Terry v. Michalak

• Decision Date: 03 March 1928
• Docket Number: 26317
• Parties: Clifton R. Terry and Ellen Terry, His Wife, Appellants, v. Stanislaus Michalak and Antonina Michalak, His Wife
• Court: Missouri Supreme Court

3 S.W.2d 701

319 Mo. 290

Clifton R. Terry and Ellen Terry, His Wife, Appellants, v. Stanislaus Michalak and Antonina Michalak, His Wife

No. 26317

Supreme Court of Missouri

March 3, 1928

Appeal from Circuit Court of City of St. Louis; Hon. A. B Frey, Judge.

Affirmed.

Heideman & Heideman for appellants.

(1) Both counts of plaintiffs' amended petition state facts sufficient to constitute causes of action against defendants. 26 Am. & Eng. Ency. Law (2 Ed.) 32, 38; Edwards v Watson, 258 Mo. 639. (2) Plaintiffs have a right to waive any part of the contract inserted for their benefit. Robertson v. Const. Co., 294 S.W. 428. (3) Uncertainty or indefiniteness in portions of the contract pleaded in plaintiffs' amended petition will not render the petition demurrable, where there is no uncertainty in regard to the stipulation which it is sought to enforce and no relief is asked as to indefinite portions. 20 Ency. Plead. & Prac. 440-441. (4) Although the lot of land sold to plaintiffs by defendants and described in the contract of sale is more than defendants have, nevertheless plaintiffs have a right to insist on a conveyance of all the land defendants actually have, with an abatement in the purchase price for the difference. Barthel v. Engle, 261 Mo 311; Martin v. Jones, 286 Mo. 584; McGhee v. Bull, 170 Mo. 132; Luckett v. Williamson, 31 Mo. 58; Lindsay v. Smith, 178 Mo.App. 189; Hausmann v. Adams, 65 Mo.App. 273; Kirby v. Balke, 306 Mo. 122.

Ivon Lodge for respondents.

(1) The demurrer to the first count of plaintiffs' amended petition was properly sustained, because the contract pleaded is too indefinite and incomplete as to essential terms to support an action for specific performance. Pomeroy on Specific Performance of Contracts (3 Ed.) p. 376; Pomeroy on Specific Performance (2 Ed.) secs. 39, 154; Lackawanna Coal & Iron Co. v. Long, 231 Mo. 605; Henry v. Adkins, 194 S.W. 264; Mastin v. Halley, 61 Mo. 196; Klein v. Markarian, 175 Cal. 37; Potts v. Whitehead, 20 N.J.Eq. 55; Grace v. Dennison, 114 Mass. 16; Gottfried v. Bray, 208 Mo. 652; Rauck v. Wickwise, 255 Mo. 42; Hargis v. Smith, 178 S.W. 72; Caplan v. Buckner, 123 Md. 590. (2) The plaintiffs have no right, without the consent of the defendants, to waive the provision in the contract for notes secured by deed of trust. (a) The prayer to their amended petition cannot change the facts pleaded in the body of the same. Marberry v. Clark, 297 S.W. 39. (b) The provision for notes secured by deed of trust is for the benefit of the defendants as well as plaintiffs. Morgan v. Wast, 126 Ind. 42; Henly v. Streeter, 5 Ind. 207; 39 Cyc. 1575; 27 R. C. L. 535; Barbour v. Hickey, 2 App. D. C. 207. (3) The second count of the plaintiffs' amended petition fails to state a cause of action and the demurrer was properly sustained as to it. (a) It is not an action for damages occasioned by breach of contract, but is an action for wrongful occupancy of real estate to the occupancy of which it is alleged plaintiffs are entitled. (b) The relief asked for would properly be relief incidental to the specific performance sought in count one. (c) "A plaintiff cannot in one count ask damages for the breach of a contract to convey lands and in another count, resting on precisely the same facts and depending upon the same legal construction for the title it asserts to the remedy, ask specific performance of the same contract." McCall v. Atchley, 256 Mo. 39.

Seddon, C. Lindsay and Ellison, CC., concur.

OPINION

SEDDON

Action in equity for the specific performance of an alleged written contract for the sale and conveyance of real property, and for the recovery of damages alleged to have been sustained by plaintiffs because of the withholding of possession of said real property by defendants, together with monthly rents and profits alleged to have accrued to plaintiffs by reason of the occupancy and use of said property by defendants. Plaintiffs' petition is drawn in two counts. The substantive allegations of the first count of the petition, and the prayer thereof, are as follows:

"Plaintiffs further state that defendants on and prior to the 9th day of May, 1924, were, and now are, the owners in fee and seized and possessed of the following described lot, tract or parcel of land, lying and being in the city of St. Louis and State of Missouri, to-wit: The western thirty-five feet of lot number fourteen of Elmwood Park and in block number 5232 of the city of St. Louis, fronting thirty-five feet on the north line of Davison Avenue by a depth northwardly of one hundred and twenty-one feet and six inches to an alley, together with improvements thereon known as number 5009 Davison Avenue.

" That defendants, on said 9th day of May, 1924, offered to sell said land and improvements to plaintiffs, and then and there represented to plaintiffs that said lot or tract of land had a front of forty-five feet on the west side of said Davison Avenue and a depth of one hundred and fifty feet, and plaintiffs relying upon, and being induced by, said representations of defendants regarding said real estate, plaintiffs and defendants, on said date, entered into a contract in writing, which was signed by defendants and by plaintiffs, whereby defendants agreed to sell to plaintiffs said real estate for the total price and sum of sixteen hundred dollars, eight hundred dollars of which said sum should be paid by plaintiffs to defendants in cash and the balance of eight hundred dollars in notes, secured by deed of trust on said real estate, with interest on deferred payments at the rate of six per cent per annum, and that said sale should be closed on or before May 25, 1924; that title to said property should be perfect, and be conveyed to plaintiffs by warranty deed, free from liens and incumbrances, except the taxes for the year 1924, and thereafter, which plaintiffs assumed and agreed to pay; that said sale should be subject to restrictions recorded, and that the rents, interest, water license, taxes and insurance should be adjusted to date of transfer of said property; whereupon plaintiffs paid to defendants the sum of fifty dollars as earnest money and part purchase price for said real estate, the receipt of which defendants in and by said contract acknowledged; a copy of which said contract is hereto attached and marked 'Exhibit A.'

"Plaintiffs further state that in truth and fact the lot or tract of land known as number 5009 Davison Avenue, sold to plaintiffs by defendants under the contract aforesaid, has an actual front of only thirty-five feet, instead of forty-five feet, and an actual depth of only one hundred and twenty-one feet and six inches instead of one hundred and fifty feet, and that said Davison Avenue runs east and west and said lot and improvements actually front on the north side of said Davison Avenue, in block 5232 of the city of St. Louis, instead of on the west side of said street, as set out in said contract.

"Plaintiffs state that said lot or tract of land having dimensions of thirty-five feet front and 121 1/2 feet deep, and an area of 4252 1/2 square feet, is of far less value to plaintiffs than if its dimension were actually 45 feet front and 150 feet deep, as set out in said contract, with an area of 6750 square feet, and plaintiffs are entitled in equity and good conscience to a reduction or abatement of so much of the said purchase price as will compensate plaintiffs for said reduced value of said lot or tract of land, and plaintiffs have demanded from defendants a good and sufficient warranty deed for said lot or tract of land with its dimensions reduced to 35 feet front and 121 1/2 feet deep, and have offered to pay defendants the reduced value thereof, to be fixed mutually between plaintiffs and defendants, and plaintiffs have always been able, ready and willing, and are still able, ready and willing, to perform their part of said contract, and to pay defendants such reduced value of said lot or tract of land with improvements thereon for an indefeasible title thereto free from liens and incumbrances, except the taxes for the year 1924 and thereafter, and to do and perform fully any and all their undertakings, promises and agreements in said contract contained; and plaintiffs say that on or about the 12th day of May, 1924, they duly offered to pay to defendants the balance of said purchase money to be paid in cash and execute said notes and deed of trust, and duly and fully perform all and every one of the conditions of said contract on their part to be performed, and requested such conveyance from defendants, but defendants refused and still refuse to receive said reduced value of said real estate and to execute and deliver to plaintiffs their warranty deed, or to perform any part of said contract on their part undertaken.

"Wherefore, plaintiffs pray the court to ascertain and determine the reasonable value of said lot or tract of land with improvements thereon, hereinbefore described, as the western thirty-five feet of lot number fourteen of Elmwood Park and in block number 5232 of the city of St. Louis, fronting thirty-five feet on the north line of Davison Avenue by a depth northwardly of one hundred and twenty-one feet and six inches to an alley, and that defendants be ordered and directed to convey to plaintiffs, by good and proper warranty deed, subject to the conditions and restrictions of said contract, said lot or tract of land with improvements thereon, and that plaintiffs pay to defendants the price and sum so ascertained and determined by the court to be the reasonable value thereof; and for such other and further relief as to the court shall seem meet and proper."

The allegations and the prayer of the second count of the petition are as follows:

"And for another...