60 Mo. App. 512 | Mo. Ct. App. | 1895
This is an action to recover $600, the same being the amount of purchase money claimed to be due under an agreement in writing for the sale of certain real property situate in the state of Kansas. The petition sets out the terms and provisions of the contract, the essentials of which have .just been sufficiently stated for the purpose of a proper understanding of the question which we shall presently notice. The answer contained a general denial and the plea of the statute of frauds. There was a trial before the court, a jury being dispensed with, where plaintiff had judgment and defendant has appealed. There were no declarations of law asked or given in the case. The only question of any moment which is presented by the meager record before us is, whether the court erred in permitting the plaintiff, after establishing the loss of the written instrument sued on, to make parol proof of the terms of suchinstrument.
The statute relating to frauds and perjuries in force in the state of Kansas, where the contract was made, was not introduced in evidence, and we may presume that it is identical with our own, which provides that no action shall be brought upon any contract made for the sale of lands, or any interest in or concerning them, unless the agreement upon which the action is brought, or some memorandum or note thereof shall be in writing and signed by the party to be charged therewith, etc. R. S.,5186. This action is upon a written agree
And in the work just cited, it is further stated in section 558: “If the instrument is lost, the party is required to give some evidence that such paper once existed, though slight evidence is sufficient for this purpose, and that a bona fide and diligent search has been unsuccessfully made for it in the place where it was most likely to be found, if the nature of the case admits such proof; after which, his own affidavit is admissible to the fact of its loss. * * * Satisfactory proof being thus made of the • loss of the instrument, the party will be admitted to give secondary evidence of its contents.” This rule is elementary. Starkie on Evidence [10 Ed.], p. 542; Brown on Statute of Frauds, sec. 346«; Reed on Statute of Frauds, sec. 326. And it has been followed in many of the adjudicated cases. Jelks v. Barrett, 52 Miss. 315; Orne v. Cook, 31 Ill. 238; McCarty v. Kyle, 4 Caldw. (Tenn.), 348; Grayson v. Bannon, 8 Watts, 524; Irwin v. Irwin, 34 Pa. St. 525; Reid, v. Kenworthy, 25 Kan. 701; Jackson v. Livingston, 7 Wend. 139; Farmer v. Simpson, 6 Tex. 303; Fitzgerald v. Adams, 9 Ga. 471; Blackburn v. Blackburn, 8 Ohio, 81; Hunter v. Simrall, 5 Litt. (Ky.) 62.
The defendant has cited us to a great number of authorities, but none of them touch upon the fore
The defendant is in error in supposing that the rule does not obtain in this state. The rulings in Wildbahn v. Roubidoux, 11 Mo. 659; Hood v. Turner, 22 Mo. 335; Springer v. Kleinsorge, 83 Mo. 152; Allen v. Richards, 83 Mo. 55, and Bernhardt v. Walls, 29 Mo. App. 206, are all based upon that of Chancellor Walworth in Cozine v. Graham, 2 Paige, 177, and subsequently repeated in Bank v. Root, 3 Paige, 478, to the effect that if an agreement or contract is stated in the declaration to have been made, it is not necessary to allege that it was in writing, as that will be presumed until the contrary appears. If the agreement is denied, the plaintiff must produce legal evidence of its existence. Of course, the primary or best evidence is the instrument itself, but, if that be lost, under the rule which we-have stated, then secondary evidence — parol proof of its execution and terms, is admissible. The secondary evidence in such case, ex necessitate rei, becoming the best evidence
In permitting the plaintiff, over the objection of the defendant, to make parol proof of the essential terms and provisions of the written agreement alleged in the petition, we think the court committed no error.
Whether the undisputed evidence showed that the transaction evidenced by the agreement sued on took place on Sunday or not, we can not tell, since the abstract does not purport to present all the evidence. As far as we can discover, however, the contrary is the fact. But, be this as it may, the record does not disclose that any such defense was interposed by the answer, or otherwise, or that the attention of the court was in any way called to this supposed infirmity of the agreement, in the motion for a new trial, nor indeed in any other way. The objection is of a character that, being made here for the first time, it can have no consideration.
We can not discover any error in the action of tlie court in refusing to continue the cause, after having allowed plaintiff to amend his petition. There was no .affidavit that defendant had been surprised or misled, presented to the court, as required by the practice act; R. S., sec. 2096. More than a month after the trial and judgment, the defendant made an affidavit alleging that he was surprised and misled by the amendment allowed to be made, which affidavit was presented at the'argument of the motion for a new trial. But, on turning to that motion, we do not perceive that the action of the court in allowing the amendment is made one of the grounds therefor. So that the point can not be
Finding no error has been committed prejudicial to the defendant, the judgment must be affirmed.