6 Mo. App. 546 | Mo. Ct. App. | 1879
delivered the opinion of the court.
The question here involved is whether the demurrer to' the petition was properly sustained. The substance of it is, that the plaintiffs were owners in fee of a lot of ground, upon which were encumbrances created by two deeds of trust which also covered the lot next west; that the defendant told plaintiffs that if they would induce the holder of the encumbrances to surrender the same, and in lieu thereof take two deeds of trust, each for one-half of the amount of the first deed, the one to cover the plaintiffs’ east lot only, the other to cover the lot next west alone, he (the defendant) would assume the deed of trust upon the plaintiffs’ east lot, and would also pay to the plaintiffs for their east lot $3,100 in cash, and $50 towards the expense of effecting the change of encumbrances ; that on the faith of these representations and such request, the plaintiffs effected the change, and paid $150 therefor; that upon demand made and deed in fee-simple tendered, the defendant refused either to execute the encumbrance as agreed, or pay the money for the land or expenses. The petition alleges that the defendant’s representations were false and fraudulent; that the plaintiffs were put to expense, loss of time* etc., and damages in the sum of $250.
Upon facts here pleaded, the law will raise 'a cause of action, and it was error to sustain the demurrer. The principal agreement may have been in writing; and even if it was not, this is not a declaration upon that agreement. It. is clear that no action for damages lies for non-performance-of that agreement, if we suppose it to have been oral; but the material question upon demurrer was whether facts were pleaded upon which the law would raise any action. Here, from the facts stated, the law will imply a promise which, though relating partly to the same subject-matter, is-
The judgment is reversed and the cause remanded.