Suhre v. Busch , 343 Mo. 170 ( 1938 )

ON MOTION FOR REHEARING. Plaintiff's motion for rehearing is mainly a reargument of questions decided and hence does not comply with our Rule 21. Nevertheless, we have reexamined these questions and concluded that the rulings made are correct. However, we deem it advisable to point out that, in addition to the grounds stated in the opinion for dismissing plaintiff's bill, there is still another reason why plaintiff's bill must be dismissed. [5] It is that even if it could be held that tender by plaintiff could be excused, on any ground, plaintiff could not be entitled to specific performance because it appears from her own evidence, as a matter of law, that she never was either ready or able to make performance on April 16, 1931, or at any time between April 16, 1931, and May 16, 1931. Mr. Steinberg testified for plaintiff concerning the dealings he had with her and her husband, as follows:

"I had conversations or negotiations with Mr. Suhre in the spring of 1931, in regard to making a loan to Mrs. Suhre on stock of Anheuser-Busch Company. . . . He said he would like to get about $60,000.00 on the deal. `It will take about $50,000.00, I imagine, to clean up the loan; naturally, I haven't the exact figures, and Mrs. Suhre and I need some extra money to clean up some other matters.' So I figured that would be about $75.00 per share, and I told him I would make him the loan at $75.00 a share on the 812½ shares of stock for two years, at 6 per cent interest; and I said, `Now, I know this is not your stock, Will. This is your wife's stock, and I am not going to make a deal with you unless it is with the express understanding that your wife approves of it, and so that I may know it, I want your wife to be here and present when we make the deal.' . . . He brought her down next day, on April 15. . . . I told Mr. and Mrs. Suhre that if Mrs. Suhre was willing to sign the stock or endorse it for a loan, I would make the loan to her at $75.00 per share for two years time, at 6 per cent interest. . . . I did not commit myself as to my being willing over any definite period of time to make the loan. . . . The collateral I had agreed to take for my loan of the money, were the same shares that they sold Mr. August A. Busch, covered by those two option contracts; I knew nothing about option contracts; nor that there were two or one; I only knew it was 812½ shares. . . . I don't recall their having told me anything excepting that they had 812½ shares of Anheuser-Busch stock with Mr. Busch and they owed him approximately $50,000.00, and they wanted to get a little more than that so they could have some money to square up other matters they wished to, and that the whole thing figured about $60,000.00, so I figured it at $75.00 a share. They did tell me that Mr. Busch had refused to extend the time further, so they had to have the money."

Mr. Steinberg further testified that he heard nothing more from them until he met Mr. Suhre in the lobby of an office building and that he then had the following conversation with him:

"I said, `Say, Will, what kind of business is this? You come up and arrange to make a loan with me, and I tell you I will do it, and I haven't heard anything about it for ten days. What is the delay? What is the matter?' He said that he should have been in to see me but that he heard Mr. Busch had been sick and he had had delay in consummating the taking up of the loan from the Busch end of the matter, on account of Mr. Busch not being there to attend to it."

Plaintiff testified as to this arrangement thus:

"Q. Was there anything said as to how long he would continue to be willing to make you that loan? . . . Was there any discussion as to how long it would be before you would give him an answer on that? A. I said I would probably let him know within a few days. . . . Q. Why didn't you accept the loan from Mr. Steinberg on the occasion when he agreed to loan it to you, when you and Mr. Suhre first went down there, and when you told him that you would let him know in a few days? A. Well, because when we went down there they said Mr. Busch, was at home sick and Mr. Huber couldn't do anything."

Mr. Suhre also testified, as follows:

"Q. Isn't it a fact that the only way in which she could possibly have made the repurchase was to borrow the money on the very same shares of stock covered by those options? . . . That is the only means out of which she could possibly finance the repurchase of those shares of stock? A. Yes, sir. . . . After I found out the amount due, Mr. Steinberg was to send his representative down there with the money and he was to get the stock. . . . When I made the terms with Mr. Steinberg, nothing was mentioned about how long he would keep the money available for Mrs. Suhre's borrowing. Nothing was said on that point at the later conference when Mrs. Suhre accompanied me. It was never brought up. He gave me no writing to commit himself to hold the money for a definite time, and no time was mentioned orally as to how long he would be willing to continue to lend the money. . . . Q. Your expectation was, I assume, that you would be able to arrange so that in some way a conference could be had between Mr. Huber and Mr. Steinberg; where he, Steinberg, would pass over the money to Mr. Huber and Mr. Huber would release the shares so as to be paid for his loan to Mrs. Suhre; is that right? A. Yes, sir."

It is clear from this testimony that neither plaintiff nor her husband ever had the money available to make this re-purchase; nor did they ever have an enforceable legal obligation from anyone to make it available. At most, they had only an offer of a loan, which was subject to revocation at any time before acceptance. Certainly such an oral offer to make a loan on stock, which plaintiff did not then own, was not the money or its equivalent and did not make plaintiff ready and able to pay the money, when she had signed no note or obligation for it, and had never even definitely agreed to borrow it. The prospective lender was never (before May 16, 1931, when Mr. Steinberg claimed his offer was not open because not accepted within a reasonable time) informed that plaintiff would or did accept his oral offer to lend it, not even on the day (May 15, 1931) when plaintiff and her husband were notified that the options would be finally terminated. In short, while offer was open it was left unaccepted. Certainly plaintiff could not, in this situation, recover damages from Steinberg if he had at any time refused to make the loan. The testimony as to the actual negotiations for the money fails to sustain plaintiff's claim that she had made arrangements by which the money was available so that she was ready and able to perform. Furthermore, Mr. Steinberg was told "nothing about option contracts;" he did not ever offer to furnish money totender to Mr. Busch in performance of the re-purchase options; he only agreed to make a loan on 812½ shares of Anheuser-Busch stock when plaintiff endorsed it for a loan. In any case, whether he would have ever advanced the money to buy the stock was left to speculation and conjecture. That he did not do so or become legally bound to do so is a fact. If plaintiff's negotiations for this loan were left in such condition that Mr. Steinberg had the right to withdraw his offer to make it, how could it be said that plaintiff was ever ready and able to pay the money? "A proposed purchaser is not able, when he is depending upon third parties who are in no way bound to furnish the funds to make the purchase." [Note 1 A.L.R. 528; Reynor v. Mackrill (Iowa), 164 N.W. 335, 1 A.L.R. 523; see, also, 58 C.J. 1065, sec. 316; 25 R.C.L. 336, sec. 158.] As pointed out in Wimer v. Wagner,323 Mo. 1156, 20 S.W.2d 650, even under a bilateral contract there is a great difference between the purchaser's right to defeat the vendor's affirmative action (if the vendor was in default), and the purchaser's right to specific performance (when he is in default himself), because "when both parties are in default, neither has a cause of action against the other." Plaintiff was in that situation upon any view of the case.

The motion for rehearing is overruled. Ferguson and Bradley,CC., concur.