Starr v. Crenshaw
| Decision Date | 16 July 1919 |
| Citation | 213 S.W. 811,279 Mo. 344 |
| Parties | J. G. STARR, Appellant, v. G. L. CRENSHAW |
| Court | Missouri Supreme Court |
Appeal from Barton Circuit Court. -- Hon. B. G. Thurman, Judge.
Reversed and remanded (with directions).
Fred W Kelsey and E. F. Cameron for appellant.
(1) It is conceded that an option to purchase land must be supported by a consideration or it can be withdrawn at any time prior to its acceptance. The option of February 1, 1916, or rather the renewal of the old option of that date was supported by a sufficient consideration to keep it open until March 1, 1916. Crenshaw offered to extend the option provided Starr would do two things: (a) Furnish reports of drilling and (b) pay interest on deferred payments from February 1, 1916, instead of from the date the deal was finally consummated. 6 Am. & Eng. Enc. (2 Ed.), 721 (8), note 6; Green v. Brooks, 81 Cal. 328. If the respondent desired the information as to the location of coal on the land drilled by Starr it was sufficient to support a consideration for a contract. Reed v. Golden, 28 Kan. 451, 42 Am. Rep. 180. A consideration may be defined as a benefit to the party promising, or a loss or detriment to the party to whom the promise is made. 13 C. J. 311 (144A). There is a consideration if the promisee, in return for the promise does anything legal which he is not bound to do, whether there is any actual loss or detriment to him or actual benefit to the promisor or not. 13 C. J. 315 (150) and 316; Glade v. Ford, 131 Mo.App. 164. After February 1st Starr did drilling at his own expense and furnished the information to Crenshaw. This is of value to Crenshaw. Crenshaw obtained this information and if he is permitted to repudiate his promise or agreement to convey he would thereby be enabled to perpetrate a fraud upon Starr. 13 C. J. 318. (2) The prime function of courts of justice is to enforce the written law and enforce established contracts -- the contract being as between the parties hereto but the law unto themselves. Evans v. Evans, 196 Mo. 23. (3) When Crenshaw attempted to withdraw the land from the market, that excused Starr from further carrying out any of the terms of his contract of option and making further reports as to the drilling. 6 R. C. L. sec. 374, p. 1012; Claes Mfg. Co. v. McCord, 65 Mo.App. 507; 9 Cyc. 635. (4) The fact that Crenshaw cannot convey all of the title does not relieve him from conveying that which he has, and Starr is entitled to receive such title as he has with an abatement out of the purchase money for so much as he cannot deliver. McGhee v. Bell, 170 Mo. 133; Story on Equity Juris. (13 Ed.) sec. 779. The inchoate right of dower should be deducted from the purchase price of this land. Tebeau v. Ridge, 261 Mo. 574.
H. W. Timmonds for respondent.
(1) An option giving the appellant a right to purchase respondent's land, without binding the appellant to purchase, and without consideration, is not enforceable against the respondent. Davis v. Petty, 147 Mo. 382; Wallace v. Figone, 107 Mo.App. 367. The option given appellant that expired February 1st had no consideration therefor in any respect, but was merely a privilege or permission to enter respondent's land and drill to ascertain the amount of coal underlying this land. This option was extended by respondent on condition that appellant would give respondent a certified report of his drillings and pay interest on the deferred payments from February 1st if appellant concluded to buy the land -- a consideration for the extension of the option, but no consideration in any contract to sell the land. Even if so, no certified report of appellant's drillings was given respondent. The drillings from the man who did the drilling, let alone giving respondent a certified report, as he agreed to do. This report of the drillings now claimed by appellant to be the consideration to support the alleged contract sued upon is merely a pretext, certainly not of sufficient importance to sustain a contract. (2) Even where there is a binding legal contract for the sale of real estate, a decree for specific performance thereof does not go as a matter of course, but is granted or withheld as the equity of the case demands. Brown v. Massey, 138 Mo. 532; Davis v. Petty, 147 Mo. 385. (3) There must be a consideration for an option to make it a binding contract and enforceable. A mere option to buy land within a specified time does not give either party any claim for damages. Huggins v. Stafford, 67 Mo.App. 474; Ramsey v. West, 31 Mo.App. 676. And may be withdrawn at any time before acceptance.
This is a proceeding in equity by which it is sought to compel specific performance of a certain option to convey the Southwest quarter of Section 28, in Township 32, Range 33, in Barton County, Missouri.
The petition is so far in conventional form as that no attack is made thereon by defendant. Among other things, this petition contains an offer by plaintiff of his willingness, ability and readiness to pay into court the sum agreed on, and "to do each and every thing required of him by said agreement and option," and he further avers that he "has at all times been willing to perform his part of said agreement, and that defendant has refused to accept said performance, and has repudiated and seeks not to be bound by said agreement."
The answer of defendant is a general denial, and a specific denial of the legal effect of the alleged option agreement and contract, coupled with the averment that said option was without any consideration whatever, and that it was withdrawn by the defendant before it was accepted by the plaintiff, and that plaintiff for this reason has no right, or claim, or interest in said land, or any cause of action against defendant.
The evidence offered consisted largely of letters and telegrams which passed from time to time between plaintiff and defendant. There was an admission that defendant "is the owner of the property described, to-wit, the Northwest [sic] quarter of Section 28, Township 32, except Mrs. H. C. Timmonds owns an undivided one-half interest in the west half of said Southwest quarter section; and that Mr. Crenshaw is a married man aged 62, and his wife's age is 58."
On the 8th day of December, 1915, defendant, in answer to a letter of plaintiff, wrote plaintiff from Los Angeles, California, a letter, which, omitting formal parts and signature, reads thus:
Yours of the 3rd inst. received and noted. Regarding the price of my coal land SW 1/4 28, 32, 33, Barton County, Mo., will say I am holding it at $ 18,000 net; $ 6000 cash, balance in 3 equal annual payments of $ 4000, 6% interest, payable semi-annually secured by deed of trust, which trust deed will provide that payments shall be made sooner than the terms of the trust deed, provided more than one-third of the coal was taken out each year. In other words, there must be $ 4000 paid when one-third of the present coal has been removed, if such removal takes place before note is due and so on during the life of the trust deed. I will give you permission to enter the ground and do such prospecting as you may deem necessary anytime up until the 1st of February, without expense or obligation to myself and with the right to you to remove any machinery that you may be using on the premises for that purpose, without restraint or hindrance, on or before the 1st of February, 1916. This is in no sense of the word giving you a lease or possession of the property in any way whatever, except for the sole and only purpose of ascertaining to your satisfaction the amount of coal underlying the land. This privilege shall expire February 1st, 1916. If you decide to prospect, drop me a line that you accept my terms and I will reply immediately, otherwise you have no right or privilege whatever to enter the premises.
To this letter plaintiff, writing from Joplin, Missouri, to defendant on December 13, 1915, replied by letter, which letter, again omitting merely formal parts and signature, reads thus:
To this letter, under date of December 17, 1915, defendant replied thus:
Thereafter, as appears from further correspondence, not particularly pertinent to the point in mind, plaintiff proceeded to drill the land in question, and on January 7, 1916...
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