93 Mo. 513 | Mo. | 1887
Lanitz brought this suit against Chas. E. King, to recover damages for alleged breach of contract for the purchase of real estate. Plaintiff declares upon a written contract, and states that defendant executed the same by his authorized agent, Edgar Miller. The contract sued upon, and read in evidence, omitting the description of the property, is as follows:
‘ ‘ St. Louis, February 25, 1881.
“Received of George Lanitz, fifty dollars, being on account of payment for lots, * * * which I have this day sold him for ten thousand dollars cash, upon the delivery of a warranty deed, the taxes of 1881 to be paid by said George Lanitz. If the title is not found perfect, the above amount to be refunded. Said Lanitz is to have two weeks’ time to make arrangements for the payment of the price above named.
“Challes E. King,
“Per Ed gab Milleb.”
The petition further states, that plaintiff has, at all times, been ready and willing to carry out the contract; that he tendered to defendant the balance of the purchase price, namely, $9,950, and demanded a deed, and that the defendant refuses to execute and deliver to him a deed to the property. The defendant answered, first*
The evidence for the plaintiff tends to show that Miller, who was a real estate agent, found the plaintiff, Lanitz, and took him to King, the defendant, and, after some dickering, they came to an agreement. Lanitz then offered King fifty dollars, but King said to give it to Miller, who would give him a receipt therefor. Lanitz and Miller then went to the latter’s office and Miller executed the receipt in question, which appears to express, in substance, the agreement of the parties. It appears that the property had descended from Willis King, and that the other heirs conveyed to the defendant in order that he might sell it for all of them, he being one of the heirs. Debts had been allowed in the probate court, to the amount of two thousand dollars, against the estate of Willis King, and as these debts had not been paid, the property was liable to be taken in discharge of them. Plaintiff was not satisfied with the title, and there is evidence tending to show that King said he would have the debts settled. Miller and Lanitz had several conversations during the year, and
The court sustained a demurrer to the evidence, and the plaintiff appealed. Assuming that the evidence tends to show that Miller had authority to make the contract, which it does,- and that the stipulation in the agreement, that, if the title was not found perfect, the fifty dollars should be returned -to plaintiff, was one for the benefit of the plaintiff only, still it is an admitted fact that the plaintiff did not offer to comply with the contract by paying the money within the two weeks. He did not make the offer until some twenty months after the time he had agreed to make the payment. He was, therefore, in default himself. But his position here is, that the time of payment was waived, and that he may show this waiver under the allegation of his petition, that he complied with the terms of the written contract, which he sets up and offered in evidence ; and in support of this position he cites us to St. Louis Ins. Co. v. Kyle, 11 Mo. 278, and Russell v. Ins. Co., 55 Mo. 585.
The first of these cases was an action on a policy of insurance, and the court, after stating that formal deficits in the proofs of loss might be regarded as waived, where the finder writers put their refusal to pay on other grounds, proceeds to say: “Nor do I perceive any objection to such evidence on the ground that the pleadings involve a different issue. It is merely evidence of a
But in the case of Pier v. Heinrichoffen, 52 Mo. 333, which was an action on a promissory note, the petition averred that demand of payment was made at the maturity of the note, and that defendant was duly notified thereof. This averment, it was held, did not lay a proper foundation for evidence showing an excuse for not making the demand at the time alleged in the petition. Again, in First National Bank v. Hatch, 78 Mo. 24, it was said : ‘ ‘ When the plaintiff, in his petition, alleges presentment and notice of dishonor, he is. not permitted, under the practice act, to prove that defendant waived such conditions in the absence of proper averments of a waiver.” These two cases, last cited, were again followed in Nichols v. Larkin, 79 Mo. 265.
It is not easy to reconcile the case of Russell v. Ins. Co., supra, with the case which preceded it in 52 Mo., nor with those which have followed. But so-
We do not consider the question whether such a subsequent parol modification of the written contract would be within the statute of frauds. The judgment is affirmed.