227 S.W.2d 69 | Mo. Ct. App. | 1950
The respondent, owner of a grocery store in Moberly, Missouri, brought this action to recover $1000, represented' by the check of the appellant in that amount alleged, to have been given by appellant as earnest money and as part payment on a contract to purchase the store and merchandise therein, on which check appellant stopped payment and, it is claimed, repudiated the purchase contract. Punitive damages were also sought by the petition, but not submitted to the jury. Judgment was for the plaintiff for $1000, with interest. The defendant appealed.
The respondent and the appellant will, for convenience, be hereinafter referred to, respectively, as the'plaintiff and the defendant.
The plaintiff’s petition alleges that plaintiff and defendant, on March 30, 1948, entered into a contract in writing whereby plaintiff agreed to sell and defendant agreed to buy the grocery business, good will and fixtures owned by plaintiff at Moberly, Missouri, for $8000, and the stock on hand therein at cost price; that at the time it was also agreed that defendant would pay to plaintiff $1000 “as earnest money and as a part of the $8000 purchase price, and as evidence of good faith in making said agreement, and as evidence of his willingness and intention to complete said agreement”; that thereupon defendant did give to plaintiff a cheek for $1000 to be applied on the purchase price aforesaid, the balance of the $8000 to be paid the next day, March 31, 1948, and "that the stock of merchandise was to be thereupon inventoried and turned over to the defendant at cost;' that
The defendant filed a motion, to dismiss the petition because of insufficiency of the facts pleaded. The motion was overruled.
The answer challenges the sufficiency of the petition to state a cause of action; admits the giving of the check described, and the stopping of payment thereof; avers that it was wholly without consideration; that it constituted no payment for any of the purposes alleged in the petition; denies that there was any agreement in writing signed by the parties; avers that plaintiff had fraudulently represented to defendant that plaintiff’s employees in the Moberly store would remain on their jobs for at least 60 days from April 1, 1948, although he knew that they would quit their employment about that date; that defendant relied on said misrepresentation to his detriment, and was thus induced to enter into the alleged contract and to make and deliver said check; that he would otherwise not have made such arrangement or issued said check, as plaintiff well knew; that defendant elected to declare the agreement canceled bv reason of the fraud; that he has demanded a return of the check, but plaintiff has refused; that if there were any such agreement, as alleged, it was mutually rescinded; that the alleged contract stipulated that plaintiff’s employees would remain and plaintiff was unable to perform that condition precedent, which was of the essence of the contract, thus permitting rescission. The other allegations of the petition were generally denied.
On account of the points here made it is necessary to set forth with a considerable decree of particularity the evidence produced. The plaintiff testified that he was the owner and operator of a grocery store in Columbia, and also owned a grocery store in Moberly, Missouri ; that for some time prior to March 30, 1948, he had been negotiating with defendant for the sale of the Moberly store; that late in the afternoon of March 30, 1948, the defendant made him a counter offer of $8000 for the Moberly store, plus the cost of the stock on hand on inventory; that thereupon the parties went to the office of the defendant’s brother-in-law, an attorney in Columbia, to have
Plaintiff further testified that defendant called him early the next morning and said: “I have hit a snag”, and asked plaintiff,to come a little early to the attorney’s office. When the attorney arrived, defendant again stated: “I have hit a snag”. The defendant stated that his wife objected to the purchase; that she thought the defendant was working too hard and she would not consent to his taking on any more business. The attorney suggested that defendant take a few days to talk to her and see if she would not change her mind. It was then
Plaintiff testified that he was never asked to return the check to defendant at any time; that after the last conference at the attorney’s office when he left with the understanding that defendant wanted to “pacify” his wife with the deal, plaintiff went to his own bank and deposited the check in the usual course of business; that he had not been told the payment had been stopped on the check and.did not know it until he was notified by his bank later that the check had been returned because payment had been stopped. Plaintiff called the defendant, and defendant said it was “best that way”, “the way things were ’ ’, and plaintiff said he was going to put the check through again and would expect it to be good “this'time”, and defendant replied: “Wait a few days”. Later plaintiff called defendant, who said: “You send the check back through and it will be all right”. Again the check was returned to the plaintiff, whereupon he took it to the plaintiff’s bank and presented it in person, and payment was again refused. He again called defendant, who told him: “He would see me in hell before he would pay the check”. '
Upon cross-examination plaintiff said the manager of his Moberly store was a trusted employee, though he would not call him a valuable asset to the business of the store; that the manager, had talked some of buying the store, but told him he wished to go into the beer business, but would not leave until it was convenient to the plaintiff; that another employee had quit him; that he discharged another employee on June 26, 1948; that another employee quit nine months after the transaction with defendant; that, two other employees — Ed and Wilbur Short — quit April 3; 1948, the latter having been with hiin for nearly two years; that a meat cutter and another had quit in March of that year. Plaintiff further‘stated: “I accepted the money as part payment and I was bound by the'contract for which this money was given, and I understood the contract to be binding, and part payment on the fixtures, and I accepted it that way”. He was asked if he had intended to give defendant credit for the $1000 when he received the check, or to credit it when he cashed the check. He answered: “I received that thousand dollars as a'thousand dollars, the same as I would have received a thousand dollar bill. * • * * I
The cashier of defendant’s bank testified that he had told defendant he could arrange $8000 to be available to defendant to make the purchase. He said at 8:00 o’clock on the morning after the check, was made, defendant called him at the bank or at his home and ordered the payment to be stopped. Another witness said defendant asked him about March 29th, and' previously, if he would work for him as manager of the Moberly store; that defendant was interested in buying it; that defendant offered terms for such employment; that witness was not able to get permission from his superiors at St. Louis to take the new positioii. 'He said he so reported to defendant on April 1st and defendant told him-he had bought the store on an offer “so ridiculous” that he did not “think plaintiff would accept, but be did”. Defendant did not say anything about having any difficulty in finding employees to work for him in the Moberly store.
Certain parts of defendant’s deposition were introduced, wherein he had testified that after he had explained the terms of the agreement, the attorney had made a memorandum on the back of a blank check ; that the parties did not sign the papers; that he signed the $1000 check and gave it -to the plaintiff during the conference; that he had arranged with his bank for cash to finance the deal; that the following morning he stopped payment of the cheek, telling the bank that certain things had come up and he thought it not advisable to complete the deal; that to finance the deal “was possibly a $20,000 arrangement”.
The 'defendant, owner of several grocery stores in Columbia, testified of the extended negotiations between the parties for the purchase of the store; that plaintiff' first asked $12,500, plus the stock at cost; that he and his wife went to Moberly and saw the store;
Defendant further testified that he told his wife of the transaction the evening of March 30th and she said defendant already had too much business to take care of; that she would have to go back to business and that, from a woman’s intuition, she felt something was wrong with the deal when a man would come down from $12,000 to $8,000 in a few hours. He said that when he went to the attorney’s office the next morning he did not intend to sign the contract and so. stated, because he had found out that plaintiff’s manager and several other employees were going to leave, and on account of his wife’s health it was not advisable to go on; that the attorney had ’phoned him after the conference, about midnight, that plaintiff’s manager and several other employees at Moberly were going to leave. Defendant said that the plaintiff remarked the next morning that defendant’s home life came first; that he was selling the store too
Defendant denied that he intended plaintiff to keep the cheek and that there was ever anything said about any exchange of money if the deal did not go through; that at the conference at the attorney’s office on March 30th he mentioned that his wife was his partner in the business and her signature would be required on the loan at- the bank and on “the note for $8000 that we were to give Mr. Martin that he would carry back”; that she was to sign the contract for the store when written up, and the plaintiff was so advised; that when he gave the cheek he told plaintiff he would have to give him a proper check on the firm name for the Moberly store on such account to be opened the next day.
On cross-examination defendant testified that when he negotiated for the store he was acting for the partnership of himself and wife, and intended to bind both; that either was authorized to draw a check on the business account. When asked why he did not tell plaintiff on the morning of March 31st at the attorney’s office that he had just stopped payment on the check he said: 1 ‘ There was no reason for it”. He said he did tell plaintiff he would not pay the check when plaintiff called him after the check returned, but denied saying he would see plaintiff “in hell first”. He said he had tried to get a manager for the store because plaintiff had told him-he might not like plaintiff’s manager, but that the present manager would stay as long as plaintiff told him to. He said, relying on the message that some of plaintiff’s employees were going to quit, he determined to stop payment on the check and call off the agreement. He said whatever obligations he incurred with plaintiff were also his wife’s.
Plaintiff’s former manager, a witness for defendant, testified that he had worked for the plaintiff about two years before March 31, 1948; that he had talked to plaintiff about buying the store 45 or 60 days before April 1, 1948. ■ He gave plaintiff notice he would quit on that date in order to go into the wholesale beer business; that one Haddock had quit two weeks before, and the brother of witness and
The secretary of the attorney mentioned, testified that on the morning of March 31st, she saw some notations he had made on a piece of paper, and saw him crumple it up and throw it in the wastebasket.
On rebuttal, the witness whom defendant said he had asked to manage the Moborly store and who had declined the offer, testified that on April 1st, defendant told him he had bought the store; that since the suit was filed defendant told him he was going to use the defense that there was no contract, and that some time later he told him he was going to admit there* was a contract, but was going to defend on the ground that some of plaintiff’s employees quit; that defendant told him he had never made any contract with plaintiff.
Plaintiff, being recalled, said he had had about 15 employees in the store at Moberly; that his manager quit April 3rd, and had told 'plaintiff of such intention, and that witness had so informed the defendant; that the manager was going into the beer business and his brother quit with him; that a delivery boy quit June 26th. He denied ever telling the defendant that any of his employees would continue in his employ. He denied the conversations with defendant about letting him have a truck for the $1000 check. He said either one of the trucks was then worth considerably more, and that the truck had nothing to do with the $1000 check.
At the close of all the evidence, defendant moved for a directed verdict on the ground of insufficient facts alleged in the petition to warrant the relief asked, and the insufficiency of the evidence to warrant a verdict for the plaintiff. The motion was overruled. . ,
Defendant’s points are (1) that the court erred in overruling defendant’s motion to dismiss the petition for failure to allege a forfeiture or an agreement for liquidated damages or any actual damages, delivery or tender of the goods, ability and willingness of plaintiff to perform, or a breach by the defendant; (2) that the court erred in not sustaining defendant’s motion for a directed verdict on the grounds that forfeiture or liquidated damages were not pleaded or proved; that the check was not a payment until cashed, and was not a consideration for the alleged contract, and there was no evidence that warranted a recovery of $1000; that plaintiff’s evidence shows he.retained and operated the store and later sold it to third parties, treating the transaction as abandoned and rescinded, and his only remedy is for damages; there was no proof of damages; there is no proof that plaintiff offered to perform his part of the alleged contract, or to deliver the goods, but before trial, sold the store to others; (3) the court erred in giving plaintiff’s Tnstruetion “P-1” and in refusing defendant’s Instructions “D-5” and “D-6”.
As to the proof of the essential facts pleaded, raised by the defendant’s motion for a directed verdict, we look to plaintiff’s evidence most favorable to him, and to such of the defendant’s evidence as may tend to establish the plaintiff’s case. There was substantial
Defendant contends that under the evidence the plaintiff must be held to have abandoned and rescinded the alleged contract because he later sold the store to a third person. The plaintiff sold the store to a third person eleven months after the transaction with the defendant. When a buyer refuses to conclude a contract of sale and repudiates it without fault on the seller’s part, under the circumstances here shown the seller may treat the, contract as at an end and may retain the property. In a cash sale, delivery and payment are concurrent, and without the payment, the title does not pass unless there is a waiver or laches on the seller’s part. Commercial Credit Co. v. Interstate Securities Co., 197 S. W. 2d 1000, 1005. Plaintiff’s later resale of the property did not affect his action for payment of the check for the earnest money. 55 C. J. p. 1025.
■ Defendant’s third point is that “the court erred in giving to the jury respondent’s Instruction ‘P-1’ ”. No grounds are assigned, the point is not directly argued in the brief, and, therefore, we are not required to consider it. Petty v. Nansas City Public Service Co., 355 Mo. 824.
Defendant’s fourth point is that the court erred in refusing to give defendant’s Instruction “D-5” on the grounds that plaintiff’s case was based on a written contract, and if entitled to recover at all, it was upon the terms and conditions of the specific contract, and then only after he alleged and proved a written contract, a breach thereof, and actual damages resulting therefrom. That instruction would have told the jury that in order to recover, plaintiff had the burden to prove that the contract was in writing; that defendant failed and refused to perform his part of it, and that because of the breach, plaintiff sustained actual damages. The court had already given defendant’s- Instruction “D-l” to the effect that if the jury found that a written contract was never actually executed by the parties, that the plaintiff could not recover. By plaintiff’s Instruction “P-1”, a verdict for the plaintiff was conditioned among other things, upon the finding by the jury that the defendant had stopped payment on the -cheek, given as earnest money, and to apply on the purchase
Defendant’s fifth point is that the court erred in refusing his Im struction “D-6” for the reason that there was no allegation or proof of a forfeiture or liquidated damages, and it was plaintiff’s burden to prove actual breach of a written contract, as well as actual damages resulting therefrom. The requested instruction required the jury to find in favor of defendant, unless they found that a written contract was entered into by the parties, breached by the defendant, and actual damages thereby sustained because of such breach, and, further, that the check for $1000 could not be considered as a measure of damages unless actual damages were sustained. The matters raised by this instruction, so far as they were applicable under the law to this case, were fully covered by other instructions given. . ■ .
Finding no error in the trial of this cause, materially affecting the merits, the judgment should be. affirmed. It is so ordered.