45 Mo. App. 622 | Mo. Ct. App. | 1891
— The petition of the plaintiff alleged amongst other things that the deceased was in the possession of one hundred and sixty acres of land in Adair county as tenant by the curtesy, and that the defendant was the owner thereof subject to such curtesy; “that, the defendant being desirous of buying the possession of and said decedent’s right to the possession and use of said land, it was agreed between them that said deceased would remove Jrom said land and place defendant in the full and peaceable possession thereof, and that said deceased would not claim any further interest or title thereto. In consideration of which the defendant agreed to pay to said deceased the sum of $300 with ten-per-cent, interest in two years from date ; That under and in accordance with said contract the said deceased removed from said land and placed defendant in the possession thereof; he, defendant, removing to and upon said land and has remained thereon, cultivating and using same ever since; that defendant has paid to said deceased the interest on said sum for two
There was evidence introduced, the tendency of which was to show that about the first of March, 1886, Z. Reynolds, Sr., was tenant by the curtesy of a farm in Adair county, and defendant, his son, was owner of the fee. The old man sold his interest to the son for' $300, to be paid within two years with ten-per-cent, annual interest. The father placed the son in complete possession, under the contract, and removed from the farm himself. The son continued in possession, using and enjoying the products of the farm under the contract, until the father’s death ; paid the interest for the two years that had elapsed before his death, and then refused to pay because he did not get a deed. There was a trial by jury, and a verdict and judgment for plaintiff. The defendant has appealed.
I. The first point which is urged by the appealing defendant, as a ground for reversal, is the action of the trial court in permitting over his objections any evidence to be introduced to sustain the allegations in the petition as the case there stated was within the interdict of the statute of frauds. The petition alleged that the deceased placed the defendant under the agreement of sale in the full and peaceable possession of the land in consideration of which the defendant agreed on his part to pay the deceased the sum of $300, with interest thereon, two years after date ; that defendant after being placed in possession so remained thereon, using and cultivating the same, and had paid the deceased two years’ interest on the $300 purchase money. This action is for the recovery of the purchase money. It has never been' held in this state that the vendee must sign a note or memorandum in writing in order to bind him to pay the purchase money. His verbal promise to pay the purchase money is binding if supported by
II. The court did not err in rejecting the- offer of the defendant to testify in the case in his own behalf. The other party to the contract in issue and on trial was dead. The defendant was incompetent as a witness under the statute, Revised Statutes, section 8918, and if it was his purpose to testify to any special matter, about which he was a competent witness he should have called the attention of the court thereto. He should have in his offer brought himself within some exceptions to the statutory rule. His offer should have been specific. Not having done this, the presumption which attends the acts and doings of courts of justice must prevail here. Fitzgerald v. Barker, 96 Mo. 661; Beshoff v. Strumpf, 10 Mo. App. 476. It is true that the defendant stated that “we offer to contradict these declarations he is said to have made.” This offer was too general. It did not specify the particular declaration of any witness. Too much was left to conjecture to warrant us in saying the court erred in rejecting such an offer.
III. As to the plaintiff’s first instruction, which told the jury under the pleadings, they could not consider any evidence tending to prove that the contract alleged in the petition had been rescinded or abandoned by the parties, it may be said that, as the defendant did not plead a rescission or abandonment, but denied the existence of the contract, he could not avail himself of
The judgment is affirmed.