699 S.W.2d 795 | Mo. Ct. App. | 1985
This interpleader action (Rule 52.07)
The “Purchase Offer and Deposit Receipt” form was signed by Benson and Bachelier in the latter part of October 1982, thus making it a contract. Inter alia, the contract provided “The seller shall, upon payment of the purchase price, convey the property ... free and clear of all liens and encumbrances except as follows: NONE.” According to the written agreement the total sale-purchase price of $133,000 was to be paid (1) $13,000 earnest money, (2) $37,-000 on closing and (3) the $89,000 balance was to be financed by the seller for a term of 15 years.
Albeit the contract specified a closing date of “on or before December 1, 1982,” and the payment of $37,000 “in cash or certified check on closing,” there was evidence that a Strout agent wrote on buyer Benson’s copy of the agreement “Closing Nov 22 — 2 p.m.” Bachelier denied knowledge of such a notation. When Benson arrived at Strout’s office November 22 with $37,000 for closing, she was told Bachelier was not ready to close. Benson did not
Under date of January 10, 1983, Bachelier wrote Strout that he understood Benson had decided not to close the deal and had, therefore, forfeited the $13,000 deposit which he expected to receive without delay. There is no indication a copy of this letter was sent to Benson or to counsel for either side. On January 12 and 27, 1983, Benson’s lawyer wrote Strout cancelling the sales agreement and demanding return of the $13,000 earnest money because “Bache-lier has been unable to deliver title free and clear as required by the real estate contract.” These letters were posted and Bachelier’s agent received them about one and a half months after the original closing date. After delivery of these letters neither Bachelier nor his agent did anything until mid-Pebruary 1983 (a month after Benson cancelled the contract) when Bache-lier, via his agent, offered to give clear title to the property at closing. At trial Strout’s branch manager agreed that up until mid-February 1983 Benson had never been informed of a day certain for closing the deal in accordance with the terms of the agreement and that in all the interim period between December 1, 1982, and until the mid-February 1983, offer, supra, Bachelier’s only attempts to conclude the transaction were by having Benson “assume the existing deeds of trust.”
Without being certain of the specific dates involved (the legal file and briefs received being most indefinite), the proposed wrap-around agreement was submitted to Benson’s attorney, considered and rejected. Both at trial and upon appeal Bachelier made and makes much fuss concerning the fact Benson never made actual tender or delivery of the $37,000 due on closing. However, this overlooks the fact that a tender is waived when the tenderee [here advocating a wrap-around deed of trust in lieu of title free and clear of all liens and encumbrances] takes and maintains any position which would render a tender a vain and idle ceremony. Miran Investment Co. v. Medical West Building Corp., 414 S.W.2d 297, 303-304[14] (Mo.1967); Owens v. Automobile Recovery Bureau, Inc., 544 S.W.2d 26, 31[2] (Mo.App.1976). If, as here, the contracted-for tender was due on closing and Bachelier was not ready, willing or able to close as specified in the contract but only in the noncontractual and unacceptable newly conceived procedure proffered by him, a tender by Benson would have been a vain and idle ceremony which was not a required rite so long as Bachelier’s extra-contractual position was maintained.
On appeal in this court-tried case we must sustain the judgment nisi unless it is against the weight of the evidence or unless the trial court erroneously declared or applied the law. Also, all issues are deemed to have been found in accordance with the results reached and the judgment is to be affirmed under any reasonable theory presented by the evidence. We are to accept as true all evidence and permissible inferences favorable to Benson and disregard any contradictory evidence. Osterberger v. Hites Const. Co., 599 S.W.2d 221, 225[1-3] (Mo.App.1980) and cases there cited. Furthermore, we must recall the rule that as trier of the facts, the trial court had leave to believe or disbelieve all, part or none of the testimony of any witness. Ozark Wood Industries v. First Nat. Bank of Doniphan, 625 S.W.2d 651, 653-654[7] (Mo.App.1981); Rule 73.01(c).
In his trial testimony Bachelier admitted he was aware the contract obligated him to convey the property free and clear of all liens and encumbrances. But even absent such admission, as a signatory to the agreement Bachelier is presumed to have known and accepted its terms. McDermott v. Burpo, 663 S.W.2d 256, 262[10] (Mo.App.1983). Nevertheless, when Bachelier executed the agreement he was fully aware the property was, in fact, subject to five deeds of trust. However, in spite of the clear wording of the contract and Bachelier’s admitted awareness thereof, he immediately instructed his lawyer “to prepare a wrap-around deed of trust” because “That is the way that I understood it was to be transferred.” [For an explanation of a wrap-around mortgage or deed of trust, see Olster v. Commissioner of Internal Revenue, 751 F.2d 1168, 1170 n. 2 (11th Cir.1985)]. To augment the foregoing that Bachelier only intended to convey the property subject to the five deeds of trust, are the allegations contained in his counterclaim against plaintiff Strout and which was ordered tried in a separate trial per Rule 66.02. In that counterclaim Bachelier sought damages against his agent for omitting to recite in the contract the property was subject to five deeds of trust and for preparing a contract which bound him to convey the property free and clear of all liens and encumbrances. Bachelier’s claim that Benson should not prevail because she did not tender the $37,-000 due on closing has no merit in view of his ceaseless efforts to convey subject to the deeds of trust and contrary to contract provisions. “The courts of Missouri unanimously announce the rule that ‘where failure of a party to perform a condition is induced by a manifestation to him by the other party that he will not substantially perform his own promise, performance of such condition is waived and, therefore, excused.’ ” Cooper v. Mayer, 312 S.W.2d 127, 130[2] (Mo.1958).
The two points relied on by Bachelier in this appeal are intermixed and have been dealt with above. Finding no error in the rulings of the trial court, its judgment is affirmed.
. Rule references are to Missouri Rules of Court, V.A.M.R.
. Since the parties’ intent as to the total purchase price and remaining balance is not an issue, we do not here attempt to resolve the inconsistencies as to these amounts.