Lydick v. Holland

83 Mo. 703 | Mo. | 1884

Blade, J.

This was a suit for the specific performance of a parol contract. A demurrer to the petition was sustained; and the only question is, does the petition state facts sufficient to constitute a cause of action % It alleges that the parties each owned forty acres of land ; that plaintiff: had an opportunity to sell his land and notified the defendant of this, and of the further fact that he would not sell, except upon the condition that defendant would seE his land to plaintiff: and give possession on the first of March following, to which defendant assented, and told plaintiff to go on and make the sale; that plaintiff did make the sale of his land and thereupon went to the defendant and made an agreement with him, whereby the defendant sold his land to plfiintiff for one thousand dollars, twenty-five of which was paid down, the balance to be paid on the first of March, when defendant was to give full possession ; that plaintiff completed the transaction with his vendee, and on the first of March tendered to the defendant the balance of the one thousand dollars, and demanded a deed and possession, all of which was refused. ...

1. The contract being in parol is within the statute of frauds and cannot be enforced, unless upon the ground of part performance. Part payment of the consideration is conceded to be insufficient to take such cases out of the statute. The only other act relied upon in this case is the fact that the plaintiff has performed the contract which he made with his vendee. The petition leads to the conclusion that the sale by the plaintiff was made before the contract in question was consummated. The contract thus performed was not the one in controversy, though ancillary thereto. The law is well settled that the performance of a contract, which is preparatory and ancillary to the one sought to be enforced, is not sufficient part performance to take a parol contract out of the statute of frauds. Williams v. Morris, 95 U. S. 444; Parker v. Heaton, 55 Ind. 1; Fry on Spec. Per. of Con., secs. 412, 414.

2. Plaintiff in error - insists that though he may not be entitled to a specific performance, yet he should be allowed damages for a breach of the contract, and cites Holland v. Anderson, 38 Mo. 55, and Hamilton v. Hamilton, 59 Mo. 232, which hold that where a court of equity acquires jurisdiction, it wül proceed to complete justice between the parties though it consist in awarding damages. Here the plaintiff has no case in equity. He does not fail because of a defect in the defendant’s title, nor because defendant has put it out of his. power to perform the contract. The ground upon which he fails to have a specific performance is equally fatal to his demand for damages. Affirmed.

All concur.