Whaley v. Milton Const. & Supply Co.

• Decision Date: 19 June 1951
• Docket Number: No. 27976,27976
• Citation: 241 S.W.2d 23
• Parties: WHALEY et al. v. MILTON CONST. & SUPPLY CO.
• Court: Missouri Court of Appeals

Page 23

241 S.W.2d 23

WHALEY et al. v. MILTON CONST. & SUPPLY CO.

No. 27976.

St. Louis Court of Appeals, Missouri.

June 19, 1951.

Motion for Rehearing or to Transfer to Supreme Court Denied

July 6, 1951.

R. Forder Buckley, St. Louis, for appellant.

Coburn, Storckman & Croft, Rexford H. Caruthers, and Edward E. Murphy, Jr., all of St. Louis, for respondents.

ANDERSON, Presiding Judge.

This is an action for damages for the breach of a building contract brought by Eugene B. Whaley and Amy M. Whaley, as plaintiffs, against the Milton Construction and Supply Company, a corporation, and Vorhof-Duenke Real Estate Company, a corporation, as defendants. At the close of the evidence plaintiffs dismissed as to defendant Vorhof-Duenke Real Estate Company. The trial below resulted in a verdict and judgment in favor of plaintiffs and against defendant Milton Construction and Supply Company in the sum of $1,275. From the judgment on this verdict said defendant appealed.

The petition upon which the case was tried alleged that on or about the 15th day of July, 1947, plaintiffs and defendants entered into a contract by the terms of which defendants agreed to sell, and plaintiffs agreed to purchase, for a consideration of $10,075, a five room brick bungalow, to be erected by defendants on the lot known and numbered as 1281 Hafner Place, University City, Missouri, 'which bungalow, when completed, was to be in all material respects like a bungalow then in existence and located at 8310 Richards Street, University City, County of St. Louis, State of Missouri, and then used as a 'display house." It was then alleged that plaintiffs had performed all conditions under the contract to be performed by them, but that defendants failed to perform the contract in that said bungalow, as erected pursuant to said contract, contained dissimilarities to the said bungalow on Richards Street. The petition then sets forth twenty specifications of alleged material differences between the bungalow as erected for plaintiffs and the said bungalow at 8310 Richards Street. Certain of these specifications were stricken from the petition by plaintiffs, and certain others were at the trial withdrawn from the jury's consideration by withdrawal instructions. There were nine specifications left on which the case was submitted. The prayer of the petition was for damages in the sum of $3,000.

The joint answer of the defendants was in the nature of a general denial and a plea of lack of consideration, and a further plea that the contract was void under the statute of frauds.

Plaintiff Eugene B. Whaley testified that in the summer of 1947, while driving in University City, he saw a sign which directed his attention to a display house located at 8310 Richards Street in University City. This house was constructed by defendant Milton Construction & Supply Company. Mr. Whaley inspected the house and, on the occasion, met a Mr. Waddle who was a salesman for said defendant. Mr. Waddle told Whaley that all the houses on Richards Street had been sold but that his company was building houses on Hafner Place. Whaley then inspected the site of the house on Hafner Place, which site he later purchased. The house was then in the process of construction. Mr. Whaley then returned to the place on Richards Street and conferred further with Mr. Waddle. Whaley testified: 'I asked him (Waddle) about the construction of the house. He said the house would be built and there would be three F. H. A. inspections made while the house was under construction. * * * He told me that the house would be like the one on Richards that I was in, * * * and I gave him a check for fifty dollars, he gave me a receipt on a piece of yellow paper. The next day I went down to their office and met him and they signed an earnest money agreement. * * * it was the day following the date I talked to Mr. Waddle out at the place; it was the 15th of July, 1947.' Whaley testified later with reference to the conversation which occurred the day before the signing of the earnest money contract, as follows: 'He told me that the house being built would be the same as the one I was in, * * * except the one on Hafner Place would be put on a six foot wider lot, which would cost $50 more. He told me that the house over on Richards Street was on a smaller lot and the one on Hafner Place will be on a fifty foot lot, and 'you will have to pay $200 more for that.''

On cross-examination of Whaley, the following appears:

'Q. I understood you when Mr. Croft was examining you and you said all the conditions in the house on Hafner would be similar to the Richards? A. Yes.

'Q. When you say 'the same', you mean similar? A. That's the way I understand the two words.'

When Mr. Whaley went to defendant's office on July 15, 1947, he met Mr. Waddle. At that time Mr. Waddle returned to Mr. Whaley the check for $50 and Whaley wrote and delivered to Waddle a check for $200. The earnest money contract had been prepared and was ready for signature when Whaley arrived. This earnest money contract was signed by Waddle, and by Elmer Vorhof, President of the Milton Construction & Supply Company. Whaley also signed it. The pertinent parts of this earnest money contract are as follows:

'Received of Eugene Bissel and Amy M. Whaley the sum of Two Hundred & no/100 Dollars as earnest money and part purchase money for a certain parcel of real property, lying in the County of St. Louis, State of Missouri, described as follows:

'Being a 5 room brick bungalow having a front of 50 feet on the West line of Hafner Place.

'Note: Purchaser is to Pay $35.00 Extra For Electric Stove Wiring Plus $27.50 Covering Tank of Oil and Alarm; This is to be Paid in Cash When Sale is Consummated; This is Part of This Contract. 'together with the improvements thereon known as and numbered 1281 Hafner, which property is this day sold to Eugene Bissel and Amy M. Whaley for the total sum of Ten Thousand Seventy Five & no/100 Dollars of which Two Hundred & no/100 Dollars to be paid in cash upon the date of closing this sale, of which earnest money is a part and the balance payable as follows:'

There then follows the terms of sale, time for delivery of possession, and the closing date of sale.

Whaley thereafter drove by the house during the course of its construction about every two weeks. On October 29, 1947, Whaley received a deed transferring the property at 1281 Hafner Place to Mr. and Mrs. Whaley. The purchase price was $10,075. The Whaleys moved into the premises about November 6, 1947.

A great deal of evidence, pro and con, was introduced by the parties as to whether there were dissimilarities between the house on Hafner Place and the Richards Street property. It will not be necessary to review all this evidence as that portion material to the issues on this appeal will be referred to in our discussion of appellant's complaints with reference to the instructions given and refused.

Appellant assigns as error the action of the trial court in overruling its motion for a directed verdict. In support of this contention it is urged that the description of the property contained in the earnest money contract was insufficient to satisfy the requirements of the statute of frauds. Said contract describes the property as 'a certain parcel of real property, lying in the County of St. Louis, State of Missouri, described as follows: Being a 5 room brick bungalow having a front of 50 feet on the west line of Hafner Place, * * * together with the improvements thereon known as and numbered 1281 Hafner * * *.' This is a sufficient description under the decisions. Herzog v. Ross, 355 Mo. 406, 196 S.W.2d 268, 167 A.L.R. 407; Henleben v. Krause, Mo.Sup., 209 S.W.2d 888. The point urged by appellant is without merit for another reason. The record shows that plaintiffs fully performed all of the terms of the contract imposed upon them. Such being the case, appellant is in no position to invoke the statute of frauds as a defense. Davis v. Holloway 317 Mo. 246, 295 S.W. 105; Hart v. Riedel, Mo.App., 51 S.W.2d 891; Morris v. Mahn, 208 Mo.App. 575, 235 S.W. 827; Allison v. Cemetery Caretaking Co., 283 Mo. 424, 223 S.W. 41; McBride Realty Co. v. Grace, 223 Mo.App. 588, 15 S.W.2d 957.

It is next urged that the execution of the earnest money receipt was the final act of the parties expressing the terms of their agreement, and that all prior negotiations and agreements were merged therein, and for that reason the contract sued on could not be established without violating the parol evidence rule.

The rule referred to has no application to the facts in this case. The original contract between the parties was oral, and it does not appear that the execution of the earnest money receipt was intended as a reduction of that entire contract to writing. The purpose of the earnest money receipt was to bind the bargain, and its terms were limited to the terms of the sale. It contained nothing in relation to that part of the agreement that had to do with the construction of the house. Its purpose was merely to acknowledge receipt of the earnest money, identify the property to be conveyed, and specify the terms of the sale and the time and place of closing. Nor were the terms of the contract with reference to the character of the building to be constructed so related to the subject matter of the sale and conveyance of the property as to require, under the parol evidence, their inclusion in the earnest money contract before they could be enforced. Oral proof of the terms of the contract with respect to the kind of house contracted for in no way tended to vary, add to, or contradict the earnest money contract. Scott v. Asbury, Mo.App., 198 S.W. 1131; Corn v. McDowell, Mo.App., 185 S.W. 235; Bowers v. Bell, 193 Mo.App. 210, 182 S.W. 1068; Hart v. Riedel, Mo.App., 51 S.W.2d 891; Eggimann v. Houck, Mo.App., 240 S.W. 478; Meyer v. Dubinsky Realty Co., Mo.App., 133 S.W.2d 1106; Morris v. Mahn, ...