50 Mo. 234 | Mo. | 1872
delivered the opinion of the court.
The defendant, in 1860, executed to the plaintiff a bond for a deed for 120 acres of land at the price of $1,000, to-wit; $300 down and the balance in one and two years, for which notes were given. The $300 was paid; but the troubles coming on, the plaintiffs entered the United States service and failed to pay the notes. It is in evidence that defendant told them not to trouble themselves about the payments ; that when the war was over they would make it all right. The witnesses do not quite agree as to what was said, but it is agreed that the payments were not pressed, and no steps were taken to enforce or rescind the contract. In 1865, without further communication with the plaintiffs, the defendant sold and conveyed the land to one Roberts. On hearing of the sale, one of the plaintiffs called upon the defendant and claimed that they should be reimbursed for the amount paid. As to what passed at this and other interviews, there is conflicting testimony; but all the witnesses seem to agree that the defendant expected to refund something. The title bond had been accidentally burned, and defendant finally gave up the plaintiffs’ notes.
The present suit purports to be instituted for a violation of the contract by selling the property while it was in force, and thus putting it out of defendant’s power to comply with its terms.
Among the objections to plaintiffs’ proceeding is the fact that
I feel some hesitation in affirming the judgment under the theory upon which the case was tried. The plaintiffs’ counsel were misled by the decisions in this court under the old pleadings, and made in regard to a different class of contracts. Setting out the facts, they should have sued for the money and framed their instructions accordingly. The parties had abandoned the contract, and unless it was understood between them that in giving it up the claim for repayment was also surrendered, it still subsisted. It was claimed, upon the trial, that the surrender of the notes was intended as an
Judgment affirmed.