Zoellner v. Carty

585 S.W.2d 289, 1979 Mo. App. LEXIS 2435
CourtMissouri Court of Appeals
DecidedJuly 31, 1979
DocketNo. KCD 29865
StatusPublished
Cited by10 cases

This text of 585 S.W.2d 289 (Zoellner v. Carty) 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
Zoellner v. Carty, 585 S.W.2d 289, 1979 Mo. App. LEXIS 2435 (Mo. Ct. App. 1979).

Opinion

SWOFFORD, Chief Judge.

This is an action in equity wherein the appellants (buyers) brought suit against the respondents (sellers) for specific performance of a real estate sales contract involving approximately 800 acres of farmland in Grundy County, Missouri. After the evidence was heard by the court below, a decree was entered wherein the trial court, sitting as a chancellor in equity, found that the real estate contract was a valid and binding contract but denied relief for the reasons of the advanced age of the seller, H. M. Carty, the lack of business experience of his wife, Louella Carty, and the fact that under the terms of the contract the possibility of completion thereof was extended for 20 years with payments thereunder contingent upon future events and prices. The court found that by reason of these facts the contract was unreasonable and unfair, declined relief, and left the buyers to their remedy at law for breach of contract and damages, if any. ■ This appeal followed.

The appellants-buyers raise a single point on this appeal. They assert that the trial court erred “in Denying Specific Performance of the Real Estate Sale Contract on the Grounds Said Contract is Unreasonable and Not Fair to Sellers”. This point is not in compliance with the requirements of Rule 84.04(d), but since respondents raise no objection upon that basis, it will be considered as placing in issue on this appeal the sufficiency of the evidence to support the decree.

[291]*291A review of this type of equity action, under this presentation, would seem to throw open the floodgates to a broad and limitless scope of scrutiny by this Court. However, such is not the case since that review is closely limited and defined by binding decisional case law and generally accepted text law in Missouri.

The law is clear that a decree of specific performance is not a matter of right even to enforce the terms of a legal and binding contract. Rather, it is a matter of grace resting upon basic equities and residing within the sound discretion of the chancellor, depending in the last analysis, upon the facts of each particular case. Cossairt v. Reich, 370 S.W.2d 291, 295[3] (Mo.1963); Miller v. Coffeen, 365 Mo. 204, 280 S.W.2d 100, 102-103[3-6] (Banc 1955); Landau v. St. Louis Public Service Co., 364 Mo. 1134, 273 S.W.2d 255, 259[8-12] (Banc 1954).

The authorities have further delineated criteria for the exercise of the court’s discretion in this class of case. Such may be properly exercised where the contract is induced by some sharp practice or where it is “unfair, overreaching or biting”, or where there are present elements of covetous contrivance or imposition. Cossairt v. Reich, supra, at 1.c. 295[4]; Likens v. Sourk, 263 S.W.2d 462, 465[4] (Mo.App.1953); Ensign v. Home for the Jewish Aged, 274 S.W.2d 502, 508[7] (Mo.App.1955).

This general rule is stated in 81 C.J.S. Specific Performance § 20a, pp. 737-739:

“Specific performance of a contract is never decreed when its enforcement would be inequitable or unconscionable, or produce injustice or hardship or where the specific performance of the contract would operate oppressively as to either party, even though there is no sufficient ground for rescission or cancellation.”

In Likens v. Sourk, supra, at l.c. 465[5-6], the court said:

“ * * * The criterion by which a contract is judged, as to ordering its specific performance, is not whether a court would be justified in its rescission, or in refusing other forms of relief, but whether it would be inequitable to enforce the contract. * * * ”

Upon review of the trial chancellor’s decree in this equity proceeding, traditionally due deference must be given to the trial court’s opportunity to see and hear the witnesses and to judge their credibility and to reconcile conflicts in the testimony. Rule 73.01(3)(a), (b).

Since the decision in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976) the scope of review in such cases has been even further limited. In that case, Rule 73.01 was declared to mean that the judgment in court-tried cases should not be set aside on review (even in cases on the law side which the Rule stated “shall be reviewed upon both the law and the evidence as in suits of an equitable nature”) unless, a) there is no substantial evidence to support it; b) it is against the weight of the evidence; c) unless it erroneously declares the law, or, unless it erroneously applies the law. The power to set aside a judgment on the ground that it is “ ‘against the weight of the evidence’ ”, Murphy further declares, should be exercised with caution and with a firm belief that the decree or judgment is wrong, and that the use of the traditional words “de novo” and “clearly erroneous” is no longer appropriate in review of a court-tried case. Murphy v. Carrón, supra, at l.c. 32[1 — 3].

In the light of these principles the record has been carefully reviewed and it discloses that the following facts are supported by competent and substantial evidence:

At the time of the events here involved the respondents were husband and wife and were the owners and operators of a farm in Grundy County, Missouri consisting of approximately 1163 acres. H. M. Carty was 75 years of age and so hard of hearing as to be virtually deaf. His wife, Louella, was 55 years of age and was a farm housewife with no business training or experience. The Cartys in 1976 were interested in selling that part of their farm described as [292]*292lying east of a public road that divided their farm, which contained approximately 800 acres of land. The crop farming on this part of the farm was done by a tenant on 50% shares and the testimony established that the share realized by the Cartys on the 800 acre tract (of which approximately 600 acres was in crops) for the year 1975 was $29,233.96 and for the year 1976 was $24,-062.13. The crops raised were corn and soybeans. At the time of the negotiations here involved there was a first mortgage-deed of trust on the entire Carty farm held by the Phoenix Mutual Insurance Company of Iowa with an unpaid principal balance of $139,000.00. The primary reason that the Cartys wished to sell the 800-acre tract was to convert their equity therein to an interest bearing note secured by a first deed of trust on the land, as income.

Mr. A. R. Hammett was engaged in the real estate, and insurance business, lived on a farm east of Trenton, and had been a friend of the Cartys for a number of years. He learned of the Cartys desire to sell the 800-acre tract and communicated this fact to his daughter, Alice Davidson, one of the appellants herein, who lived in St. Louis County and was an independent real estate broker in the office of Zoellner. She, in turn, communicated this fact to Weldon J. Zoellner, the other appellant, who was also a resident of St. Louis County and was engaged in the real estate business. Zoell-ner had apparently previously made inquiry of Mrs. Davidson if she knew of any farm property for sale.

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Bluebook (online)
585 S.W.2d 289, 1979 Mo. App. LEXIS 2435, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zoellner-v-carty-moctapp-1979.