43 Mo. 243 | Mo. | 1869
delivered the opinion of the court.
The plaintiff sues on a .promissory note. The answer admits its execution and avers that it was given for a portion of the purchase money for certain premises in Barry county, sold by the plaintiff to the defendant, September 21,1860 ; and then, among other things, states, for substance, that the sale was of seven hundred acres of valuable timber lands situated on Woolley Creek, in said county, with a steam saw-mill thereon; that the plaintiff, in pretended execution of this contract, delivered to the defendant,
As the pleadings stand, there is a manifest and material breach , of the contract alleged in the answer and admitted in the replication, for which the defendant would be entitled to redress, but the results of the trial denied it to him. Besides, the contract read in evidence, being the contract alleged in the answer, describes the land to be conveyed as a “ certain parcel of land in Barry county, and on Woolley Greek, containing seven hundred acres more or less.” There is not the least proof that such lands were conveyed, or that other lands were accepted as a substitute for them; and the proof shows that the Woolley Creek lands were worth at least $1.25 an acre, while all but a few acres of the four hundred actually conveyed were nearly or quite valueless. ' The defendant has put it out of his power to rescind the contract as a whole, but there is nothing' in the record to show that he accepted what was conveyed to him as a satisfaction of the plaintiff’s obligations under the contract.
The case is considerably complicated, and we do not deem it necessary to go into its details. It must be remanded for a new trial, and it is proper to add that, in our view, the case was presented and tried upon an erroneous theory. If the plaintiff, for
The pleading might be improved in form. The answer seems to have been framed on the theory of legal defense, and instructions were given and a trial had in the Circuit Court apparently on that theory; b.ut equitable relief is asked in the prayer for a surrender and cancellation of the note sued on. We see no reason why the statutory counter claim would not fully meet the exigency of the defense.
The judgment of the District Court is reversed and the cause remanded for a new trial in accordance with these views.