Stagner v. Staples

• Decision Date: 05 April 1968
• Docket Number: No. 8660,8660
• Citation: 427 S.W.2d 763
• Parties: Lurton H. STANGNER, Plaintiff-Respondent, v. George STAPLES, Jr., Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 763

427 S.W.2d 763

Lurton H. STANGNER, Plaintiff-Respondent, v. George STAPLES, Jr., Defendant-Appellant.

No. 8660.

Springfield Court of Appeals, Missouri.

April 5, 1968.

James A. Cochrane, Jr., Finch, Finch, Knehans & Cochrane, Cape Girardeau, for defendant-appellant.

Robert A. Dempster, Jack O. Edwards, James R. Robison, Dempster, Edwards & Robison, Sikeston, for plaintiff-respondent.

HOGAN, Presiding Judge.

This is an action for breach of an oral contract. The plaintiff has had judgment against the defendant in the amount of $2,000, and the defendant appeals. The sole question before us is whether the agreement was a contract for the sale of an interest in land within the requirement of the Statute of Frauds, Section 432.010, RSMo 1959, V.A.M.S., that such contracts be in writing.

Defendant Staples is a banker and real estate developer. At some time prior to July 1965, Mr. Staples acquired an option to purchase a 31.5 acre tract of land in Sikeston, Missouri. This option was then transferred to Kingsway Plaza, Inc., a Missouri corporation. Mr Staples was secretary of the corporation, and he, his wife, a Mr. Lowman and his wife, made up the board of directors. The option was taken--and it is fairly inferable that the corporation was formed--so the tract of land involved could be developed as a shopping center. The option was transferred to the corporation during the period of time here involved, but was not exercised until September 30, 1965.

In the early part of July 1965, the plaintiff and a Mr. Berry met with the defendant at defendant's office. They discussed Mr. Staples' proposed development and Staples told the plaintiff 'that he wanted the trees taken down and stumps and all the undergrowth and the ground got in good shape to build some buildings.' A small photograph of the land introduced in evidence shows that there were indeed a large number of trees on the property at that time. Mr. Stagner asked for time to look at the job, did so, and called on the defendant again the following Sunday.

Plaintiff's offer was that 'I would take a tractor and disk and disk the weeds down and I would take the trees out, stump and all, and I would clean the ground. I would pick up all the roots, limbs, and I would disk the ground the second time after I got all of the stuff off of the ground, and Mr. Staples told me that I could push the stumps from these trees back in the southwest corner of the plot of ground and I could have a year's time to get rid of them.' Plaintiff agreed to do the job for $6,750 'and I get the timber that was on the ground.' According to Mr. Stagner, this meant the timber that had fallen on the ground. Plaintiff did not know the value of the timber precisely, but said it 'was over $300,' and he was to receive the timber in addition to the sum of $6,750. He planned to do the job with bulldozers, a scraper and a tractor-drawn scoop, and he estimated that he would have realized about $2,750 above expenses, if he had been allowed to perform his contract. His further evidence was generally that Mr. Staples had accepted his offer but had refused to allow him to perform.

Defendant's testimony concerning the nature of plaintiff's undertaking was substantially in accord with Mr. Stagner's. Mr. Staples denied that he had ever accepted the plaintiff's offer, and took the position that he had been acting for the corporation and had made that clear to the plaintiff. Defendant's evidence was that Mr. Lowman had refused the offer on behalf of Kingsway Plaza, Inc., because Lowman '* * * wanted it reduced to a written contract and * * * wanted insurance and a performance bond,' and Stagner was unable to secure insurance or a performance bond. As indicated, a jury has resolved the questions of acceptance and breach, and the only question here is whether the agreement was enforceable without a written memorandum.

At the outset, we have had to consider the possible effect of the Uniform Commercial Code ¹ on this transaction. Section 76 of the Uniform Sales Act defines the word 'goods' in terms similar to those used in Section 400.2--105, RSMo Supp.1967, V.A.M.S., and some courts have held that under the Uniform Sales Act a contract for the sale of standing timber is a contract for the sale of personalty, even though severance is to be made by the purchaser, because 'goods' under the Uniform Sales Act include '* * * emblements, industrial growing crops, and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale.' Uniform Sales Act § 76(1); Paullus v. Yarbrough, 219 Or. 611, 347 P.2d 620, 625--633(3)(4) (5), 79 A.L.R.2d 1222, 1231--1239. But while the Uniform Commercial Code defines 'goods' in terms similar to the Uniform Sales Act, the definition has been rewritten, and contracts to sell timber, minerals or structures to be removed from the land are governed by Section 400.2--107(1), RSMo Supp.1967, V. A.M.S. ² Section 400.2--107(1), RSMo Supp.1967, V.A.M.S. provides that a contract for the sale of timber, minerals or the like is a contract for the sale of goods if severance by the seller is contemplated, but if the buyer is to sever, then the transaction is subject to that part of the Statute of Frauds which deals with transfers of interests in land. ³ Whatever the proper construction of this agreement, Stagner, and not Staples, was to push down the trees, and the Uniform Commericial Code does not change the law respecting the transaction.

Much has been written about contracts Frauds, ⁴ but a discussion of general principles contracts for the sale of an interest in land within the provisions of the Statute of Frauds84 but a discussion of general principles is unnecessary. The parties are not in disagreement as to general principles, but only as to how they apply here. Stressing the fact that Mr. Stagner was to receive the fallen timber as part of the bargain, the appellant maintains the transaction involves the sale or transfer of title to standing timber, and that any oral contract relative thereto was unenforceable. Our courts have consistently held that trees are part of the land, and that contracts for the sale of standing timber are contracts for the sale of an interest in land, required by the Statute of Frauds to be in writing to pass title or to be enforceable. ⁵ The respondent on the other hand, says that the agreement sued on was only a contract for Stagner's services in preparing the land for construction, and there is indeed a long line of general authority which holds that if a contract of this nature is only a contract of employment to cut down and revove timber, it is not a contract for the sale of an interest in land and need not be in writing. ⁶ Our problem is to characterize the agreement, bearing in mind that individual contracts do not lend themselves well to topical classification, especially when they are wholly verbal.

In this case, the defendant vigorously denied that Stagner's offer was ever accepted, or that he, the defendant, ever became bound as an individual person, since he was only acting for the corporation, but the terms of the contract--what...