Suhre v. Busch
| Decision Date | 10 October 1938 |
| Docket Number | 35216 |
| Citation | 120 S.W.2d 47,343 Mo. 170 |
| Parties | Lilly Anheuser Suhre v. Adolphus Busch III and August A. Busch, Jr., Executors of the Will of August A. Busch, Appellants |
| Court | Missouri Supreme Court |
Rehearing Granted, Reported at 343 Mo. 170 at 193.
Appeal from Circuit Court of City of St. Louis; Hon. O'Neill Ryan, Judge; Opinion filed at May Term, 1938, May 26 1938; motion for rehearing filed; motion overruled at September Term, October 10, 1938.
Reversed and remanded (with directions to dismiss plaintiff's bill.)
Buder & Buder and G. A. Buder, Jr., for appellant.
(1) The tender by a plaintiff of the amount due, to entitle him to specific performance of a contract, stops the running of interest from the date of such tender, even though the amount thereof is not deposited. Consequently a decree of specific performance in favor of the party making such tender should not charge him with the payment of interest after the date of such tender. Sec. 1260, R. S. 1929; Gray v. Gurley, 252 Mo. 410, 159 S.W. 1076; Knollenberg v. Nixon, 171 Mo. 445; Tacoma Water Supply Co. v. Dumermuth, 51 Wash. 609, 99 P. 743; Hughes v. Antill, 23 Pa S.Ct. 296; Stein v. Leeman, 161 Cal. 502, 119 P 664. (2) Respondent held mere unilateral options, lacking mutuality, to buy shares of corporate stock. Time was of the essence. Equity will not enforce such options unless they acquire mutuality. These did not acquire it. 58 C. J., p. 976; Wilson v. Seybold, 216 F. 977; 58 C. J., pp. 974, 976, 977, secs. 159, 160; Waterman v. Banks, 144 U.S. 401; Glass v. Rowe, 103 Mo. 540; Warren v. Castello, 109 Mo. 343; Hollmann v. Conlon, 143 Mo. 383; Coleman v. Applegarth, 68 Md. 21; Potts v. Whitehead, 5 C. E. Gr. 55; Starr v. Crenshaw, 279 Mo. 357. (3) Respondent's options to repurchase the shares had expired long before she made her tender in May, 1933. An extension of option time, to be valid, must be supported by a valuable consideration, lacking in the instant case. The first option expired March 15, 1931. Starr v. Crenshaw, 279 Mo. 354; 58 C. J., sec. 161, p. 977; Coleman v. Applegarth, 68 Md. 30, 6 Am. St. Rep. 417; Cummings v. Beavers, 103 Va. 230, 1 A. & E. Ann. Cas. 989. (4) The circuit court erred in finding and holding "that on April 16, 1931, the plaintiff was ready, willing and able to pay the repurchase price . . . under both of the contracts, . . . and then sought and endeavored to repurchase her said stock, but . . . was unable, by reasonable and diligent efforts on her part, to repurchase . . . because of the default and delay of defendants' testator and the breach of said contracts on his part." (a) The burden of proof resting on a plaintiff seeking specific performance is unusually heavy. It continues "from end to end through pleadings and proof." It must "show him ready, desirous, prompt and eager" in doing all that is reasonably necessary to complete his part of the transaction. Oliver v. Johnson, 238 Mo. 373; Russell v. Sharp, 192 Mo. 286. (b) Mrs. Suhre failed utterly to sustain the heavy burden of proof imposed upon her by law. The clear weight of the evidence proved that she failed to repurchase because of her financial inability to pay, coupled with the culpable laches and neglect of herself and Mr. Suhre, her agent, in trying to borrow the money needed. (5) In exercising judicial discretion whether to grant or refuse specific performance in the particular case, it is the rule, enforced in this court, that when time is of the essence, if the party seeking specific performance has been guilty of delay in performance and during such delay there has been a material change in the circumstances affecting the rights or interests of the other party, as in the instant case, which would make it inequitable to compel performance, relief by specific performance will be refused. Laches bars recovery. Brown v. Massey, 138 Mo. 519; Bliss v. Pritchard, 67 Mo. 187; Davis v. Petty, 147 Mo. 385; McQuary v. Mo. Land Co., 230 Mo. 366; Davison v. Davis, 125 U.S. 95; Shimpff v. Dime Deposit Bank, 208 Pa. 380; Diamond State Iron Co. v. Todd, 6 Del. Ch. 163, 8 Houst. 372; Lamdrum v. Union Bank, 63 Mo. 57; 21 C. J., p. 220; Troll v. St. Louis, 257 Mo. 661; State ex rel. v. West, 68 Mo. 229. (6) Even if it should be held that the circuit court was right in finding and holding that Mr. Busch breached his contracts by not selling the shares to Mrs. Suhre in April or in May, 1931, the circuit court erred nevertheless in granting specific performance, because Mrs. Suhre sustained no actual damages by his alleged breach of contract. Lydick v. Holland, 83 Mo. 707; Terry v. Michalak, 319 Mo. 301; Frederich v. Union E. L. & P. Co., 336 Mo. 1051. (7) The circuit court erred in admitting in evidence, as a valid deposition, a stenographer's transcript of the oral testimony given by August A. Busch in a partially completed deposition taken at the instance of respondent, although said transcript had not been signed nor sworn to by August A. Busch, nor supported by the certificate of the special commissioner, as required by statute to render it admissible as a deposition. Secs. 1774, 1780, R. S. 1929; Lydon v. Manion, 3 Mo.App. 601; Powell v. Hunter, 165 S.W. 1011, 257 Mo. 445; Arnold v. Kearney, 29 F. 821; Bell v. Chambers, 38 Ala. 664; Woodward v. Fuller, 145 Ga. 254; Eisenmeyer v. Sauter, 77 Ill. 517; Louisville Co. v. Cater, 66 S.W. 509; Flavell v. Flavell, 20 N.J.Eq. 213, affirmed 22 N.J.Eq. 599; Zehner v. Lehigh Co., 187 Pa. 490. (a) The circuit court erred in permitting Mrs. Suhre, the plaintiff, to testify on her own behalf, over defendants' objection that she was incompetent under Section 1723, Revised Statutes 1929, to testify to events prior to the probate of the will of August A. Busch, in her suit against his executors. (b) The circuit court also erred in finding that Mr. Huber had negotiated the contracts with Mrs. Suhre, and in ruling -- upon said finding -- that the disabling statute had been waived. Sec. 1723, R. S. 1929; Kersey v. O'Day, 173 Mo. 569; Weiermueller v. Scullin, 203 Mo. 474; Poague v. Mallory, 208 Mo.App. 403; Norton v. Lynds, 24 S.W.2d 185; Hildreth v. Hudloe, 282 S.W. 748; Davis v. Robb, 10 S.W.2d 681. (c) The circuit court erred in admitting, over appellants' objection, selected portions of the unfinished deposition of Mr. Busch as claimed admissions against interest. Kritzer v. Smith, 21 Mo. 301; Friedman v. United Rys. Co., 293 Mo. 245; Hill v. Sturgeon, 28 Mo. 323, at 329.
Nagel, Kirby, Orrick & Shepley and Daniel N. Kirby for respondents.
(1) The Missouri statute, Section 1260, Revised Statutes 1929, relied on for appellant, does not apply to suits in equity. (a) Section 1260 applies only to actions at law. (b) This court has firmly established the doctrine that equity deals with tenders upon rules of its own without regard to this statute. Kline v. Vogel, 1 S.W. 733, 2 S.W. 408, 90 Mo. 247; Jopling v. Walton, 40 S.W. 99, 138 Mo. 491; Yeamon v. Lepp, 66 S.W. 957, 167 Mo. 73; Haydon v. Railroad, 121 S.W. 15, 222 Mo. 135; Ruppell v Mo. Guar. Savs. & Bldg. Assn., 59 S.W. 1000, 158 Mo. 623. (c) The rule generally is that to stop interest a tender must be kept good by a deposit. Bissell v. Heyward, 96 U.S. 580, 24 L.Ed. 680; Kroener v. Mut. Life Ins. Co., 297 F. 613; Kelly v. Keith, 85 Ark. 30, 106 S.W. 1174; Rankin v. Rankin, 216 Ill. 132, 74 N.E. 767; Lewis v. Helton, 144 Ky. 595, 139 S.W. 774; Burke v. Mountain Timber Co., 224 F. 597, 231 F. 1022; Stockton v. Dundee Mfg. Co., 22 N.J.Eq. 57; Whitaker v. Belvidere Roller Mill Co., 55 N.J.Eq. 674, 36 A. 292; Roosevelt v. Bull's Head Bank, 45 Barb. 584; Middle States Loan, Bldg. & Const. Co. v. Hagerstown Mattress & Upholstering Co., 82 Md. 506, 33 A. 888; Shank v. Groff, 45 W.Va. 543, 32 S.E. 250; Rowell v. Jewett, 73 Me. 368; Columbian Bldg. Assn. v. Crump, 42 Md. 194. (d) Appellant's cases discussed. Gray v. Gurley, 159 S.W. 1076, 252 Mo. 410; Knollenberg v. Nixon, 72 S.W. 41, 94 Am. St. Rep. 790, 171 Mo. 455; Deichmann v. Deichmann, 49 Mo. 107; McGuire v. Brockman, 58 Mo.App. 307; Landis v. Saxton, 1 S.W. 359, 89 Mo. 375; Tacoma Water Supply Co. v. Dumermuth, 51 Wash. 609, 99 P. 743; Hughes v. Antill, 23 Pa. S.Ct. 296; Stein v. Leeman, 119 P. 664, 161 Cal. 502. (2) The basis on which courts of equity balance the equities in specific performance decrees shows that the decree here was correct in charging appellant with the interest involved in her cross appeal. (a) The time as of which the decree should speak. 58 C. J., secs. 574, 577, 597, 598, pp. 1220, 1226, 1244, 1246. (b) The basic principle for adjusting the equities. Sweeny v. Brow, 40 R. I. 292; Bostwick v. Beach, 103 N.Y. 414, 9 N.E. 43. (3) The agreements between Mrs. Suhre and Mr. Busch were not mere unilateral options lacking mutuality, but were bilateral contracts possessing mutuality and were supported by a full, valid and adequate consideration. They were, therefor, enforceable in equity. Lane v. Nunn, 211 Mo.App. 280, 243 S.W. 430; Mulliken v. Haseltine, 160 Mo.App. 13; In re Ferguson's Estate, 124 Mo. 584; Maccalum Ptg. Co. v. Graphite Compendius Co., 150 Mo.App. 390; Tebeau v. Ridge, 261 Mo. 561. (4) By a promise which the promisor should reasonably expect to induce action or forbearance of a substantial nature on the part of the promisee, made while the promisee still has the opportunity to act or not to act, the promisor waives and relinquishes the power to enforce his rights as they existed before the promise; and this is true even where there is no consideration for the promise. Mr. Busch was, therefore, bound by a valid and enforcible extension of the first contract to April 16, 1931. 2 Williston on Contracts, sec. 698, p. 1332; American Law Institute Restatement of the Law of Contracts, sec. 90; Gray v. Gurley, 252 Mo. 418, 159 S.W....
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