Starr v. Crenshaw

• Decision Date: 05 July 1919
• Docket Number: No. 20268.,20268.
• Citation: 279 Mo. 344,213 S.W. 811
• Parties: STARR v. CRENSHAW.
• Court: Missouri Supreme Court

213 S.W. 811

279 Mo. 344

STARR v. CRENSHAW.

No. 20268.

Supreme Court of Missouri, Division No. 2.

July 5, 1919.

Rehearing Denied July 16, 1919.

Appeal from Circuit Court, Barton County; B. G. Thurman, Judge.

Suit by J. G. Starr against G. L. Crenshaw. Judgment for defendant, and plaintiff appeals. Reversed and remanded, with instructions.

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, Mo.

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and contract, coupled with the averment that said option was without any consideration whatever, and that it was withdrawn by the defendant before it was accepted by the plaintiff, and that plaintiff for this reason has no right, or claim, or interest in said land, or any cause of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, Cal., a letter which, omitting formal parts and signature, reads thus:

"Yours of the 3d inst. received and noted. Regarding the price of my coal land S. W. ¼ 28-32-33, Barton county, Mo., will say I am holding it at $18,000 net; $6,000 cash, balance in 3 equal annual payments of $4,000, 6% interest, payable semiannually 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 $4,000 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 any time 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 1, 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, Mo., to defendant, on December 13, 1915, replied by letter, which letter, again omitting merely formal parts and signature, reads thus:

"Replying to your favor of December 8th, will say we will immediately commence prospecting on your land following a reply from you giving us the privilege to commence prospecting, and have until the 1st day of February, and will prospect same and accept your proposition as per your letter of the 8th. If we can find enough coal that is available for steam shovel stripping on the 160 acres to justify us in paying your price, we will accept your terms. If we do not find enough coal so that we can afford to pay the price we will tell you the amount of coal we think is on your land.

"Hoping to hear from you by return mail, I remain."

To this letter, under date of December 17, 1915, defendant replied thus:

"Yours of the 13th inst. received in regard to prospecting my coal land in Barton county. In reply, I hereby authorize you to enter upon said coal land S. W. ¼ 28-32-33, Barton county, for the sole purpose of prospecting same for coal at your own expense. I will give you until February 1st to do this prospecting. If you find coal satisfactory, will sell you the land on the terms stated in my letter of the 13th inst.

"You must understand that this permission to enter the ground and prospect it is in no way a lease, excepting for the mere purpose of ascertaining to your own satisfaction the quantity and quality of coal underlying the property, and further, the time limited in which you are permitted to make this investigation runs to February 1, 1916, at which time you will remove all machinery and apparatus of whatever kind from the premises."

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, advised defendant by letter that he had put down several holes, and so far the showing was fairly satisfactory. He added:

"We desire to do considerable more drilling, and several days ago bad weather set in here and all work of this nature has been suspended. There is ice all over the district and the drillers cannot do any work. If the weather gets better within the next few days we will no doubt be able to complete our prospecting by the 1st of February, otherwise we may have to ask for a few days' extension."

On the 31st day of January, 1916, plaintiff sent to defendant the below telegram, to wit:

"The extreme wet and stormy weather has prevented drilling on your land, and weather at this time is very unfavorable. Will you grant 30 days' extension on my option to complete work?"

To this telegram, on February 1, 1916, the defendant replied as follows:

"Will extend option to March 1st provided you will to (sic) give certified report your drillings, also pay interest on deferred payments from February 1st in event you buy the land. Other parties want 60 days to prospect as soon as you are through, certified report will save delay. Wire at once."

To this telegram plaintiff wired on February 2, 1916, an acceptance as follows:

"Accept your proposition. Will complete drilling as soon as possible."

Thereafter, and on February 8, 1916, plaintiff wrote defendant the following letter:

"We received your telegram giving us permission until the 1st of March to complete the drilling, but that if you wanted the notes to bear interest from the 1st of February in the event that we closed the deal with you. This is satisfactory to us.

"The weather has improved some in the last few days and we have about completed our drilling.

"According to the drilling there is something like 80 acres of coal on the 160 that probably can be handled with our shovel. No doubt there is more coal than this but it would be in the Way of pillars and in such condition that we could not run our shovel over and take off the overburden.

"We find that about 30 acres of this 80 acres in the southwest corner of the 160 has about a 5-foot vein or strata of sand rock. This will be very expensive operating with our shovel, as it will have to be shot and we are not sure that we can even handle this rock after it is shot. However, we are willing to try this out.

"In view of the fact that you will want an agreement stating that in the event a certain amount of coal should be taken off this land before the deferred payments become due, should such be the case I take it from your letter that the payments cannot run one, two and three years. If this is a fact, we deem it would be better to make you a cash offer for this property and have concluded to make an offer of $16,000 for this 160 acres. If you conclude to accept this offer, I would like to have an answer one way or the other, by wire, upon receipt of this letter.

"Hoping to hear from you promptly, I remain."

This letter defendant answered on February 11, 1916, as follows:

"Your favor of the 8th inst. received, and in reply will say I am willing to stand by my agreement per letter December 8, 1915, to sell you the land for $18,000. However, I am not particular at this time about selling the land at that price; and, when you are through with the investigation, send me a statement of such investigation and call the deal off if you wish. Think I can mine the coal and make a good profit above this price.

"Should you decide to buy the land, deposit $6,000 in the bank of Thomas Egger on or before the 1st of March, payable to my order, on the delivery of my warranty deed to this land with an abstract showing clear title, and notify me by wire when you have made such deposit and I will forward the deed to Mr. Egger with instructions to deliver to you upon the payment of this $6,000 and your proper execution of the trust deed, per my letter of December 8th, in addition to the notes and trust deed and an agreement to pay the notes and trust deed before due, provided you take out the coal according to my letter of December 8th.

"Time is the essence of my letter of December 8th; and, unless the matter is closed up strictly on time and according to the terms, I shall not feel under obligation to make the conveyance. I write you this early on this point that you may be prepared and not have an excuse for failing to be prompt. The fact is I regret now that I made you this price, however I...