O'Day v. Conn

Citation131 Mo. 321,32 S.W. 1109
PartiesO'DAY v. CONN.
Decision Date26 November 1895
CourtUnited States State Supreme Court of Missouri

Appeal from circuit court, Greene county; James T. Neville, Judge.

Ejectment by E. C. O'Day against David Conn. There was a judgment for plaintiff, and defendant appeals. Affirmed.

L. O. Nieder, Alex. Young, and J. E. & J. F. Merryman, for appellant. O. H. Travers, for respondent.

MACFARLANE, J.

The suit is ejectment to recover the S. W. ¼ of the N. W. ¼ of section 26, township 29, range 23, in Greene county. The answer, after admitting possession and denying generally the other allegations of the petition, pleads an equitable defense. This defense charges that on and prior to the 19th day of May, 1887, defendant was in possession of the land under a contract of purchase from the San Francisco Railroad Company, and on said day he employed plaintiff as his agent and attorney for the purpose of securing from said company a deed of conveyance thereto; that the terms of the contract were such that plaintiff undertook to furnish whatever money should be required to pay for the land, which amount defendant should secure to plaintiff by a deed of trust on the land; that afterwards, in October of said year, plaintiff represented to defendant that the amount due, and which he was required to pay said company in order to obtain a deed, was $970, for which amount defendant made to plaintiff his note, and a deed of trust on the land to secure the same; that in fact there was only due on the contract, and plaintiff only paid said company, the sum of $400; that defendant afterwards, at different times, paid on said note an amount sufficient to pay said sum of $400 and all interest thereon, but plaintiff refused to release said land from the deed of trust; that plaintiff afterwards, in November, 1891, caused said land to be sold under the powers contained in said deed of trust, and himself became the purchaser, to whom the trustee executed and delivered a proper deed of conveyance. The prayer was that plaintiff be decreed to hold the land in trust for defendant, and that the title be vested in him, and for general relief. The reply denied the new matter. Upon a trial the court found for plaintiff, and gave him judgment for the possession of the land, and defendant appealed.

The first error assigned by the appellant is that the court denied him a jury trial of the issues. Respondent insists that no such right was demanded. An examination of the record discloses the fact that a jury trial was waived by the parties. It is well settled in this state that a party may waive his constitutional right to a jury. Merrill v. City of St. Louis, 83 Mo. 252; Chicago, M. & St. P. R. Co. v. Randolph Town-Site Co., 103 Mo. 469, 15 S. W. 437, and cases cited. But, as there seems to be some misunderstanding between the parties as to whether a jury was in fact demanded and refused, we may assume that defendant is right in his assertion, and still we are of the opinion that no error was committed. The answer of defendant was a virtual admission of plaintiff's legal right to possession, but undertook to avoid it by showing that it was held by plaintiff in...

To continue reading

Request your trial
22 cases
  • Demay v. Liberty Foundry Co., 30153.
    • United States
    • United States State Supreme Court of Missouri
    • March 31, 1931
  • Anderson v. Whipple
    • United States
    • United States State Supreme Court of Idaho
    • January 30, 1951
    ......362; Crocker v. Carpenter, 98 Cal. 418, 33 P. 271; Mathews v. Sniggs, 75 Okl. 108, 182 P. 703; Card v. Deans, 84 Neb. 4, 120 N.W. 440; O'Day v. Conn, 131 Mo. 321, 32 S.W. 1109; Howard v. Stanolind Oil & Gas Co., 197 Okl. 269, 169 P.2d . Page 357 . 737; Norback v. Board of Directors, 84 Utah ......
  • De May v. Liberty Foundry Co.
    • United States
    • United States State Supreme Court of Missouri
    • March 31, 1931
  • Sikes v. Riga
    • United States
    • Court of Appeal of Missouri (US)
    • August 13, 1927
    ......v. Goodwyn, 208 S.W. 110;. Jackson v. Chicago Ry. Co., 54 Mo.App. 636, 642-3;. Strop v. Hughes, 123 Mo.App. 547, 555-6;. O'Day v. Conn, 131 Mo. 321, 327-8. (c) Extension. of time of payment of an indebtedness is good consideration. for giving security to secure the payment of said. ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT