Opinion
No 37177.
October 10, 1949.
1. Specific performance — sale of real property — filling in blank left in signed contract.
Where owners signed a written contract for the sale of their home, unfurnished, to complainants and in defense to a bill for specific performance the contract grantors contended that the blank left in the signed contract wherein to insert the amount of the purchase money was fraudulently filled in for $16,000 when the understanding was that the amount should be $18,000, but the chancellor found upon conflicting evidence that the true amount was $16,000, a decree for specific performance was proper so far as the defense of fraud was concerned.
2. Specific performance — earnest money paid — tender of balance with bill.
When under a written contract for the sale of real property the contract grantees paid the stipulated earnest money to the owners' authorized agent, and it sufficiently appears that the contract grantors would not have accepted the balance of the amount of the purchase price correctly named in the contract, demanding more, and the earnest money was paid into court, and the correct balance tendered, with the bill, the court properly decreed a specific performance.
3. Specific performance — rental during period of refusal to perform.
The sum of eighty-five dollars per month, shown by the testimony to be reasonable, was properly allowed the contract vendees in the decree for specific performance as rental for the period during which the contract grantors refused performance.
4. Specific performance — contract provision to prorate taxes.
A decree for specific performance must recognize and carry into effect the contract provision to prorate the taxes, and when instead the commissioner's deed executed in pursuance of the decree was a warranty deed, thereby imposing upon the contract vendors responsibility for all the taxes, the decree will be reversed as to the taxes and the cause reversed for the proper correction.
Headnotes as approved by Alexander, J.
APPEAL from the chancery court of Forrest County; LESTER CLARK, Chancellor.
Harold Cox, for appellants.
The trial court erred in granting specific performance in this case. (a) The bill of complaint in this case made no legal tender such as to warrant specific performance. Phelp v. Dana, 121 Miss. 697; Morton v. Varnado, 127 Miss. 332; Griffith's Miss. Chan. Prac., Sec. 522.
(b) There was no consideration for the execution by appellants of the contract in suit. Bell v. Oates, 97 Miss. 790; Leggett v. Vinson, 155 Miss. 411; Barcroft v. Armstrong, 198 Miss. 565.
(c) Specific performance is granted in equity only when the right thereto is clear and certain and free of doubt. 49 Am. Jur. Sec. 22, 25, 32; Pomeroy on Specific Performance of Contracts, 3d Ed. Sec. 159; Fowler v. Nunnery, 126 Miss. 510; Phelp v. Dana, 121 Miss. 697; Welch v. Williams, 85 Miss. 301.
(d) There was an abuse of its discretion by the trial court in awarding specific performance on this contract. Daniel v. Frazer, 40 Miss. 507; 49 Am. Jur. Secs. 6, 7, 51, 15, 17, 55, 78, 169; Pope Mfg. Co. v. Gormully, 144 U.S. 224; Lewis v. Woods, 4 How. (Miss.) 86; Hennessey v. Woolworth, 128 U.S. 438.
(e) The description of the property in the contract and in the final decree is erroneous.
The trial court erred in awarding Marcus London a decree against the appellants for $800 commission. Simpson v. Smith Sons Gin Co., 75 Miss. 505; Paine v. Mikell, 187 Miss. 125; Paine v. Newton, 186 Miss. 844.
The trial court erred in awarding appellees rents in the amount of $85 per month.
The court erred in ordering appellants to execute a warranty deed to the property in suit without exceptions.
E.C. Fishel, for appellees.
Non est factum. Section 1750, Code 1942; Section 1587, Code 1930; U.S.F. G. Co. v. Wofford, 164 Miss. 595, 144 So. 550; Holmes v. McCall, 114 Miss. 57, 74 So. 786; Farrard v. Buckalwew, 155 Miss. 194, 124 So. 333; Masonic Benefit Ass'n. v. Simmons, 86 Miss. 470, 38 So. 791.
Parol evidence to contradict, and vary written contract. Stone v. Grenada Grocery Co., 190 Miss. 555, 1 So. 229; 12 Am. Jur. 757; 22 C.J. 1070 (1380)A, 1098 (#1459)A; N.O. N.E.R.R. Co. v. Lott, 118 Miss. 57, 79 So. 1; English v. N.O. N.E.R.R. Co., 100 Miss. 809, 57 So. 223; Red Snapper Sauce Co. v. Bolling, 95 Miss. 752, 50 So. 401; Creek Neal Coffee Co. v. Morrison Hinton, 96 Miss. 835, 51 So. 1.
Filling in blanks. Fanning v. C.I.T. Corp., 187 Miss. 45, 192 So. 41; 2 C.J. pp. 1242, 1252; Grenada Coca Cola Co. v. Davis, 168 Miss. 826, 151 So. 743; 13 C.J. 370, (#249)4, 373 (#255) 7.
Contracts. Assent. 12 Am. Jur. 515 (19); Supreme Lodge K.P. v. Stein, 75 Miss. 107, 21 So. 559.
Tender. Griffith's Miss. Chancery Practice #523; 58 C.J., pp. 1083, 1084, 1085, Secs. 344, 348(e), 349(2); 49 Am. Jur. pp. 167, 169-170, Secs. 144, 146; Gannaway v. Toler et al, 122 Miss. 111, 84 So. 129; Baker v. Hardy, 194 Miss. 662, 11 So.2d 803; Hesdorffer v. Welsh, 127 Miss. 261, 90 So. 3.
Description. Jones v. Hickson, 37 So.2d 625.
Bill was filed by appellees to compel specific performance of a contract under which appellants had agreed to sell their home at the price of $16,000.00. The prayer of the bill was granted and appellees awarded rent upon the property at the rate of $85.00 per month from October 9, 1947, to August 9, 1948, the approximate date of the decree.
The background of the litigation is as follows: On August 9, 1947, the Coulters entered into a contract to sell their home, completely furnished, for $19,000.00. Earnest money was paid by Banks to the negotiator, London. There was some dissatisfaction with regard to the items of furniture. On August 16, 1947, the parties entered into a second contract for the sale of the Coulter home, unfurnished, for $16,000.00. The contract acknowledged a similar deposit as earnest money. Although it is argued that there was no new consideration for the second contract, and that there was no tender by Banks of the balance due the Coulters, (Hn 1) the only defense set up in the answer is that the second contract — the only one in litigation — was infected with fraud. Specifically the contention is that it was signed in blank by the Coulters with the understanding and direction that the blanks therein would be filled in to show a consideration of $18,000.00 and not $16,000.00 as now appears.
In view of the fact that the trial court found upon conflicting testimony that no fraud or misunderstanding existed, it would seem that this would be a conclusion of the whole matter. Yet we notice some of the errors assigned.
We find first that there was no abuse of the Chancellor's power or discretion in granting specific performance. There is no showing of a lack of consideration. (Hn 2) The fact that the amount paid as earnest money was the same in both cases is not as important as the fact that it was made available as a forfeit. That there was no deposit as an escrow under the second contract is not sufficiently shown by the fact that the parties, including the escrow agent, are the same. For all we know the first contract had been abandoned by mutual consent. It is not involved in this action nor are any rights or obligations predicated thereon. London was one of the complainants in the suit. He claimed that this deposit was held by him on the second contract and that he was entitled to a realtor's commission upon the sale. The earnest money was paid into Court by London and decreed to the appellants.
Although failure of the appellees to make tender of the balance due is argued as a basis for denying specific performance, it was not raised by the pleadings. It sufficiently appears that the Coulters would not have accepted the balance since their contention all along had been that they never agreed, and were never willing, to sell their home for $16,000.00. Moreover, the bill itself tenders and offers to pay into Court the earnest money and the balance of the agreed price less realtor's commission. In fact the full amount is shown to have been paid to the Clerk of the Court acting as special commissioner under the final decree.
(Hn 3) There was sufficient testimony to support a finding that $85 per month was a proper rental. Other assignments, with the exception noted hereinafter, are not found adequate to a reversal.
(Hn 4) It is noticed that the contract provided that the taxes on the property "for the current year", that is, 1947, were to be prorated between the parties. The deed executed by the special commissioner was dated August 23, 1948, and was a complete warranty, thereby imposing on the appellants responsibility for all taxes for both the years 1947 and 1948. This was error.
The cause will be reversed and remanded to allow correction of this error and to adjust such other equities as may be appropriate. In other respects the decree of the trial court is affirmed.
Affirmed in part, reversed in part and remanded.