130 Mo. App. 258 | Mo. Ct. App. | 1908
Defendant signed and delivered to plaintiff the following agreement:
“$6,500. Feb. 10, 1906.
130 acres.
68 acres bottom.
“By this I, Frank Neely, agree to pay to John Scriba in case he-sells-my farm or sends me a buyer, the sum of two hundred dollars ($200), if he sells inside of one year.
“J. F. Neely.”
After the agreement was signed, plaintiff wrote over it the date, “February 10, 1906,” and swore the paper was signed on or about that date. Defendant testified it was made at a much earlier date hut was in force at the time defendant sold his land. Both parties testified that the sum for which plaintiff, was authorized to sell defendant’s land was $6,500. In September, 1906, defendant sold his farm to Joseph Schloman for $5,200. Schloman was not introduced to defendant by plaintiff nor was plaintiff, instrumental in making the
The cause originated in a justice’s court and in due course was appealed to the circuit court. The trial in the circuit court resulted in a verdict for defendant which, on plaintiff’s motion, was set aside and a new trial granted, on the ground that the verdict was against the weight of the evidence. Defendant appealed from the order granting a new trial. Defendant’s contention is that on plaintiff’s own evidence he cannot recover for the reason his evidence shows the contract sued on is without any consideration. The evidence of both parties shows that at the time defendant sold his farm his written contract with plaintiff was still in force and had sometime to run. Plaintiff’s contention is that the surrender, or cancellation, of his contract would have been sufficient consideration to
Kansas City Court of Appeals, in German v. Gilbert, 83 Mo. App. 1. c. 416, states the general rule thus: “That in order to support an action the promise must have been made upon legal consideration moving from the promisee to the promisor; there must be either a benefit to the maker of the promise or the waiver of some legal right, a loss, trouble or inconvenience to, or a* charge or obligation resting upon the party to whom the promise is made. [Givens v. Corse, 20 Mo. App. 132; Brownlow v. Wollard, 66 Mo. App. 636; Houck v. Frisbee, 66 Mo. App. 16; Block v. Elliott, 1 Mo. 275; Halsa v. Halsa, 8 Mo. 303; Hudson v. Busby, 48 Mo. 35; Williams v. Jenson, 75 Mo. 681; Beach on Contr., sec. 5, note 1.] Consideration means
Plaintiff’s evidence brings the case clearly within the rule and he is entitled to recover, if he is able to satisfy a jury of the truth of the allegations of his complaint, of which there is substantial evidence in the record. However, there is countervailing evidence, but we agree with the learned circuit judge that the verdict is against the weight of the evidence, and affirm the judgment awarding a new trial.