Green v. Ditsch

Decision Date23 February 1898
Citation44 S.W. 799,143 Mo. 1
PartiesGreen v. Ditsch, Appellant
CourtMissouri Supreme Court

Appeal from Jackson Circuit Court. -- Hon. E. L. Scarritt, Judge.

Affirmed.

L Traber and L. H. Waters for appellant.

(1) The contract, if one was made, which defendant denies, was for the sale of land and was not in writing and is void under section 5186, Revised Statutes 1889. (2) There was no part performance on the part of Peter W. Ditsch or the appellant to take the case out of the statute of frauds. 1 Story, Eq Jur. [10 Ed.], sec. 764; Sitton v. Ship, 65 Mo. 297; Cox v. Cox, 29 Pa. St. 375; Paris v. Haley, 61 Mo. 453; Emmel v. Hayes, 102 Mo. 186; Berry v. Hartzell, 91 Mo. 132; Rogers v. Wolfe, 104 Mo. 1; Underwood v. Underwood, 48 Mo. 530. (3) The contract for the sale of the property, if any was made, was through the brother and agent of respondent, and Jonas Benton, also his agent and employee, for and in behalf of said John J. Green and Peter W. Ditsch on behalf of himself who, as plaintiff alleges, "died pending the performance of said contract." The evidence showing that the plaintiff took no part in the sale except through said T. J Green and said Jonas Benton, they were disqualified as witnesses for plaintiff and they should not have been permitted to testify being "the parties to the contract" in contemplation of the law. Banking House of Wilcoxson v. Rood, 132 Mo. 256; Robertson v. Reed, 38 Mo.App. 32; Stanton v. Ryan, 41 Mo. 510. (4) The petition does not state facts sufficient to constitute a cause of action. The petition should have affirmatively stated, not "that Henry Ditsch was the heir of Peter W. Ditsch," but that he was the only heir, and that allegation should have been proved before a recovery could be had. The general denial was sufficient to meet this allegation. Brown v. Hoffmeister, 71 Mo. 413; Pier v. Heinrichoffen, 52 Mo. 333; Scott v. Robards, 67 Mo. 289; Baker v. Railroad, 91 Mo. 87. (5) The undisputed evidence shows that Peter W. Ditsch made the approval of the title by his attorney, a condition precedent to the purchase of said land; the title was not approved, and no binding contract resulted. Duke v. Compton, 49 Mo.App. 304; Taylor v. Von Scudder, 107 Mo. 206; Brewington v. Merker, 31 Mo.App. 348; Esterly Machine Co. v. Criswell, 58 Mo.App. 471; Zaleski v. Clark, 44 Conn. 218; Brown v. Foster, 113 Mass. 136; Wood v. Reaping Co., 50 Mich. 505; Church v. Shanklin, 95 Cal. 626. (6) The terms and conditions of the deed of trust could not be contradicted or varied by parol. Law of Evidence, chap. 12, sec. 920, and notes; 1 Greenl., secs. 1040-1071; Bunce v. Bank, 43 Mo. 266; Helmich v. Gehrke, 56 Mo. 79; Burris v. Blair, 61 Mo. 149; Thompson et al. v. Irwin et al., 42 Mo.App. 421; Black River Lumber Co. v. Warner, 93 Mo. 484.

Karnes, Holmes & Krauthoff for respondent.

(1) Thomas J. Green and Jonas W. Benton were competent witnesses. They were competent at common law. This fact at once completely distinguishes the present from the case of Wilcoxson & Co. v. Rood, 132 Mo. 256. There the witness in question was disqualified at common law. The question was whether the statute had removed the disability. That case does not decide that our statute was intended or had the effect to disqualify any person who could have testified without a statute on the subject. The cases are clear and to the point that our statute is an enabling and not a disabling provision, and that all persons who were competent prior to its enactment are still competent. Bates v. Forcht, 89 Mo. 121; Leach v. McFadden, 110 Mo. 588; Baer v. Pfaff, 44 Mo.App. 39; Leahy v. Simpson, 60 Mo.App. 83. (2) The answer of the defendant denies that any contract had been made between the parties and pleads specially that if one should be found to have been made, the same was void under the statute of frauds. This is an incongruous pleading. Its legal effect is to admit that the contract was made as alleged in the petition. The special defense qualifies the general denial to this extent. (3) It has long since been settled that acts of part performance on the part of the plaintiff, done under and in pursuance to the parol contract, will take the case out of the operation of the statute. Hays v. Railroad, 108 Mo. 550; Sharkey v. McDermott, 91 Mo. 652; Dozier v. Maston, 94 Mo. 332; White v. Ingram, 110 Mo. 482; Fuchs v. Fuchs, 48 Mo.App. 23; Foster v. Kimmons, 54 Mo. 488; Johnson v. Hurley, 115 Mo. 513; Fry, Spec. Perf. [3 Am. Ed.], sec. 556; 2 Story, Eq. Jur., sec. 759. (4) The doctrine is now established that if the parol agreement provides that the plaintiff shall make certain repairs or alterations, or construct certain additions or extensions, the doing of these things, in whole or in part, constitutes a sufficient part performance to take the case out of the statute. Shillibeer v. Jarvis, 8 DeG. M. & G. 87; Mundy v. Jolliffe, 5 Myl. & Cr. 174; Farrall v. Davenport, 3 Giff. 371; Nunn v. Fabian, L. R. 1 Ch. App. 35, 40; Williams v. Evans, L. R. 19 Eq. Cas. 557; Pom. Spec. Perf., sec. 126 and cases cited; Sutherland v. Briggs, 1 Hare, 31; Farrall v. Davenport, 3 Giff. 368; Sweeney v. O'Hara, 43 Iowa 37. (5) He was not bound to formally tender a deed, in view of the conceded fact that Ditsch refused to carry out the contract and that he would not have accepted the deed if actually tendered. Deichmann v. Deichmann, 49 Mo. 109; Westlake v. St. Louis, 77 Mo. 51; Black River Lumber Co. v. Warner, 93 Mo. 388; Girard v. St. Louis Car Wheel Co., 123 Mo. 371; Bless v. Jenkins, 129 Mo. 647; Bank v. Read, 131 Mo. 553. (6) It is urged that Green's deed of trust estops him to claim that there was a then existing contract of sale between the parties. But the cases cited to support the proposition are only instances in which it is held that a given written contract has the effect to merge antecedent agreements. Black River Lumber Co. v. Warner, 93 Mo. 384; Leahy v. Witte, 123 Mo. 207; Cobb v. Day, 106 Mo. 295; Schradski v. Albright, 93 Mo. 48. (7) The fact that Henry Ditsch was the sole heir of P. W. Ditsch was not, in any proper sense, a constitutive one. The objection can not be raised by an objection to the introduction of any evidence; nor by motion to dismiss; nor by instruction; and most certainly not in this court for the first time. Bliss, Code Pl. [2 Ed.], sec. 411; Butler v. Lawson, 72 Mo. 247; Horstkotte v. Menier, 50 Mo. 160; Reugger v. Lindenberger, 53 Mo. 366; Rickey v. Tenbroeck, 63 Mo. 570; Dunn v. Railroad, 68 Mo. 272; State v. Sappington, 68 Mo. 457; State v. Berning, 74 Mo. 99; Walker v. Deaver79 Mo. 672.

Macfarlane P. J. Brace, P. J., and Robinson and Williams, JJ., concurring.

OPINION

Macfarlane, P. J.

This is a suit in equity for the specific performance of an alleged contract for the sale of a lot in Kansas City on which there was at the time a dwelling house.

The petition charges that on the fifteenth of November, 1890 plaintiff was the owner of the lot, describing it, and on said day a contract between him and P. W. Ditsch was entered into "by the terms of which the plaintiff agreed to sell, and the said P. W. Ditsch agreed to buy said property at and for the price and sum of three thousand dollars, and that it was further agreed that an addition to the house then standing on said premises should be constructed by the plaintiff at the price not exceeding five hundred dollars, which amount said Ditsch should repay to the said Green. It was further agreed that the said contract should be consummated when said addition to said house should be completed. That plaintiff proceeded at once to the erection of said addition, and completed the same at the cost of five hundred dollars, and that it was agreed between the parties that as a means to pay plaintiff for said lot before the consummation of said contract and the erection of said addition, that the said Ditsch should pay to the plaintiff the said sum of three thousand dollars, and the plaintiff should execute to said Ditsch a note for said amount, secured by deed of trust on said property. That said note and deed of trust were accordingly executed, and plaintiff has completed said addition and has complied with all the terms and conditions of said contract on his part. That pending the said performance of said contract the said P. W. Ditsch departed this life, leaving the said defendant as his heir, and the said defendant thereupon assumed the said contract, and has reaped, and is now enjoying the benefits thereof, having entered into the possession of said property under said contract and accepted the additions so erected by plaintiff as aforesaid, but that the said defendant failed and refuses to carry out and perform his part of said contract, and on the contrary thereof undertook to cause a sale to be made under the terms of the deed of trust aforesaid on the twenty-eighth day of December, 1891, and claims to have acquired the title to said property under and by virtue of said trustee's sale. But the plaintiff alleges that it was a part of the contract hereinbefore mentioned, that said deed of trust should not be thus foreclosed, but should simply be held to secure the performance by the plaintiff of his part of the contract for the conveyance of said lot and the erection of said addition for the aggregate sum of thirty-five hundred dollars. Plaintiff has at all times been ready and willing to comply with his part of said contract, and he prays the court to require the defendant to specifically perform his part thereof; to set aside the trustee's sale, to cancel and annul the plaintiff's said note and the deed of trust given to secure the same; to require the defendant to pay the balance of the purchase money, to wit, the sum of five hundred dollars with interest...

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