Shupe v. A. J. King Realty Co.
| Decision Date | 16 June 1930 |
| Docket Number | No. 16942.,16942. |
| Citation | 29 S.W.2d 230 |
| Parties | SHUPE et ux. v. A. J. KING REALTY CO. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Jackson County; Clarence A. Burney, Judge.
"Not to be officially published."
Action by L. H. Shupe and wife against the A. J. King Realty Company. From a judgment for defendant, plaintiffs appeal.
Affirmed.
Stubenrauch & Hartz, of Kansas City, for appellants.
Morrison, Nugent, Wylder & Berger, of Kansas City, for respondent.
Action to recover money paid upon a contract for the purchase of real estate.
Plaintiffs allege that defendant, on June 11, 1927, pretended to contract and agree to sell and convey to plaintiffs what purported to be a tract of ground described in said contract as follows:
"A tract of ground in the Northeast Quarter of the Southwest Quarter of Section 27, Township 48, Range 33, to be known and designated as Lots 4, 11, 12, 13, 19, 20, and 21, on the proposed plat of Red Bud Park, in Jackson County, Missouri."
It is further alleged that plaintiffs were to pay defendant the sum of $4,000, and had paid on account the sum of $400; that there never was any valid, legal, and binding contract between the plaintiffs and defendant for the purchase and sale of any specific real estate; that the description of the real estate pretended to be sold to plaintiffs by defendant is indefinite and void; that at the time there was no plat of any survey of any portion of land known as Red Bud Park acknowledged and recorded as required by law; that there was no real estate described in said pretended contract, and that same was absolutely void and of no force and effect; that the payments made by plaintiffs were wholly without consideration and that plaintiffs are entitled to have same repaid to them; that plaintiffs demanded repayment November 22, 1927, which demand was refused.
The petition further alleges that on the date of the contract, defendant exhibited to plaintiffs a certain plat, representing and pretending to plaintiffs that same was a plat of a survey of a portion of the quarter section of land referred to, which tract was to be known as Red Bud Park, and that said plat would be legally acknowledged and filed for record; that notwithstanding said representations and pretensions, defendant thereafter filed in the recorder's office of Jackson county, Mo., a plat of a different survey of said quarter section than that shown to plaintiffs; and that defendant never acknowledged and filed the plat which had been exhibited to the plaintiffs; that after the filing of the new and different plat, plaintiffs notified defendant that they did not care to purchase any lands as shown on the new recorded plat of Red Bud Park and demanded the return of their money. The plaintiffs prayed judgment for the sum paid with interest from the date of demand.
The answer was a general denial.
A jury was waived, and the case tried and determined without any special findings of fact and conclusions of law stated separately. The judgment of the court found the issues for defendant and ordered and adjudged that plaintiffs take nothing. From this judgment plaintiffs duly appealed.
The pertinent facts disclosed by the record may be summarized as follows: Plaintiffs are husband and wife. On the 11th day of June, 1927, they and defendant signed a contract by the terms of which defendant agreed to sell, and plaintiffs agreed to buy, certain real estate, describing it in the same manner as described in the petition. It also provided that the lots were to be conveyed subject to restrictions, setting them forth in detail; and provided for a total purchase price of $4,000 to be paid in the following manner; $50 cash and $300 by a personal note at the signing of the contract, receipt of which was acknowledged. The note was payable in installments of $100 July 1, $100 August 1, and $100 September 1, 1927, and was to be paid in full before delivery of deed; $2,000 was to be secured by first deed of trust on the property described, due in five years, and $1,650 to be secured by second deed of trust on the same property, payable in installments. Provision is made for plaintiffs to be furnished with a complete abstract of title, time for examination of same, and time to cure any defects; and it is provided that if the title be good, the seller shall deliver a warranty deed conveying said property free and clear from all liens except as provided in the contract. There is no complaint in reference to the violation of any of these conditions, nor of any other provisions in the contract except as above stated.
The proposed plat of Red Bud Park was furnished and delivered to the purchasers prior to the execution of the contract. It was introduced in evidence by plaintiffs and shows all of the lots mentioned in the description with the boundary and dimensions of each, as well as adjacent and neighborhood streets and roads. The north boundary of the tract is designated as Ninety-First street or Bannister road, which is shown to be 20 feet in width; lot 12 is the only one that touches the north boundary; lot 4 fronts east on Grandview road; Oak Wood drive extends along the south side of lot 4 westwardly across the front of lots 11 and 13, and thence west in a circle to the northwest by lots 19, 20, and 21. This drive is shown to be 50 feet in width. As it enters Grandview road there is a slight deviation to the south; it leaves the dimensions of lot 4, 98.2 feet on Grandview road with a width of 90 feet across the rear of the lot.
On the 29th day of June, following the execution of the contract, defendant filed a duly executed and acknowledged plat of Red Bud Park which does not exactly conform to the proposed plat. The roadway designated as Oak Wood drive was renamed Red Bud drive and enters Grandview road on a straight line instead of upon a slight angle to the south, which left the frontage of lot 4, 90 feet, the same as the rear, instead of 98.2 feet, and also showed Bannister road or Ninety-First street to be 40 feet in width instead of 20 feet, as shown on the proposed plat. The land is described in this plat as being a subdivision of the north 28.56 acres of the east half of the southwest quarter of section 27, township 48 N., range 33 W., Jackson county, Mo., being described by metes and bounds. The plat shows the point of beginning to be the northwest corner of the east half of the southwest quarter of the section named, and falls within the description of the northeast quarter of the southwest quarter of said section 27.
Defendant's evidence tends to show that the plaintiffs were consulted in reference to it; that defendant advised with them; and that all of the details of it were explained and met the approval of plaintiffs before the plat was filed, and that Mr. Shupe said: Mr. Shupe testified that he thought this conversation was about two months after the execution of the contract, but would not say that it was not before the filing of the plat. He said that on request he called at defendant's office to see Mr. King, who informed him that the surveyor had made a mistake in the old plat and that defendant had prepared and filed a new one, but that plaintiff could have the land he purchased either according to the original purchase or according to the new plat. Witness said he wanted it according to the original purchase, and Mr. King said he would get it that way. Plaintiffs claim that, relying upon this assurance, they continued to make their payments until the latter part of September, when they went to the office to obtain their deed and to execute deeds of trust; that at that time they discovered that the deeds of trust described the ground according to the new plat, and refused to accept the deed, or to sign the deeds of trust. Plaintiffs made another payment after this interview. Thereafter, there were negotiations between the parties and communications between them by letter and between the attorneys of the respective parties which show that defendant was endeavoring to satisfy the plaintiffs and was continually assuring them that they could have the property according to the original description if they insisted upon it, and that plaintiffs demanded the property according to the original description.
On December 2, plaintiffs' attorney notified defendant of the attitude of his client as follows:
"His position therefore is that he does not want to accept any different land than that described in his contract and if you are not in position to deliver title to this land he asks the return of his $400."
On December 6, the attorney for defendant notified the attorney for the plaintiffs that arrangements were being...
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