515 S.W.2d 793 | Mo. Ct. App. | 1974
Appeal from judgment in an equity action denying plaintiff-appellant’s petition for contract rescission and granting defendant-respondent’s counterclaim for specific performance of a contract. We affirm the judgment.
Plaintiff filed suit against defendant seeking an order of court declaring that a certain contract for the sale of property by the plaintiff and her husband to defendant and her husband had been destroyed and rescinded. Defendant counterclaimed for a decree of specific performance of the contract. Judgment of the trial court was for defendant on plaintiff’s petition and defendant’s counter claim, and plaintiff was directed to specifically perform the terms of the contract. The issue on which the determination of this case rests is whether there is sufficient evidence to support the trial court’s judgment.
Plaintiff and her husband were parents of defendant’s husband. Both husbands were deceased at the time of trial. By contract dated September 14, 1968, plaintiff and her husband agreed to sell their 220 acre farm in Montgomery County, Missouri to defendant and her husband for $100 an acre and 4% interest on the unpaid balance to be paid in equal annual installments of $1,408.44. Duplicate originals of the contract were signed by the four parties (plaintiff and her husband; defendant and her husband.) Defendant and her husband farmed the 220 acres and made some permanent improvements thereon. Annual payments of $1,500 were made to plaintiff and her husband with each payment check bearing the word “rent.”
The trial court resolved conflicts in evidence in favor of defendant and thereby found the issues in favor of defendant on plaintiff’s petition and in favor of defendant on defendant’s counterclaim. The judgment of the trial court was that defendant was entitled to have the contract for the sale of the 220 acres specifically performed with defendant to make payments as required by the agreement and for plaintiff to execute and deliver to defendant a deed to the 220 acres upon defendant’s compliance with the terms of the contract.
Plaintiff charges that the trial court erred in granting specific performance of the contract for sale for the reason that it had been rescinded and that there was evidence to support the fact of rescission. Defendant counters that she had not authorized her husband to rescind the contract; that she had no knowledge of any purported rescission; and that, in fact, there had been continued performance of the contract by her and her husband.
Assuming arguendo that defendant’s husband agreed to a modification or rescission of the contract of sale, it is essential to plaintiff’s case to establish that defendant knew of and assented to the acts of her husband. The marital relationship alone is not sufficient to bind a wife to the action of her husband regarding an alteration or rescission of a contract. Rimer v. Hubbert, 439 S.W.2d 5, 7 (Mo.App.1969). It is clear that defendant was a party to the contract — her signature was affixed thereto. It is equally perspicuous that a conflict exists in the testimony of plaintiff and defendant as to whether there was a rescission of the contract by defendant’s husband or, if so, whether defendant ratified such rescission. In our review of this case, we are governed by Rule 73.01(d), V.A.M.R., and the tenet that we are not to set aside the judgment of the trial court unless clearly erroneous, giving due regard to the trial court’s opportunity to judge the credibility of the witnesses. We give deference to the trial court’s conclusions where there is conflict of testimony. Pittman v. Great American Life Ins. Co., 512 S.W.2d 857 (Mo.App.1974); In re Counts, 511 S.W.2d 923 (Mo.App.1974); Hawn v. Hawn, 505 S.W.2d 459 (Mo.App.1974). On the record before us we cannot say that the trial court was clearly erroneous in its determination of the case. Therefore, the judgment is affirmed.