Willey v. Talkington
| Decision Date | 14 April 1958 |
| Docket Number | No. 2,No. 46278,46278,2 |
| Citation | 312 S.W.2d 77 |
| Parties | W. R. WILLEY and Mary A. Willey, Appellants, v. Hayes A. TALKINGTON and Kitty M. Talkington, and R. E. Wolfe and Mrs. R. E. Wolfe, Respondents |
| Court | Missouri Supreme Court |
Wm. G. Zimmerman, Kansas City, for appellants.
David Waldman, Kansas City, for respondents.
BOHLING, Commissioner.
This is a suit by plaintiffs, Mr. and Mrs. W. R. Willey, for (Count I) the specific performance of an alleged oral contract to purchase certain described land in Jackson County, Missouri, or, in the alternative, for (Count II) $20,000 damages for the breach of said agreement. The suit is against Mr. and Mrs. Hayes A. Talkington, who were the owners of said land and with whom plaintiffs allege they contracted for its purchase, and Mr. and Mrs. R. E. Wolfe, whom plaintiffs allege purchased said land from defendants Talkington with full notice of the rights of the plaintiffs. Separate motions of defendants Talkington and defendants Wolfe to dismiss plaintiffs' petition on the ground the alleged agreement between plaintiffs and defendants Talkington violated the provisions of the Statute of Frauds, was sustained and judgment was entered dismissing plaintiffs' petition and taxing the costs against plaintiffs. Plaintiffs appeal from the judgment.
The defendants have adopted the 'Statement of the Facts' in plaintiffs' brief, directing attention, however, that said statement fails to mention Count II of the petition. We quote plaintiffs' statement of their case:
'That in January, 1957, the plaintiffs Willey were informed that Talkingtons were selling the property to the codefendants R. E. Wolfe and wife, and plaintiffs immediately went to Talkingtons and reminded them of their agreement and told Talkingtons that they wanted to buy the property, and offered to buy the same, for the price and under the same terms contracted with the codefendants Wolfe; but Talkingtons refused to sell to them, and on January 30, 1957, had notice served on the plaintiffs Willey to vacate the premises on or before March 1, 1957.
'Plaintiffs thereafter brought this suit to enforce their right to purchase the land under their pre-emption agreement and to have the property conveyed to them, either by the owners Talkington, or the codefendants Wolfe as Trustees for Talkingtons under their contract of purchase.'
Plaintiffs seek the specific performance of an oral covenant of an oral lease to give plaintiffs the first opportunity to purchase the land should defendants Talkington decide to sell. This has been considered a right of pre-emption. Beets v. Tyler, 365 Mo. 895, 290 S.W.2d 76, 81.
The alleged agreement is within the Statute of Frauds (Sec. 432.010 RSMo 1949, V.A.M.S.) prohibiting the maintenance of actions for the sale of land unless the agreement be in writing. The statute, however, does not bar relief in equity where the agreement is oral if the suit falls within certain well established rules, which are stated in Walker v. Bohannan, 243 Mo. 119, 136, 147 S.W. 1024, 1028, and so far as material here read:
'The rules cover many phases; i. e., (1) the alleged oral contract must be clear, explicit, and definite; (2) it must be proven as pleaded; (3) such contract cannot be established by conversations either too ancient on the one hand, or too loose or casual upon the other; * * * (6) and the work constituting performance must be such as is referable solely to the contract sought to be enforced and not such as might be reasonably referable to some other and different contract * * *.'
Forrister v. Sullivan, 231 Mo. 345, 373, 132 S.W. 722, 730, stated specific performance of a parol contract to make a deed conveying real estate 'will not be enforced in specie except on certain high and stringent conditions--each a sine qua non,' and expressed rule '(6)' of Walker v. Bohannan, supra, thus: * * *'
We have stated there should be no further encroachments upon the statute than the rules already establish. Forrister...
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