57 Mo. App. 272 | Mo. Ct. App. | 1894
— Plaintiff’s petition alleged that he entered into a contract with the defendant whereby he, plaintiff, sold defendant a certain farm in Andrew county; that at the time of the making of said contract there was a growing crop of wheat on said farm which had been sowed by plaintiff; that the consideration for the sale of the said farm was $3,000 in money and the delivery to plaintiff of one-half of said crop of wheat after it was harvested and threshed by defendant; that afterwards in pursuance of said contract at the request of defendant the plaintiff executed and delivered a deed to defendant’s wife conveying to her the title in fee to said farm; that defendant’s wife paid plaintiff $3,000, the consideration expressed in the deed; that the defendant afterwards harvested and threshed the wheat, but refused to .deliver any part thereof to plaintiff, but converted the same to his own use, etc. The answer was a general denial coupled with the special defense of the statute of frauds.
The abstract sets forth much of the evidence and concludes with the statement that there was “some evidence tending to support the issue on either side.” The plaintiff had judgment in the circuit court and the defendant appealed.
The contention of the appealing defendant is to the effect that the parol contract alleged- in the plaintiff’s petition and in support of which he offered some
It would seem that the rule of law as declared in McIlvaine v. Harris, 20 Mo. 458, is overthrown by the later decision in Garth v. Caldwell, supra, though it is otherwise intimated in Hayden v. Burkemper, 101 Mo. 644; but, however this may be, it is clear enough that, under the rule declared in Garth v. Caldwell, that the contract alleged in the petition, while not in writing, is not within the interdict of the statute of frauds.
The defendant further contends that the deed offered in evidence is conclusively presumed to include the whole contract between the parties thereto. While this contention may be conceded to the defendant, it is, nevertheless, true that, in a deed like that in this case, where there is a mere statement of a certain amount of money without more as the consideration, it is but inattentive recital common in conveyancing of a consideration in most general use, which forms no part of the contract. The statement of the amount of the consideration in a deed, and the acknowledgment of its payment is no more than a receipt — a statement of a fact which is not necessary to the validity of the deed. It is only prima facie evidence of what it states, but not conclusive, except that there was some consideration. Such a recited consideration is not intended to be contractual, and therefore, works no estoppel as to amount or character, or, in other words, the parties in such.
It follows that it was competent for the plaintiff to show by parol evidence that the consideration for the sale of the land was the $3,000 in money and the delivery of the one-half of the growing crop of wheat when harvested and threshed.
It is needless to say that the petition stated a good cause of action and since its allegations were established by evidence to the satisfaction of the triers of the fact under instructions which are in accord with the foregoing statement of the law the judgment must stand. Those of the defendant’s instructions refused by the court, being inconsistent with that given for plaintiff, were properly refused.
The instruction given by the court at the request of the plaintiff with those given on its own motion when considered in their entirety present unexceptionable rules of law for the government of the jury. The plaintiff, having parted with his land without receiving the' whole consideration which was agreed upon, was éntitled to recover the deficiency.
We are unable to find any serious fault with any of the rulings of the court, and so must affirm the judgment.