231 Mo. 676 | Mo. | 1910
This is a suit for the specific performance of a contract for the sale of land. Defendant filed a demurrer to the petition, which was overruled, and then filed its answer, a general denial. The cause came on for trial, which resulted in a judgment for the defendant, dismissing the plaintiff’s petition. Plaintiff filed a motion for new trial, which the court sustained, and from the order sustaining the motion for a new trial the defendant has appealed.
There is no hill of exceptions in the record and we therefore do not know what the evidence was or what were the proceedings at the trial. But the- defendant insists that the plaintiff’s petition does not state facts constituting a cause of action, and for that reason on the face of the record the judgment should have been for the defendant. The petition is in due form, it states the terms of the contract, which was in writing, and all other facts necessary to make out a case for specific performance, if it sufficiently describe© the land. The only point on which appellant relies to sustain its demurrer to the petition is the alleged insufficient description of the land. That description is as -follows: “A certain lot, tract, or parcel of land situated in Webster G-roves, in the county of St. Louis, State of Missouri, bounded and described as follows: An unimproved lot on the north side of the Missouri Pacific Railroad, bounded on the north by the westerly continuation in a straight line of the south line of Oak street, bounded on the east hy a line one hundred and forty-nine feet and two inches, more or less, in a westerly direction from and parallel to the western boundary line of lot thirty-two in Oak G-roves addition, as per the plat of said addition now recorded and on file in Plat Rook No. 1, at page 106, in the office of the re
The petition pleads the contract by its legal effect, as is proper, and then says a copy thereof “is hereto attached and marked ‘Exhibit B.’ ” In that exhibit the description is as follows: “Lot to be located by survey, said lot being on top of hill north of the Missouri Pacific tracks in Webster Groves, Mo., bounded on the north by the westerly extension of the south line of Oak street, yet to be surveyed; on the south by the right of way and parallel to the Missouri Pacific Railroad; on the east by land now owned, or occupied by Mr. Flummerfelt, yet to.be surveyed; and on the west by a line 100 feet west of the east boundary line. ’ ’
We do not understand that appellant contends that the description of the land in the body of the petition is not sufficient, but does contend that the description given in the contract sued on, which is filed as an exhibit, is not sufficient. The specific point on which appellant relies is in what is. alleged to be the uncertain location of the north boundary line of the lot, to-wit: “Said lot . . . bounded on'the north by the westerly extension of the south line of - Oak street, yet to be surveyed.” Appellant in its brief says: “The south line of Oak street might, as far as. this attempted agreement was concerned, have been run in any direction, curved or straight, within an angle of ninety degrees, and still be literally in a westerly direction. ’ ’ •
The case is here on the record proper, and the question is, is the description in the petition sufficient?
Having said that the exhibit is no part of the petition, and that the description in the petition is sufficient, it is perhaps unnecessary to express an opinion as to the sufficiency of the description in the exhibit, but since the cause is to go back to be tried again and since counsel on both sides have discussed the case as if the exhibit was to be taken as part of the petition we deem it better to'consider, also, appellant’s proposition that the description in the exhibit is not sufficient to justify the court in decreeing a specific performance. The line alleged to be uncertain is thus described in the exhibit:
The judgment is affirmed.
