I.R. Kirk Farms, Inc. v. Pointer

897 S.W.2d 183, 1995 Mo. App. LEXIS 743, 1995 WL 226754
CourtMissouri Court of Appeals
DecidedApril 18, 1995
DocketNo. WD 49973
StatusPublished
Cited by6 cases

This text of 897 S.W.2d 183 (I.R. Kirk Farms, Inc. v. Pointer) 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
I.R. Kirk Farms, Inc. v. Pointer, 897 S.W.2d 183, 1995 Mo. App. LEXIS 743, 1995 WL 226754 (Mo. Ct. App. 1995).

Opinion

LOWENSTEIN, Judge.

Kirk Farms (Kirk) appeals trial court’s grant of summary judgment in favor of the defendants, Pointer, et al., (Investors) in a breach of contract action.

The facts of the ease are as follows:

Kirk is a small, closely held corporation owned by the Kirk family. In March of 1980, Kirk executed a promissory note to Equitable Life Assurance Society in the amount of $700,000. Kirk secured the loan with property (farm) located in Platte County, pursuant to a deed of trust. Kirk both occupied and worked the farm, which had been in the Kirk family for some time.

In early 1988, Kirk defaulted on the promissory note. One of the defendants, W.L. Pointer (Investor), approached Kirk with a proposal for an agreement which would eventually allow Kirk to repurchase the farm from Investors. Under the terms of the repurchase agreement which Kirk and Equitable and Investors executed, encompassed a series of agreements in February, 1988 whereby: (1) Kirk would transfer the farm to Equitable in lieu of subjecting it to foreclosure proceedings; (2) Equitable would transfer the Farm to Investors in return for a promissory note signed by Investors; and (3) Investors would lease the farm back to Kirk for two years.

Included in this agreement were the following documents: (1) property transfer agreement between the three parties; (2) settlement agreement between Kirk and Equitable; (8) lease between Kirk and Investors; (4) option agreement and right of first refusal; and (5) a memorandum of the option agreement and right of first refusal.

Of particular concern in this case is the option agreement. The option provided Kirk the opportunity to repurchase the farm from Investors for a purchase price of ten thousand dollars. It contained language which would make the offer in the option irrevocable. “In consideration of $50.00 from buyer to seller ... will cement the option.” At the time that the option was executed, it is uncontested that the $50.00 consideration had not been paid, nor was payment requested by Investors.

The existence of the option agreement was recorded in a memorandum between seller and buyer. This memorandum provided that “in consideration of the premises, the agreements contained in the option agreement and herein, the payment by Buyer to Seller of FIFTY DOLLARS ($50.00) and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the parties hereto.... ” At the time the [185]*185memorandum was recorded, the $50.00 had not been paid. Kirk later, in the fall of 1988, tried to pay the $50.00 to Investors, but Investors refused to accept it, stating that the payment was not necessary.

In February of 1989, Kirk decided to exercise the option and tendered a check for $10,000 to Investors. Included was a letter of intent pursuant to the option directing Investors to convey title of the farm to Kirk. Investors refused to accept the tendered amount or to execute the deed to the farm, stating the option was unenforceable because the $50.00 had not been paid, though they had refused to accept payment of the $50.00 in the fall of 1988.

Kirk sued Investors seeking specific performance of the option. Investors filed a motion for summary judgment on the grounds that the option agreement was unenforceable as a matter of law because it was not supported by valid consideration (the non payment of the $50). Kirk opposed the motion, but did not also move for summary judgment. The trial court granted Investors’ motion for summary judgment.

When considering an appeal from summary judgment, this court reviews the record in the light most favorable to the party against whom judgment was entered. ITT Commercial Fin. Carp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo.1993). If the trial court, in order to grant summary judgment, must overlook material in the record that raises a genuine dispute as to the facts underlying the movant’s right to judgment, summary judgment is improper. Id.

I.

Kirk first claims that even if the $50.00 consideration is ignored, the offer is a regular contract offer; and, though not irrevocable, Kirk properly accepted the offer before Investors communicated their intent to revoke the offer.

The trial court, in granting summary judgment, held that the lack of consideration (payment of $50.00) precluded Kirk from exercising the option. This court disagrees.

Contract law clearly holds that consideration is only necessary in an option situation to make the offer (option) irrevocable. However, even if consideration is not tendered, an option, though not irrevocable, is a continuing offer to sell. Henson v. Wagner, 642 S.W.2d 357, 363 (Mo.App.1982).

An option is a contract collateral to an outstanding offer to sell property and is subject to the same requirements as other contracts including offer and acceptance. Accordingly, an offer to enter into an option will remain open until the option offer has been accepted, withdrawn, or a reasonable time has passed. Ragan v. Schreffler, 306 S.W.2d 494, 498-99 (Mo.1957).

The offeror is free to revoke his or her offer at any time prior to acceptance. Hendricks v. Behee, 786 S.W.2d 610 (Mo.App.1990). However, the offeror must communicate the revocation before the offeree has accepted. Id. Thus, in the case at bar, the offer remained open as long as Investors failed to give Kirk notice of its intent to revoke the offer. Investors did not do so until after Kirk tendered the $10,000 check for the repurchase of the farm. It is this court’s opinion that the option offer was accepted when Kirk tendered the $10,000 in February of 1989, thus the option is a binding contract.

Granted, Missouri courts have not yet ruled on this exact factual situation; however, several other states have. In Arkansas, for example, the Supreme Court, in Kelley v. Coldren, 226 Ark. 266, 290 S.W.2d 424 (1956), upheld an option contract. In Kelley, the court held $1 nominal consideration insufficient to make the option offer irrevocable, but instead held that the purchaser’s tender of $500 prior to the seller’s withdrawal was a valid acceptance of the option. Id. Accordingly, the buyer properly exercised the option, thereby binding the seller to the deal. Id.

The Kelley decision makes logical sense and is extremely factually similar to the case at bar.

In opposition, Investors claim Kirk’s acceptance of the option in February of 1989 was legally ineffective because the offer had [186]*186lapsed shortly after February 12,1988. This court disagrees. In the contract and option documents, the offer is made to Kirk to repurchase the farm at any time prior to February of 1990. This is even if the option is unsupported by consideration, as it ceases to be irrevocable, but becomes a continuing offer to sell. Gillen v. Bayfield, 329 Mo. 681, 46 S.W.2d 571 (1931).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Clifton Jameson v. Alexis Still
Missouri Court of Appeals, 2021
Ste. Genevieve County Levee District 2 v. Luhr Bros., Inc.
288 S.W.3d 779 (Missouri Court of Appeals, 2009)
Client Services, Inc. v. City of St. Charles
182 S.W.3d 718 (Missouri Court of Appeals, 2006)
SD Investments, Inc. v. Michael-Paul, L.L.C.
90 S.W.3d 75 (Missouri Court of Appeals, 2002)
Riddle v. Elk Creek Salers, Ltd.
52 S.W.3d 644 (Missouri Court of Appeals, 2001)
Fru-Con Construction Corp. v. KFX, Inc.
153 F.3d 1150 (Tenth Circuit, 1998)

Cite This Page — Counsel Stack

Bluebook (online)
897 S.W.2d 183, 1995 Mo. App. LEXIS 743, 1995 WL 226754, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ir-kirk-farms-inc-v-pointer-moctapp-1995.