Sursa v. Cash

Decision Date05 May 1913
Citation156 S.W. 779,171 Mo. App. 396
PartiesSURSA v. CASH.
CourtMissouri Court of Appeals

Plaintiff and defendant orally agreed on an exchange of plaintiff's farm for defendant's store property and goods. No written contract was made, but deeds were executed and placed in escrow. Plaintiff advertised a sale of his personal property on the farm and delivered possession to defendant's tenant, who, however, never took actual possession, and before the sale defendant notified plaintiff that he would not carry out the exchange. Held, that such acts did not constitute sufficient part performance to take the case out of the statute of frauds so that plaintiff could maintain an action for damages.

7. FRAUDS, STATUTE OF (§ 129) — EQUITABLE ESTOPPEL — STATUTE OF FRAUDS.

Where defendant did not induce plaintiff to make an oral contract for exchange of property with a fraudulent intent not to perform the same, the fact that plaintiff took certain steps to perform the contract before he was notified that defendant refused to perform was not sufficient to estop defendant to rely on the statute of frauds as a defense to an action for damages for nonperformance.

Robertson, P. J., dissenting.

Appeal from Circuit Court, Ripley County; J. C. Sheppard, Judge.

Action by Willis Sursa against C. N. Cash. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with directions.

The controversy in this appeal grew out of an unsuccessful attempt by plaintiff and defendant to exchange property. The defendant in the circuit court is appellant here.

The amended petition alleged that respondent had entered into an oral contract with appellant to exchange his farm for a house and lot in the town of Naylor, together with a stock of goods in said house; that the agreed price of the house and lot was $800; the stock of goods was to be invoiced at the first cost to appellant; that in consideration thereof respondent was to convey to appellant his farm in Ripley county at the price of $3,000, less an incumbrance of $400, and sell his personal property on the farm, and after paying the proceeds of the sale to appellant, either in money or notes payable to appellant, to execute a mortgage on the house and lot for the balance, to be due in nine months from the taking of said invoice; that in pursuance thereof respondent and appellant executed deeds to their respective parcels of real estate and placed them in the bank of Naylor, together with the abstract of title to respondent's farm, to be delivered when the invoice of appellant's stock of merchandise had been taken; that respondent sold his personal property at auction as agreed upon, tendered appellant the proceeds thereof, delivered the possession of the farm to appellant, and offered to take the invoice of appellant's stock of merchandise and execute the mortgage for the balance, if any, and requested the delivery from defendant of the warranty deed conveying the lot and store building, and requested the possession of the stock of goods at the invoice price according to the terms of said agreement; that appellant refused to comply with the terms of the contract; and that he was damaged in the aggregate $600, setting forth the several items of damage.

Appellant filed a demurrer to the amended petition setting out that the petition did not state a cause of action and that the contract pleaded was within the statute of frauds, which was overruled. Thereupon the appellant filed an answer containing: (1) A general denial; (2) a plea that the contract relied upon by respondent was within the statute of frauds, not being in writing; and (3) the defense that respondent was barred from prosecuting his action by reason of a judgment in equity against him, whereby he sought to enforce specific performance of the same contract. And, before the introduction of any evidence in the cause, appellant made formal objection to the taking of any testimony, stating the same grounds as were alleged in the demurrer. The defendant requested and the court refused to give a peremptory instruction at the close of the plaintiff's evidence, and again at the close of all the evidence in the case. The jury returned a verdict for the plaintiff for the sum of $200.

There is no dispute between the parties that there was an oral agreement concerning an exchange of the plaintiff's farm for the defendant's store building and lot and a stock of goods which was worth approximately $3,000. There is a direct conflict in the evidence as to whether plaintiff delivered possession of the farm to defendant. Plaintiff's testimony is that they made the trade; that he was to sell his personal property at auction, and that he was to deliver the proceeds to defendant in cash, or sale notes made payable to defendant; that they were then to take an invoice of defendant's stock of goods, and, if there was a balance due the defendant, plaintiff was to give defendant a note secured by a mortgage on the store building. Plaintiff says he delivered possession of the farm to defendant the day the trade was made, and that defendant thereupon orally rented the farm to one Smith, and Smith testified that defendant told him the trade was made, and that he was able to rent him the farm. Plaintiff testified that he surrendered possession to the defendant, and that it was agreed that he was to let Smith have the place immediately after the sale of the personal property at auction. Smith admitted that he never paid any rent to either defendant or plaintiff.

Davis, the bank cashier, testified that defendant made a signed application to him for a loan on the Sursa farm and signed a sworn affidavit that he owned it.

Defendant testified that the trade was not consummated; that he did go and look at plaintiff's farm and agreed to go ahead and make the deeds the next day; that he told plaintiff he would make the trade if everything was all right, and that they did make the deeds and put them in escrow in the bank to be held until the deal was closed; that subsequently, after the deeds had been made and, with plaintiff's abstract, deposited in escrow, but before plaintiff had his auction sale and before the day set for beginning the invoice of defendant's stock of goods, he (the defendant) discovered through the bank's attorney (who later became his attorney) that there were some flaws in the title to plaintiff's farm, and that he then went several miles into the country and notified the plaintiff that he would not trade, and for plaintiff to call off his sale of the personal property, but that plaintiff said he was going ahead anyhow; that plaintiff never delivered any cash or notes to him; and that he never delivered possession of the lot and store building and stock of goods to plaintiff.

Plaintiff's version is that defendant came to him and said his (defendant's) deed was not good, and that defendant never said anything about the plaintiff's abstract not showing good title, and that defendant did not tell him to call off the auction sale; that he had such sale and deposited the proceeds in the bank ($300 in cash and about $90 in sale notes made payable to the defendant), and that he then offered to take the invoice of defendant's stock of goods, but that defendant's attorney, who was in the store at the time, refused to go ahead, saying they were not going to trade; that his (plaintiff's) deed was "no account"; that he replied that if it was not good he would try and make it good; but that the attorney said they were not going to trade anyhow. Plaintiff testified that after his auction sale Smith came on the place. The evidence shows that plaintiff subsequently sold the farm to a man named Roberts.

A notary named Sands prepared the deeds for plaintiff and defendant and took their acknowledgments, and he testified for plaintiff that he heard the parties discussing the contract at the time, and continuing: "Mr. Cash and Mr. Sursa wanted me to write out a contract between them in regard to the transaction, and Mr. Sursa was wanting to get off on the train and I would have to write it in a hurry; and I told him that I would not have time to write up a contract like they wanted by the time the train came. * * * They said they didn't have time." Consequently the contract was not reduced to writing. Sands further testified that plaintiff and defendant each took his deed and went down and deposited them with the cashier of the bank "and told him to hold them until the contract was finished or until the invoice was taken, so they would know what to do with them." He also testified that he was present at the time ...

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13 cases
  • Kludt v. Connett
    • United States
    • Missouri Supreme Court
    • March 2, 1943
    ...also insufficient because it was never delivered and at the time of Mr. Barks' death was in his sole and exclusive possession. Sursa v. Cash, 171 Mo. App. 396; Poplin v. Brown, 205 S.W. 411; Hain v. Burton, 118 Mo. App. 577; Logan v. Waddle, 315 Mo. 980; Browne on the Statute of Frauds (5 E......
  • State ex rel. Abeille Fire Ins. Co. v. Sevier
    • United States
    • Missouri Supreme Court
    • June 5, 1934
    ...therefore, void on its face. Such an order cannot be the basis of an estoppel. [Nichols v. Bank, 55 Mo. App. 81, 91; Sursa v. Cash, 171 Mo. App. 396, 409, 156 S.W. 779; Smith v. Smith Bros., 62 Mo. App. 596, 601-2; Wood v. Kansas City, 162 Mo. 303, 311, 62 S.W. 433.] The order being void, b......
  • State ex rel. Thompson v. Terte
    • United States
    • Missouri Supreme Court
    • December 8, 1947
    ... ... Railway Company and San Antonio, Uvalde & Gulf Railroad ... Company, was not res adjudicata. Long v. Long, 141 ... Mo. 352, 44 S.W. 341; Sursa v. Cash, 171 Mo.App ... 396, 156 S.W. 779; Wilson v. Hartford Fire Ins. Co., ... 300 Mo. 1, 254 S.W. 266; Fenton v. Thompson, 352 Mo ... ...
  • Kludt v. Connett
    • United States
    • Missouri Supreme Court
    • March 2, 1943
    ... ... never delivered and at the time of Mr. Barks' death was ... in his sole and exclusive possession. Sursa v. Cash, ... 171 Mo.App. 396; Poplin v. Brown, 205 S.W. 411; ... Hain v. Burton, 118 Mo.App. 577; Logan v ... Waddle, 315 Mo. 980; Browne ... ...
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