6 S.W. 263 (Mo. 1887), Lanitz v. King

Citation:6 S.W. 263, 93 Mo. 513
Opinion Judge:Black, J.
Party Name:Lanitz, Appellant, v. King
Attorney:T. K. Skinker for appellant. Geo. D. Reynolds for respondent.
Case Date:December 19, 1887
Court:Supreme Court of Missouri

Page 263

6 S.W. 263 (Mo. 1887)

93 Mo. 513

Lanitz, Appellant,



Supreme Court of Missouri

December 19, 1887

Appeal from St. Louis City Circuit Court. -- Hon. A. M. Thayer, Judge.


T. K. Skinker for appellant.

(1) The time for the payment of the price was, by mutual consent, extended until respondent should remove the defect in his title, or appellant consent to take a warranty deed with such defect. (2) "Where an agreement, in writing, is to be performed on a certain day, and the parties agree to enlarge the time, the declaration, on the day stated in the agreement, though the evidence is of a different day, will support the action." Thresh v. Rake, 1 Esp. 53; Russell v. Insurance Co., 55 Mo. 585; Insurance Co. v. Kyle, 11 Mo. 278; Lawrence v. Dole, 11 Ver. 549; Elfranks v. Seiler, 54 Mo. 134. (3) Where an action is brought upon a written contract, required to be in writing by the statute of frauds, and the performance thereof has been extended by an oral agreement, or waived by the conduct of the parties thereto, the proof by the plaintiff of such oral agreement, or waiver, and the performance by him thereof, or of his offer and readiness to perform, is not considered a variance from the declaration, nor as making the same obnoxious to the provisions of the statute; and the action is required to be brought upon the written contract, and not upon the same as modified by the oral agreement. Browne on Stat. of Frauds (Ed. 1870), secs. 423, 424, 425; Cummings v. Arnold, 3 Met. (Mass.) 489; Stearns v. Hall, 9 Cush. (Mass.) 31; Lerned v. Wannemacher, 9 Allen (Mass.) 418; Whittier v. Dana, 10 Allen (Mass.) 326; Thresh v. Rake, 1 Esp. 53; Neil v. Cheves, 1 Bailey (S. C.) 537; Phillips on Evid. (5 Am. Ed.) 694; Cuff v. Penn, 1 M. & S. 21; Russell v. Ins. Co., 55 Mo. 585; Ins. Co. v. Kyle, 11 Mo. 278.

Geo. D. Reynolds for respondent.

(1) While the authority of an agent to sell land need not be in writing, his authority to sign a memorandum of the contract must be shown. Browne on Statute of Frauds (4 Ed.) section 370; Stewart v. Wood, 63 Mo. 252; Duffy v. Hobson, 40 Cal. 240. (2) A court of equity will not enforce a doubtful title on a purchaser. (3) The respondent denies any new contract was made as claimed by plaintiff, but, if such was the case, such new contract is within the statute of frauds, and is not shown to have been reduced to writing. It concerns land, and is, therefore, void. 1 Smith's Lead. Cas., top page 575; Wildbahn v. Robidoux, 11 Mo. 659; Miltenberger v. Morrison, 39 Mo. 71. (4) It is a conclusive...

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