Opinion
No. 42372.
January 14, 1952. Motion for Rehearing or to Transfer to Court En Banc Denied February 11, 1952.
Elmer E. Hall, Kansas City, for appellants.
Harry S. Davis, Kansas City, for respondent.
Eugene P. Grose and Marceas J. Grose, his wife, instituted this suit against Imogene M. Lucas for the specific performance of a contract to sell and convey certain described real estate, approximately five acres, in Independence, Jackson County, Missouri. Plaintiffs appeal from a decree in favor of the defendant.
Finley I. Lucas, defendant's husband, had owned the land for many years. He conveyed it to Mrs. Lucas several years prior to the contract here involved. Mr. Lucas listed the property with Campbell Realty Company on October 3, 1949, asking $5,000 for it. The property was advertised and, upon inquiry, plaintiffs were informed it was for sale at $5,000. Mr. Lucas was critically ill at Research hospital in Kansas City, and he and defendant were in need of money. After several days, Mrs. Lucas asked the Realty Company to try to secure an offer. Mr. Grose then offered $3,000 and Mrs. Lucas stated she would sell at that price for "all cash." A contract was prepared by the Realty Company and taken to the hospital where Mr. and Mrs. Lucas signed it, Mr. Lucas executing the contract by his "mark." At the suggestion of Mr. Campbell they had Mr. Lucas, on account of his condition, execute a deed at that time. Mr. Lucas died March 18, 1950.
The contract is dated December 27, 1949. Mr. and Mrs. Lucas, as "sellers" agreed to sell and convey to plaintiffs, as "buyers" the described real estate for $3,000; receipt of $200 being acknowledged as on deposit with the Realty Company, and $2,800 cash to be paid on delivery of the deed. The sellers were to pay all taxes and assessments which were a lien against the real estate.
The sellers were to deliver, "within ten days," to the buyers an abstract of title, with certificates as to taxes, et cetera, affecting the property; and the contract further provided: "The buyers shall have ten days after such delivery of abstract to examine the same.
"If the title be good, the sellers shall deliver for the buyers at the office of said Campbell Realty Co. Warranty Deed, properly executed and conveying said property free and clear from all liens and encumbrances whatsoever, except as herein provided; the buyers shall then and there pay the balance, if any, of said cash payment. * * *.
"If the title is defective, the buyers shall specify the objections in writing and deliver the same to or for the sellers at the office of the Campbell Realty Co. within ten days after such delivery of the abstract, * * * [and the sellers were to correct the defects within thirty days; but if the defects could not be corrected within that time, the contract was to be null and void, with the deposit and the abstract returned to the respective parties.]
"If the sellers have kept their part of this contract, by furnishing good title as herein provided, and the buyers fail to comply with the requirements within five days thereafter, then the money deposited as aforesaid shall be forfeited by the buyers, and this contract may or may not be thereafter operative, at the option of the sellers.
"Time is of the essence of this contract."
Three witnesses testified; Mr. Grose and Mr. Martin of the Realty Company for plaintiffs, and Mrs. Lucas, defendant. We state the substance of their testimony.
Defendant could not find an abstract to the property. There was a delay in preparing a new abstract and taking care of a missing deed. The abstract was delivered to plaintiffs on April 3rd or 4th, 1950. The plaintiffs waived this delay in the receipt of the abstract and accepted it.
Mr. Grose looked the abstract over and thought the title was all right; but plaintiffs wanted their attorney to examine it. Upon calling his office two days later, they were informed the attorney had been injured in an automobile accident, and were later informed he had gone to Rochester, Minnesota, for an examination at the Mayo clinic. They did not attempt to employ another attorney. When their attorney returned, they delivered the abstract to him, the date is not stated, and they received a letter dated May 3, 1950, from defendant's attorney.
The letter of May 3, 1950, stated it was notice that Mrs. Lucas had elected to and did declare the contract null and void, and directed attention to the covenants under which plaintiffs had ten days to examine the abstract and furnish the seller with their objections in writing, if any, which had not been done. The letter also requested the return of the abstract, and stated the $200 deposit would be refunded by the Campbell Realty Company as Mrs. Lucas had elected not to forfeit it.
Mrs. Lucas' creditors were pushing her, and she was in urgent need of cash. Mr. Grose, as well as Mrs. Lucas, testified there never had been any modification or any waiver of any provision of the contract by defendant.
Mrs. Lucas testified she told Mr. Martin of the Realty Company to "hurry" closing the transaction, she needed the money as soon as she could get it and was ready to sign the deed; that about April 15, 1950, she told him plaintiffs had had ten days in which to examine the abstract and the time was up; that she had to have her money, wanted it at once, was ready to sign the deed, and if she did not receive the money at that time the deal was off; that after she considered the contract with plaintiffs at a close she received some better offers for the property but none was accepted; that she consulted an attorney sometime in April, asking him to protect her rights, and the letter, dated May 3, 1950, notifying plaintiffs the contract was void, was written.
Mr. Martin, plaintiffs' witness, corroborated some of the facts hereinabove set forth. He testified Mrs. Lucas told him when the abstract was delivered she was anxious to get the money because she needed it badly; that Mr. Grose told him about his attorney being injured and not able to examine the abstract and he would have to wait until the attorney examined the abstract, told him in April he could not complete the deal because his attorney had not examined the title; that Mrs. Lucas talked to him one day about "settling up," which could or could not have been April 15 or 16, 1950.
The plaintiffs did not specify any objections to the abstract or give notice that the title had been found good or otherwise, or tender the $2,800 balance due. They instituted this suit on May 20, 1950, tendering performance on their part, and asking that defendant be required to accept the $3,000 in cash and execute and deliver her deed to the plaintiffs.
We think the evidence preponderates in favor of the defendant and sustains the decree of the trial court.
The evidence established that defendant was insisting upon receiving the purchase price as soon as possible, and plaintiffs' as well as defendant's evidence was that there had been no modification or waiver of any contract provision by defendant. The facts of the instant case distinguish it from plaintiffs' cases wherein there were acts or acknowledgments establishing a waiver of the time for performance; viz.: Kyner v. Bryant, 353 Mo. 1212, 1218, 187 S.W.2d 202, 206; Metz v. Wright, 116 Mo. App. 631, 648, 649, 92 S.W. 1425, 1129, 1130; St. Clair v. Hellweg, 173 Mo.App. 660, 668, 159 S.W. 17, 19; McAlister v. St. Joseph Street Const. Co., Mo.Sup., 181 S.W. 54; Otto v. Young, 227 Mo. 193, 212, 127 S.W. 9, 16; Melton v. Smith, 65 Mo. 315, 322(III).
The contract provided, among other things, "if the title be good" for the vendor to deliver her deed and the vendees to "then and there" pay the balance due under the contract. If the title were defective and the vendees specified their objections in writing "within ten days" after delivery of the abstract, vendor was to have thirty days in which to rectify the defects. If the vendor kept her part of the contract by furnishing a good title and the vendees failed to comply with the contract within five days thereafter, the vendees' $200 deposit was to be forfeited and the vendor could continue or terminate the contract. We think the promises to convey and to pay were mutual and dependent, "dependent and concurrent" as stated by plaintiffs, to the end that the vendor was to tender a deed so the vendee upon payment could receive the deed, and that the vendee was to tender payment so the vendor upon delivery of the deed could receive the payment. The plaintiffs never specified in writing within ten days after delivery of the abstract any objections to defendant's title or notified defendant that the title was good or tendered payment of the balance due on the purchase price or tendered performance prior to notice of cancellation or suit; and defendant did not deliver or tender her deed under the contract. The evidence justified a finding that plaintiffs were refusing performance until receipt of their attorney's opinion on the title. Had defendant deposited her deed with the Realty Company, plaintiffs' failure to timely perform would have justified the restitution of that performance.
Plaintiffs are seeking the affirmative relief of specific performance and defendant interposes plaintiffs' failure to timely perform as a defense thereto. Time was of the essence of the contract. There was evidence bringing the facts within the case of Wimer v. Wagner, 323 Mo. 1156, 1167, 20 S.W.2d 650, 653[6], 79 A.L.R. 1231, to-wit: "Appellants stress and seek to apply to the vendor the principle that a party to a contract must be free from default in essential particulars, if he would avail himself of a breach committed by the other party — the same rule of which they have run afoul. But that doctrine has reference to claims affirmatively asserted by a complaining obligee, founded on the contract, and not to mere defenses interposed by the obligor in the nature of a bar, absent facts creating a waiver or estoppel. A defendant, though himself delinquent, may thwart the plaintiff's action by showing the latter has not complied with the agreement, although, if the controversy were turned around, and the defendant were complaining, he might be in the same fix. When both parties are in default, neither has a cause of action against the other." The foregoing is quoted with approval and applied in the later case of Suhre v. Busch, 343 Mo. 170, 189, 195, 120 S.W.2d 47, 55[6, 7], 59.
With the evidence sustaining a finding that the vendor did not waive any provision of the contract, the instant record does not establish facts excusing a tender by the vendee. We quote Suhre v. Busch, 343 Mo. 170, 188, 120 S.W.2d 47, 54[3]: "Even in the case of a bilateral contract, when time is of the essence of the contract as to performance, it is necessary for the purchaser `to tender performance within the time required by their agreement' in order to be `entitled to the aid of a court of equity, unless there be something in the facts to take the case out of the usual rule.' Wimer v. Wagner, 323 Mo. 1156 [1167], 20 S.W.2d 650, 653 [654(9)]."
In addition to the authorities cited in the Wimer and Suhre cases, supra, several of plaintiffs' cases recognize the applicability of said principle of law in appropriate instances. See, for instance: Curtis v. Sexton, 142 Mo.App. 179, 186, 187, 125 S.W. 806, 808; Jose v. Aufderheide, 222 Mo.App. 524, 529, 530, 531, 293 S.W. 476, 479[4, 5, 10]; Kyner v. Bryant, 353 Mo. 1212, 1217 [2], 187 S.W.2d 202, 205[2]. Note also the comments in plaintiffs' case of St. Clair v. Hellweg, 173 Mo.App. loc. cit. 667, 159 S.W. loc. cit. 18, 19, with respect to promptness on the part of the vendee in the examination of the abstract. Consult Kentucky Distillers Warehouse Co. v. Warwick Co., 6 Cir., 109 F. 280, 285, 48 C.C.A. 363; Heuer v. Rutkowski, 18 Mo. 216; 4 Pomeroy, Equity Jurisprudence, 1052, § 1407a, 3.
What we have said disposes of the case. The judgment and decree was for the right party under the evidence, and is affirmed.
WESTHUES and BARRETT, CC., concur.
The foregoing opinion by BOHLING, C., is adopted as the opinion of the court.
All concur.