Wussler v. Peterson
| Decision Date | 12 July 1954 |
| Docket Number | No. 2,No. 43993,43993,2 |
| Citation | 270 S.W.2d 12 |
| Parties | WUSSLER et ux. v. PETERSON et al |
| Court | Missouri Supreme Court |
William H. Becker, Scott O. Wright, Columbia, for appellants. Clark & Becker, Columbia, of counsel.
Ralph L. Alexander, Columbia, for respondents. Alexander, Ausmus, Harris & Welliver, Columbia, of counsel.
BARRETT, Commissioner.
In this action the plaintiffs, Urban and Evelyn Wussler, appeal from a judgment denying specific performance of a contract to convey real estate. In their petition the plaintiffs alleged that on the 5th day of July 1951 the defendants, Russell and Allegra Peterson, made a written offer to sell their property, stipulating that acceptance was to be made by the Wusslers drawing up a contract, signing the contract, and mailing it to the Petersons. The plaintiffs alleged that they accepted the offer on the 6th day of July by drawing up the contract, signing it and mailing it to the Petersons for signature, and that the offer by the Petersons and their acceptance constituted a binding contract. They alleged that in the meantime the Petersons sold the property to Mr. D. W. Irle and that he had actual knowledge of the Wusslers' contract and equitable title and, therefore, they sought to compel a conveyance of the property from Mr. Irle to them in accordance with the terms of their contract with the Petersons.
The facts were that Russell and Allegra Peterson were the owners, as tenants by the entirety, of a house and two-acre plot of ground known as Twin Acres. Probably because of a change in place of employment, the Petersons, in 1951, began giving some consideration to a sale of their property in Columbia. They discussed the subject with the Wusslers in June but, as the appellants say, 'nothing definite was agreed upon at that time by the parties about the sale of the property.' On June 19th the Petersons went to Mrs. Peterson's former home in Ruthton, Minnesota, on June 23rd Mr. Peterson went to Middlebury, Vermont, and Mrs. Peterson remained in Ruthton. On June 28th Mr. Wussler addressed a letter to Mr. Peterson in Ruthton, Minnesota, in which he said, In conclusion, he said, 'I do not know your present address so I am hoping this will be forwarded to you at your new home.' Mrs. Peterson thought that this letter arrived in Ruthton about July 5th. In any event, she opened the letter, read it, and forwarded it to her husband, including a personal letter, in Middlebury. In a letter, relied upon by the plaintiffs as the offer, dated July 5th, Middlebury, Vermont, Mr. Peterson wrote to Mr. Wussler in Columbia. In part he said, Mr. Peterson mailed a copy of this letter to his wife in Ruthton. Upon receipt of Mr. Peterson's letter Mr. Wussler had his attorney prepare a contract, dated July 10, 1951, for the purchase of Twin Acres. Mr. and Mrs. Wussler signed the contract and mailed it, together with a letter of transmittal and a check for $150, to Mr. Peterson in Vermont. The preparation and signing of the contract by the Wusslers, the check and letter of transmittal, and the proper mailing of them in Columbia on the 10th day of July is the acceptance relied upon as completing a valid, binding contract for the sale of the property.
Sometime in June Mr. Peterson had listed his property with the Spragg Real Estate Company, and on July 9th that company sent a telegram to Mr. Peterson in Ruthton stating that the company had a cash offer of $3,250 for Twin Acres and Upon receipt of the telegram Mrs. Peterson, on July 9th, wrote to Mr. Wussler: Mr. Wussler says that he received this letter on the 11th day of July, the day after he had mailed his contract to Mr. Peterson in Middlebury. On July 10th the Spragg Real Estate Company prepared and Mr. Irle signed a contract to purchase Twin Acres and paid Spragg $325 on the purchase price. That contract was mailed to Mr. and Mrs. Peterson in Ruthton on July 10th, Mrs. Peterson inserted a clause in the contract, 'Trailer house is reserved,' signed the contract on July 14th and on July 19th Mr. Irle was given a warranty deed to Twin Acres and paid the balance of the purchase price.
Upon learning, through a Spragg Real Estate Company advertisement in a newspaper on July 13th or 14th, of the sale to Mr. Irle, Mr. Wussler sent a telegram to Mr. Peterson, 'Please wire collect your intention regarding our contract.' Upon receipt of Mrs. Peterson's letter informing him of the sale, he wired Mr. Peterson in Vermont, On July 15th Mr. Wussler called on Mr. Irle and informed him that he had a contract with the Petersons to purchase Twin Acres. Thereafter lawyers representing the parties handled their correspondence and finally this suit followed.
As indicated, Mr. and Mrs. Wussler did not have a written agreement for the sale of Twin Acres signed by either Mr. or Mrs. Peterson as required by the statute of frauds. V.A.M.S. Sec. 432.010. And so, of necessity, they rely upon the prior written negotiations between the parties as composing the completed contract. Specifically, they rely upon Mr. Peterson's letter of July 5, 1951, to Mr. Wussler as the offer and the contract signed by them, together with the check and letter of transmittal on July 10th as the acceptance of the offer, all the documents composing a present binding contract sufficient to satisfy the statute of frauds, the contemplated written contract, to be executed in the future, constituting a convenient memorial or mere record of the contract. Priest v. Oehler, 328 Mo. 590, 41 S.W.2d 783; Green v. Cole, 103 Mo. 70, 77, 15 S.W. 317. In short, upon the essential merits of their cause of action, the plaintiffs rely upon the rule that 'Mutual manifestations of assent that are in themselves sufficient to make a contract will not be prevented from so operating by the mere fact that the parties also manifest an intention to prepare and adopt a written memorial thereof; but other facts may show that the manifestations are merely preliminary expressions as stated in Sec. 25.' Restatement, Contracts, Secs. 26, 19, 20, 24, 25. In order to certainly establish a contract prior to the Petersons' contract with Mr. Irle, they contend that the contract became final and complete upon their acceptance, manifested by the proper mailing of the contract, check and letter in Columbia on July 10th. 12 Am.Jur., Sec. 46, p. 538; 17 C.J.S., Contracts, Sec. 52, p. 400; 31 C.J.S., Evidence, Sec. 136, p. 777. In relying upon the prior negotiations, all with Mr. Peterson, as comprising the completed...
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...of an agent in a 'contract for the sale of lands' to be in writing. Johnson v. Fecht, 185 Mo. 335, 83 S.W. 1077, 1079; Wussler v. Peterson, Mo., 270 S.W.2d 12; Hunt v. U. S. Fire Insurance Co. of New York, 239 Mo.App. 625, 193 S.W.2d 778; State ex rel. Sears, Roebuck & Co. v. Haid, 332 Mo. ......
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