171 Mo. App. 396 | Mo. Ct. App. | 1913
OPINION.
(after stating the facts).— As a preliminary consideration, appellant contends that his peremptory instruction should have been given for the reason that plaintiff had theretofore brought a suit for the specific performance of this contract and that a decree was rendered in favor of the defendant in which the court refused to enforce the performance of the contract and made no allow-
Appellant’s principal contention is as follows: “Eespondent, having declared upon an oral contract for the exchange of land for land and merchandise of the value of thirty dollars or more, the contract must be shown to be fully executed or it is within the Statute of Frauds.”
It will be observed that this oral contract sought to effect an exchange of property, both real and personal. Such contracts are within the Statute of Frauds in this State. [Beckmann v. Mepham, 97 Mo. App. 161, 70 S. W. 1094; 20 Cyc. 239; Hackett v. Watts, 138 Mo. 502, 40 S. W. 113; Chambers v. Lecompte, 9 Mo. 575; Purcell v. Coleman, 18 L. Ed. (U. S.) 435; Rice v. Peet, 15 Johns. 503.]
One of the essential elements which the jury were told in the instructions they must find in order to return a verdict for the plaintiff was that plaintiff had performed all the conditions of the contract on his part to be performed, and their finding was for the plaintiff. Therefore, in deciding whether the contract was within the Statute of Frauds, we must take it as conceded that plaintiff delivered possession of the farm to Smith, the tenant, after the sale and loss on plaintiff’s personal property under the oral contract, such concession not being made, however, as to the delivery, of the deed. Such part performance did not take the contract out of the Statute of Frauds. [Adams v. Townsend, 42 Mass. 483.] Indeed, the courts of this tSate have held that the doctrine of part performance of a contract does not take it out of the operation of the Statute of Frauds when
In the cases which we have examined where the courts have decreed specific performance of oral contracts for an exchange on account of part performance (School District v. Holt, 226 Mo. 406, 126 S. W. 462; Brown v. Bailey, 28 Atl. 245; Reynolds v. Hewett, 27 Pa. St. 176; Moss v. Culver, 64 Pa. St. 414) the facts disclosed that the exchange and possession given thereunder was given and accepted by both .parties, and these cases can be clearly distinguished from the case before us, first, because, of course, that is an action at law and the doctrine of part performance
It is undisputed that defendant never delivered his deed nor possession of his stock of goods and store building, but refused to go ahead with the deal.
The evidence shows that plaintiff had the auction sale of his personal property in accordance with the oral contract and tendered the proceeds to the defendant which was not accepted, and afterward sold the farm to another, and at the time this suit was instituted defendant had nothing in his possession or under his control that passed to him from the plaintiff by virtue of the oral contract. The plaintiff seeks to charge him with the loss on the sale of the personal property on the farm and the expense of moving off when Smith took possession.
It is stated in Lydick v. Holland, 83 Mo. 703, 707; “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.]” In that case it is shown that the plaintiff, owning a cer tain tract of land, would not sell it unless he could buy a tract owned by the defendant; that defendant agreed to sell him his land for a stated price, and that relying on that agreement plaintiff sold his tract of land. After this was done, defendant repudiated the agreement and refused to make a deed to plain
The recent case of Boone v. Coe, 154 S. W. 900, decided by the Court of Appeals of Kentucky, lays down the rule, citing numerous authorities in support, that if one party receives services, or benefits, or property, from another who is performing a verbal contract, which is within the Statute of Frauds, the latter may recover at law upon the quantum meruit as the law implies a promise to pay; but that where one party is merely put to a loss by virtue of his performance of a verbal agreement within the statute, and the other party has received no benefit thereunder, the party sustaining the loss cannot recover, the reason being that the law implies a promise to pay for something of value received from another, but the Statute of Frauds does not imply that one of the parties to a contract which falls within it shall pay for the loss or damage occasioned by the other’s performance where he receives nothing under the contract.
This case does not fall within the rule laid down in Maupin v. Railway Co., 171 Mo. l. c. 196, 71 S. W. 334; Cape Girardeau & C. R. Co. v. Wingerter, 124 Mo. App. 426, 101 S. W. 1113; Mitchell v. Branham, 104 Mo. App. 480, 79 S. W. 739, and numerous other cases in this State, which hold that an oral contract which has been fully performed is taken out of the
The testimony of Sands, the notary, was that the deeds were left at the bank to be kept until the deal was closed. The general rule of law is that an undelivered deed is not a sufficient memorandum of a contract of sale of land to take the same out of the Statute of Frauds, and this doctrine applies to deeds delivered in escrow. [20 Cyc. 257; Townsend v. Hawkins, 45 Mo. 286.]
'The oral evidence in this case shows that deeds of some kind were made by the respective parties and placed in the hank in escrow. These deeds were not put in evidence and the contents of the same are not shown. Even though a deed deposited in escrow were a sufficient memorandum of a sale to take it out of the operation of the Statute of Frauds, it is not shown that these deeds, considered as memoranda of the sale, contain a description of the laud, the. names of the parties, the purchase price, and other elements necessary to constitute a sufficient memorandum. [Moseley v. Insurance Co., 109 Mo. App. 464, 84 S. W. 1000.]
In 20 Cyc. at page 284, it is stated that “th(¡ primary effect of the Statute of Frauds is to prohibit
It will be noted that while plaintiff’s petition alleged that defendant took possession of the farm on the day the oral contract was made, and rented it to Smith by parol, there is no evidence that defendant himself ever took actual possession of the farm, nor did Smith, the alleged tenant, move upon the farm until after the alleged sacrifice had been made and the expense incurred on the sale of plaintiff’s personal property, which, under the evidence, is the substantial loss shown. There having been no actual possession taken by the defendant,, and the deed being undelivered, defendant could not be charged with either actual or constructive possession prior to the time the loss was sustained.
Neither do the facts alleged in the petition nor those shown by the evidence take this .case out of the operation of the Statute of Frauds on the theory of equitable estoppel — in that although defendant was not bound by any writing to perform his part of the oral agreement, yet he stood by and saw the plaintiff sell his property at a sacrifice and go to expense in moving off the farm. There is no allegation or proof that defendant in the beginning induced the plaintiff •to make the oral agreement with a fraudulent intent of not carrying it out, and in the absence of this element the principle of estoppel in pais could not be invoked against the defendant because the very contract which he is charged with having failed to perform is nonenforceable under the statute. [Kirk v. Middlebrook, 201 Mo. l. c. 289, 100 S. W. 450.] It has been held, that a promise within the Statute of Frauds cannot be made binding by way of estoppel, though acted upon. [Nichols v. Bank, 55 Mo. App. 81; Smith v. Smith Bros., 62 Mo. App. l. c. 601, 602; Wood v.
"VYe have with extreme caution examined the voluminous record in this case and have been at a disadvantage in not having been favored with a brief showing respondent’s view of the case. Issues should be sharply drawn in appellate practice, and in this day of public criticism of courts for delay, we do not look with favor upon a practice which requires us to brief one side of a case before proceeding to pass upon the errors complained of. Counsel in all cases are urged to pursue the regular way of trying their appeals.
For the reasons herein appearing, the judgment is reversed and the cause remanded with directions to the circuit court to set aside its judgment herein and enter a judgment for the defendant.