Martin, regarding the property in question. The salesman then took defendant through the house and thereafter defendant again appeared at the office on the same day and said: 'Here is a check. Fill it out for $200 and make the contract.' Accordingly the check was so made, executed, and delivered to the agent by defendant and the contract was typed in triplicate in words and figures as shown in the exhibit heretofore set out. in her behalf, defendant withdrew his offer only by the defendant buyer and the three instruments were left in the possession of E. C. Martin. The salesman then telephoned plaintiff's son, an attorney at Joplin, Missouri, and told him of the transaction. The son stated he would call his mother in California, and on the next day, March 21, 1951, he called the salesman and reported his mother's acceptance. Thereupon the salesman prepared a deed for plaintiff's signature with the name of the grantee in blank, and mailed it to plaintiff in California. On March 21st or 22nd, the agent talked with defendant by telephone. He testified:

'Q. Did you have any telephone conversation with Mr. Ghio between the 19th and 23d? A. Yes, sir.

'Q. What was the nature...