Cornwell v. Zieber

599 S.W.2d 22, 1980 Mo. App. LEXIS 3002
CourtMissouri Court of Appeals
DecidedApril 7, 1980
DocketNo. WD 30624
StatusPublished
Cited by4 cases

This text of 599 S.W.2d 22 (Cornwell v. Zieber) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cornwell v. Zieber, 599 S.W.2d 22, 1980 Mo. App. LEXIS 3002 (Mo. Ct. App. 1980).

Opinion

TURNAGE, Presiding Judge.

Betty Cornwell brought suit for specific performance of a real estate contract. She appeals from a summary judgment entered against her. On this appeal she contends the court erred in entering summary judgment because a release signed by her was not valid or binding; the release was not supported by consideration; and the release was signed because of a mutual mistake of fact. Affirmed.

On April 18,1978, Kenneth Zieber and his wife Shirley entered into a real estate contract whereby they agreed to sell a lot upon which a house was located to Cornwell. The contract contained a number of paragraphs in printing under the general heading of “Financing Agreements.” One of the paragraphs provided the contract was made subject to the buyer’s ability to obtain a loan. Blanks in the printed paragraph provided space for the amount of the loan, the interest rate and the time within which the loan would be obtained to be inserted. The last sentence of this paragraph read: “If the buyer is unable to obtain such loan within _ days hereof, then this contract shall be null and void and the earnest money deposited shall be returned to the buyer.” The blank for the number of days within which the loan was to be obtained was completed by inserting “60.” A later paragraph provided for the closing of the sale with blanks left for the place and date on which the closing was to take place. The blanks were filled in to provide the sale would be closed on June 1, 1978, at 2:00 P.M.

It is apparent there is an inconsistency between the provision which allowed the buyer 60 days from April 18 to obtain a loan and the provision that the sale would be closed on June 1, a time less than 60 days from the date of the contract.

Cornwell filed a petition for specific performance of the contract and attached a copy thereof and made it a part of the petition. The petition alleged a $100 down-payment had been paid, that Cornwell had obtained a commitment for a loan on June 2, 1978, consistent with the contract provision allowing her to obtain financing, but that the Ziebers had refused to accept payment of the contract or to perform the same.

The Ziebers responded by filing a motion to dismiss upon the grounds the petition failed to state a claim upon which relief could be granted. Suggestions filed in support of the motion revealed the Ziebers’ position to be that the contract provided the [24]*24sale was to be closed on June 1, at 2:00 P.M., and since Cornwell did not allege she had obtained financing until June 2, she was in default for failure to close on the day specified.

Thereafter, the Ziebers filed a request for admissions and attached thereto Exhibit A. Exhibit A read as follows:

RELEASE
We, the buyer and sellers of the property located at 11804 Fuller, Kansas City, Missouri, hereby release each other and Peoples Choice Realty, Inc. from any further liability on the contract dated April 18, 1978, on the above property.
The sellers hereby authorize Peoples Choice Realty, Inc. to release the $100.00 earnest deposit to the buyer and buyer hereby acknowledges receipt of the $100.00 earnest deposit, and contract is hereby null and void.
/s/ Bettv L. Cornwell /s/ Kenneth C. Zieber
Betty L. Cornwell Kenneth E. Zieber
/a/ Shirley Zieher
Shirley Zieber
B/16/7B 6/5/7B
Date Date

The request was for Cornwell to admit that Exhibit A was a photocopy of an original document identical to the copy attached and that the signature of Cornwell appears on the original copy. The request further requested that Cornwell admit that she, as the plaintiff in the suit against the Ziebers, was the same person who signed Exhibit A. It further called for her to admit that she had received a $100 check from Peoples Choice Realty, Inc., the real estate agent involved in the contract, and had cashed the same. In response to the request for admissions, Cornwell admitted that her signature appeared on the original copy of Exhibit A and that she is the same person as the plaintiff in the pending lawsuit. Cornwell also admitted all other requests.

After the admissions were filed by Corn-well, the Ziebers filed a motion for summary judgment and the court sustained such motion.

Cornwell now contends the document entitled “Release” was not valid nor legally binding and argues the writing is too scant and the parties are designated in an unusual manner. It is well settled that no particular form of words is required to constitute a contract, but all that is required is a manifestation of the intentions of the parties. Guhl v. Guhl, 376 Ill. 100, 33 N.E.2d 185, 189[7-10] (1941). Here the writing is sufficient to express the intent of the parties that they were releasing each other and Peoples Choice Realty from any further liability on the contract dated April 18, and the Ziebers were authorizing the real estate agent to release the downpayment to Cornwell and that the contract was considered to be null and void. Cornwell does not point out any specific insufficiency of the writing. The writing set out above as Exhibit A was sufficient to constitute an agreement between the parties.

Before taking up the remaining points, additional facts must be noted. The Zie-bers filed affidavits in support of their motion for summary judgment executed by Sandra Christian, the office manager of Peoples Choice Realty, Inc., and the Ziebers. All of these affidavits stated the release had been executed by all the parties and the affidavit of Christian stated that she had given Cornwell a check in the amount of $100 drawn on the Realty Company on June 10, and that such check had been negotiated by Cornwell and had been paid by the bank on which it was drawn. Cornwell did not file any affidavits nor suggest to the court that any facts were in dispute. “Summary judgment is proper where the issue to be resolved is the construction of a contract which is unequivocal on its face.” Ira E. Berry, Inc. v. American States Ins. Co., 563 S.W.2d 514, 516[5, 6] (Mo.App.1978). Also, if “the proof of release was ‘altogether of a documentary nature and the authenticity and correctness of the documents are unquestioned,’ Fulton v. Bailey, supra, the issue is one of law for the court and not the jury.” Scott v. Thornton, 484 S.W.2d 312, 314[2-4] (Mo.1972). Cornwell admitted she signed the release and raised no question of fact concerning its content or execution. This meant there was only an issue of law for the court of whether the release defeated the action for specific performance.

[25]*25Further, the court had before it the original contract and the subsequent contract headed “Release.” The words in both agreements are plain and the meaning of such words are generally understood. In this circumstance the construction of the two agreements was for the court and not a jury. O’Donnell v. Epstein, 280 S.W.2d 462, 465[2] (Mo.App.1955).

To avoid summary judgment a genuine issue of fact must appear. Berry, supra,

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Bluebook (online)
599 S.W.2d 22, 1980 Mo. App. LEXIS 3002, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cornwell-v-zieber-moctapp-1980.