Smith v. Worsham, No. 10131

CourtMissouri Court of Appeals
Writing for the CourtHOGAN
Citation552 S.W.2d 367
PartiesMancil SMITH, Plaintiff-Respondent, v. Donald D. WORSHAM, Defendant-Appellant, and Ethel Sutherland, Defendant.
Docket NumberNo. 10131
Decision Date01 June 1977

Page 367

552 S.W.2d 367
Mancil SMITH, Plaintiff-Respondent,
v.
Donald D. WORSHAM, Defendant-Appellant,
and
Ethel Sutherland, Defendant.
No. 10131.
Missouri Court of Appeals, Springfield District.
June 1, 1977.

Page 368

John Alpers, Jr., Cabool, for defendant-appellant.

Albert F. Turner, Mountain Grove, G. Michael Baker, Springfield, for plaintiff-respondent.

HOGAN, Judge.

In this declaratory judgment action plaintiff Mancil Smith sought construction of a contract for the sale of real estate and an adjudication of the parties' interest in and right to a $5,000 payment made by defendant Worsham upon signing the contract. The cause was tried without a jury. The trial court found and declared that the contract in issue was valid, that defendant Worsham was bound thereby, and that plaintiff and defendant Ethel Sutherland were each entitled to receive one-half the $5,000 payment because of defendant Worsham's default. Worsham appeals.

Worsham lives near Eltopia, Washington, but was "born and raised" in Wright County, and was in Mountain Grove "(s)omewhere around the 10th, 12th of February" 1973. In his words, he was "looking for a place." Defendant Sutherland had employed the plaintiff, a licensed real estate broker, to sell her 645-acre farm located in Douglas County. As we understand the terms of plaintiff's listing, the Sutherland property was to be sold for $135,000; $5,000 was to be paid at the time a contract of sale was executed, and the balance was to be paid in cash or financed upon delivery of the dead. The vendor was willing to "carry" part of the unpaid balance with interest at the rate of seven percent per annum.

Page 369

At some time after his arrival in Mountain Grove the chronology of the record is very confused Worsham contacted Smith and looked over the Sutherland property several times. Worsham agreed to pay the asking price, but "wouldn't go but six and a half percent interest" on the unpaid balance. This proposal was accepted by Mrs. Sutherland as vendor.

Plaintiff prepared a contract on Thursday, February 15, 1973. The contract, according to the plaintiff is a "standard form of agreement" "prepared by the Missouri Real Estate Association". As material here, the contract recites that it was executed the 15th day of February 1973 by defendant Sutherland, a single woman, as seller, and defendant Donald D. Worsham and Yvonne Worsham, his wife, as buyer. The opening paragraph further provides: "The terms Seller or Buyer, may be either singular or plural according to whichever is evidenced by the signatures affixed below." The instrument goes on to recite that the seller agrees to sell and convey and the buyer agrees to purchase 645 acres of land in Douglas County, and that the purchase price for the property shall be $135,000, to be paid as follows: $5,000 upon execution and delivery of the contract, receipt of which is acknowledged, and the balance in cash or by certified check "and if the Seller agrees to finance a part of the purchase price . . . then by delivering the note and deed of trust as hereinafter provided . . .."

A number of optional "financing agreements" follow, and the contract provides, "Only those paragraphs which are completed shall be applicable." The alternative "completed" paragraph provides that the seller agrees to finance a part of the purchase price in the amount of $110,000 to be evidenced by a promissory note payable in installments over a period of 10 years, bearing interest at the rate of 61/2 percent per annum, and a first deed of trust. The contract provides that the sale shall be completed at plaintiff's office on April 15, 1973, "or at such other time and place as the parties may mutually agree." The seller agrees to pay plaintiff $10,000 as a commission. The contract is signed by Donald D. Worsham and Ethel Sutherland. A number of general conditions and provisions follow, one of which is a recital that it is understood that time is of the essence of the contract, and if the Seller "has kept Seller's part of this agreement . . . and the Buyer fails to comply with the requirements of this agreement within ten (10) days (after seller furnishes good title) then the money deposited (as earnest money) shall be paid over to the Seller as liquidated damages . . . and this agreement may or may not be thereafter operative, at the option of the Seller. If the aforesaid money deposited is paid over to the Seller, then it shall be divided equally between the Seller and the said named agent (plaintiff)." In addition to those provisions we have recited, the contract contains a "special agreement" which reads: "Buyers agree to make a payment of $14,150.00 on or before October 15, 1973."

There is no question that Worsham gave plaintiff a check for $5,000 at the time the agreement was signed. The check was made payable to Smith Realty Company, and plaintiff deposited the check to a "trust account" at a local bank. There is further no question that Yvonne Worsham, defendant Worsham's wife, was not present when the negotiation preceding the contract took place, nor when the contract was signed. Yvonne Worsham was in Washington, never saw plaintiff nor discussed the transaction with plaintiff, and became aware that her husband had signed the contract only after defendant Worsham returned to Washington. Defendant Worsham then advised his wife of the transaction, and the two came to Missouri to inspect the property. For whatever reason, Mrs. Worsham refused to sign the contract, defendant Worsham asked that his $5,000 be returned, and this action followed.

The trial court made complete findings of fact and declared the rights of the parties. Contrary to the plaintiff's assertion, such findings in a declaratory judgment action are not regarded as voluntary,

Page 370

even though they were not requested; in a declaratory judgment action, the trial court must make a declaration of the rights of the parties and enter that declaration as part of the judgment or decree. Smith v. Pettis County, 345 Mo. 839, 843-844, 136 S.W.2d 282, 284-285(1-3) (1940). It is unnecessary to set forth all the findings, although they have been helpful. Of particular concern here are findings 8(a), (b) and (c), acknowledging that defendant Worsham denied the existence of a contract because it was not signed by all the parties between whom it was purportedly made, and declaring as a matter of law 1) that the Statute of Frauds, § 432.010, RSMo 1969, V.A.M.S., was satisfied; 2) that defendant Worsham signed the contract and was bound thereby, and 3) that plaintiff and defendant Sutherland were each entitled to one-half the amount of the earnest money as liquidated damages. We acknowledge that our review is governed by Rule 73.01, para. 3, V.A.M.R., as construed in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976), but in this case we have concluded, with deference, that the law has been erroneously applied.

This is not a case in which the broker seeks to recover his commission; the plaintiff's right of recovery, and that of his principal, depend on the validity of the contract of sale. Therefore, the determinative question is whether or not Worsham was bound when the contract on its face purported to be made between the vendor and Worsham and his wife. The...

To continue reading

Request your trial
8 practice notes
  • State Dept. of Labor and Indus. Relations, Div. of Labor Standards v. Board of Public Utilities of City of Springfield, No. 20106
    • United States
    • Court of Appeal of Missouri (US)
    • October 18, 1995
    ...Western ... is not subject to [the Act]." It is unnecessary to set forth all findings in a declaratory judgment action. Smith v. Worsham, 552 S.W.2d 367, 370 (Mo.App.1977). The general rules with respect to findings apply in actions for declaratory judgment. 26 C.J.S. Declaratory Judgments ......
  • Wm. A. Smith Contracting Co., Inc. v. Missouri Pac. R. Co., No. KCD
    • United States
    • Missouri Court of Appeals
    • December 27, 1978
    ...such declaration in the judgment or decree. Smith v. Pettis County, 345 Mo. 839, 136 S.W.2d 282, 285 (1940); and Smith v. Worsham, 552 S.W.2d 367, 370 (Mo.App.1977). Simply put, as applied to this case (assuming for purposes of discussion that the matter was ripe for summary judgment pursua......
  • Wright v. Martin, No. 13404
    • United States
    • Court of Appeal of Missouri (US)
    • July 9, 1984
    ...she cites Rannells v. Gerner, 80 Mo. 474 (1883); Chamberlain v. Spalding, 237 Mo.App. 1040, 170 S.W.2d 454 (1943), and Smith v. Worsham, 552 S.W.2d 367 (Mo.App.1977). None of those decisions support her Rannels states that a deed of an insane person after being placed under guardianship is ......
  • City of New Madrid v. Associated Elec. Co-op., Inc., No. 10850
    • United States
    • Missouri Court of Appeals
    • June 1, 1979
    ...trial court to make a declaration of the rights of the parties and to enter such declaration as a part of the judgment. Smith v. Worsham, 552 S.W.2d 367, 370 The judgment in this case does not contain a declaration of rights of the parties. While we recognize that the scope of our review is......
  • Request a trial to view additional results
8 cases
  • State Dept. of Labor and Indus. Relations, Div. of Labor Standards v. Board of Public Utilities of City of Springfield, No. 20106
    • United States
    • Court of Appeal of Missouri (US)
    • October 18, 1995
    ...Western ... is not subject to [the Act]." It is unnecessary to set forth all findings in a declaratory judgment action. Smith v. Worsham, 552 S.W.2d 367, 370 (Mo.App.1977). The general rules with respect to findings apply in actions for declaratory judgment. 26 C.J.S. Declaratory Judgments ......
  • Wm. A. Smith Contracting Co., Inc. v. Missouri Pac. R. Co., No. KCD
    • United States
    • Missouri Court of Appeals
    • December 27, 1978
    ...such declaration in the judgment or decree. Smith v. Pettis County, 345 Mo. 839, 136 S.W.2d 282, 285 (1940); and Smith v. Worsham, 552 S.W.2d 367, 370 (Mo.App.1977). Simply put, as applied to this case (assuming for purposes of discussion that the matter was ripe for summary judgment pursua......
  • Wright v. Martin, No. 13404
    • United States
    • Court of Appeal of Missouri (US)
    • July 9, 1984
    ...she cites Rannells v. Gerner, 80 Mo. 474 (1883); Chamberlain v. Spalding, 237 Mo.App. 1040, 170 S.W.2d 454 (1943), and Smith v. Worsham, 552 S.W.2d 367 (Mo.App.1977). None of those decisions support her Rannels states that a deed of an insane person after being placed under guardianship is ......
  • City of New Madrid v. Associated Elec. Co-op., Inc., No. 10850
    • United States
    • Missouri Court of Appeals
    • June 1, 1979
    ...trial court to make a declaration of the rights of the parties and to enter such declaration as a part of the judgment. Smith v. Worsham, 552 S.W.2d 367, 370 The judgment in this case does not contain a declaration of rights of the parties. While we recognize that the scope of our review is......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT