Freiermuth v. McKee

| Mo. Ct. App. | Dec 3, 1900

ELLISON, J.

Plaintiff leased his farm situated in the state of Iowa by written lease to defendant for three years at $450 per year, making a total rent of $1,350. Defendant paid the sum of $1,035.48 of the amount, leaving a balanee, as plaintiff claims, of $314.52. Defendant’s answer admitted the lease and pleaded payment in full. The judgment was for defendant.

Plaintiff’s instructions, given at his request, seem to concede a payment of $1,038.75, and that the balance due was $311.27. Defendant claims to have paid the balance due in this way: That plaintiff told him that if he would sell his wheat and pay plaintiff the proceeds that he, plaintiff, would accept it in full discharge of the balance. That he sold his wheat (500 bushels) at fourteen cents per bushel, and deposited the proceeds to plaintiff’s credit in the bank where plaintiff had an account. This was a special agreement amounting to an accord and satisfaction and should have been pleaded in the answer. It should not be received in evidence under the mere plea of payment. Shaw v. Burton, 5 Mo. 478" court="Mo." date_filed="1838-08-15" href="https://app.midpage.ai/document/shaw-v-burton-6610018?utm_source=webapp" opinion_id="6610018">5 Mo. 478; Wilkerson v. Bruce, 37 Mo. App. 156" court="Mo. Ct. App." date_filed="1889-05-28" href="https://app.midpage.ai/document/wilkerson-v-bruce-8259795?utm_source=webapp" opinion_id="8259795">37 Mo. App. 156; Hyde v. Hazel, 43 Mo. App. 668" court="Mo. Ct. App." date_filed="1891-02-02" href="https://app.midpage.ai/document/hyde-v-hazel-6616528?utm_source=webapp" opinion_id="6616528">43 Mo. App. 668.

But" it appears that the evidence was admitted without objection from plaintiff, though he did object to defendant’s instruction on this head. The evidence being admitted without objection, we think that under the circumstances plaintiff should be considered as accepting the answer as a sufficient plea to cover this phase of the defense, and should not be permitted, after the close of the evidence, to make an objection to an instruction based on evidence admitted with his tacit consent.

But the evidence of this special agreement, preserved in the record, as given by defendant himself, is far too indefinite, incomplete and uncertain to amount to proof of the agreement claimed. There is no evidence that defendant accepted of plaintiff’s offer to receive the proceeds of the wheat for the balance owing him. There is no evidence which shows that defendant would have been bound to perform the agreement, and it is extremely difficult to believe that if the proceeds of sale bad been much more than the balance instead of much less, defendant would have felt under any obligation to turn over to plaintiff the full proceeds.

The judgment is reversed and cause remanded.

All concur.