Tant v. Gee

• Decision Date: 04 January 1943
• Docket Number: No. 38182.,38182.
• Citation: 167 S.W.2d 67
• Parties: TANT v. GEE.
• Court: Missouri Supreme Court

167 S.W.2d 67

TANT v. GEE.

No. 38182.

Supreme Court of Missouri, Division No. 2.

January 4, 1943.

Appeal from Circuit Court, New Madrid County; Louis H. Schult, Judge.

Suit by John Tant against E. B. Gee for specific performance of a contract for the sale of realty. From an adverse judgment, the defendant appeals.

Judgment affirmed.

R. F. Baynes, of New Madrid, for appellant.

Ward & Reeves, of Caruthersville, for respondent.

BARRETT, Commissioner.

The question presented by this appeal is whether the trial court has entered a decree of specific performance in harmony with and conforming to the terms of this court's mandate in the case of Tant v. Gee, 348 Mo. 633, 154 S.W.2d 745.

John Tant instituted this suit to compel E. B. Gee to specifically comply with a written contract to sell and convey land. The contract provided that Tant was to pay Gee the sum of $2,400 in six annual installments. But subsequently to the execution of this contract the parties modified it by another written contract which provided that Tant might pay the consideration stated in the principal contract by selling certain other land for Gee on a commission basis, the commissions to be applied on the purchase price. Tant claimed to have sold three tracts of land entitling him to a substantial credit on the purchase price.

Upon a trial of the cause the court found that Tant was entitled to certain credits and decreed specific performance upon condition that he pay the balance of the stated consideration or the sum of $1,350.55. Gee's appeal to the Springfield Court of Appeals was transferred to this court because the action affected and involved title to real estate. Tant v. Gee, Mo.App., 146 S.W.2d 61, 62.

In deciding whether the case should be transferred or not Judge Tatlow said: "Hence, it is apparent that the actual controversy between the parties is whether the plaintiff, as found by the court and established by its decree, is only required to pay the defendant the sum of $1,350.55, to entitle him to a deed for the land purchased by plaintiff, or whether the plaintiff should have been required to pay the defendant the sum of $2,735.58 and taxes, as claimed by defendant, before plaintiff was entitled to a deed to the land purchased."

After the case was transferred Commissioner Bohling [348 Mo. 633, 154 S.W.2d 746] said: "Defendant's motion for new trial attacked the whole of the decree and judgment of the court. Defendant prosecuted an appeal to the Springfield Court of Appeals and there, as here, presented only issues questioning the propriety of the credits allowed plaintiff nisi." This court then found that Tant was not entitled, under the second contract, to the commissions and credits he claimed but was entitled to a credit of $40 and disposed of the case in this language: "The judgment is reversed and the cause remanded with directions to condition the decree of specific performance upon a credit to plaintiff of $40 only and otherwise proceed in conformity herewith."

The instant abstract of the record consists of the pleadings upon which the case was originally tried, the mandate and opinion of this court and the decrees of the trial court after the cause was remanded. The decree says: "* * * and there is now taken up for consideration the opinion and mandate of the Supreme Court in said cause, * * * and the court doth in conformity with said opinion and mandate" allow a credit of $40, also a cash credit of $120 and "disallows in conformity with the opinion" the credits claimed by Tant by way of commissions. The court then found the interest due under the original contract and adjudged that the total sum due Gee from Tant was $3,085.60. The decree then recites: "* * * it is adjudged and decreed by the court in conformity with the opinion and mandate of the Supreme Court, that upon...