Aylor v. McInturf
| Decision Date | 07 December 1914 |
| Citation | 171 S.W. 606,184 Mo.App. 691 |
| Parties | J. W. AYLOR et al., Appellants, v. ANDY McINTURF, Respondent |
| Court | Kansas Court of Appeals |
Appeal from Vernon Circuit Court.--Hon. B. G. Thurman, Judge.
Judgment affirmed.
R. M Sheppard and M. T. January for appellants.
Scott & Bowker, George V. Farris and H. W. Currey for respondent.
--This is a suit to recover $ 5000 as the purchase price for the sale or assignment of a mining lease. The defense interposed the Statute of Frauds and also alleged that the sale was induced by means of fraudulent representations on the part of plaintiffs. At the close of the latter's evidence, the trial court sustained a demurrer and was about to have the jury return a verdict for defendant, when plaintiffs took a nonsuit with leave to move to set the same aside. This motion was afterwards made and overruled, and plaintiffs have appealed.
Defendant was a mine operator engaged in mining certain ground under a lease by which he paid a royalty of fifteen per cent to the owner of the land. Plaintiffs held a written mining lease on land immediately adjoining the land defendant was working. This lease ran for ten years from January 1, 1912, and provided that plaintiff was to mine the land and pay a royalty of fifteen per cent to the landowner.
Defendant verbally agreed to buy said lease from plaintiffs and pay $ 5000 therefor. The money was not to be paid until after the expiration of a year, and apparently the lease and the assignment thereof was not to be turned over or executed to defendant until the money was paid. At least no attempt was made to do so until after the year had expired and demand was made for the $ 5000.
This verbal agreement to buy the plaintiffs' lease was made in February, 1913, and defendant, who had mined on his own lease up to the edge of the land held by plaintiffs, was allowed by them to take possession of their leased land and to mine therein and take ore therefrom, which he did by the extension of cuttings from his own mine.
After the expiration of the year from the time the oral agreement was made, plaintiffs demanded payment of the $ 5000 and had their lease with their assignment thereof endorsed thereon ready to deliver to defendant whenever he paid the money. Defendant refused to pay for the lease claiming that the ground was not as plaintiffs had represented it to be. (They had prior to the verbal agreement drilled into it to ascertain the richness and body of the ore.) Thereupon plaintiffs brought this suit.
Appellants assume or proceed upon the theory that the suit is one in equity for specific performance. But we see nothing in the petition which makes it anything other than a suit at law to recover the $ 5000 alleged to be due on the contract.
The lease, which was the subject of the verbal agreement on which the suit is based, was an interest in land and ran for ten years. The contract for the sale of said lease, therefore, came within that provision of the statute which provides that no action shall be brought "upon any contract for the sale of lands, tenements, hereditaments, or an interest in or concerning them, or any lease thereof for a longer time than one year." [Sec. 2783, R. S. 1909.] Hence, said contract had to be in writing and signed by the party to be charged therewith. This is true without regard to when it was to be performed. [Donovan v. Brewing Co., 92 Mo.App. 341, l. c. 344.]
The contract for the purchase of the lease, so far as concerns the payment of the $ 5000, was not to be performed within one year. Whether plaintiffs were to execute the assignment before that time or not, certain it is that they did not offer to deliver the lease with the assignment until after the expiration of the year. The acceptance by the defendant of a valid assignment of the lease would obligate him to perform the terms of said lease during the years it had to run. For this reason, the contract to buy the lease involved an agreement upon the part of defendant to do things which were not to be performed within a year, but which were to be done within the unexpired term of nearly nine years. The agreement to buy the lease, therefore, came within another clause of the above mentioned statute which forbids suit "upon any agreement that is not to be performed within one year from the making thereof." Clearly this is true for both of the reasons mentioned above, namely, the payment of the money after the lapse of a year, and the assumption of the duties, contained in the lease necessarily following and involved in an acceptance by defendant of an assignment thereof. "A promise to pay money, as much as a promise to do any other act after the expiration of a year, is within the statute." [Browne on the Statute of Frauds, sec. 290.]
Plaintiffs concede that the contract in question was within the Statute of Frauds, but assert that it has been taken out of the operation of the statute by reason of the fact that defendant was put into immediate possession of the land and mines and took away a large amount of valuable ore. In other words, they rely upon the equitable doctrine of part performance. This doctrine that part performance will take a case out of the operation of the statute is purely one in equity and has no application in a suit at law. [Johnson v. Reading, 36 Mo.App. 306, l. c. 314.] No amount of part performance will remove the bar of the statute in a suit at law. [29 Am. & Eng. Ency. of Law (2 Ed.), 831; Chenoweth v. Pacific Express Co., 93 Mo.App. 185; Smith v. Davis, 90 Mo.App. 533.] Clearly the defendant has performed nothing so far as paying the money is concerned, and his entering on the land and mining thereon was only a partial performance of the duties and obligations involved in the acceptance of an assignment of the lease. Such partial performance on his part would not avail anything. [Shacklett v. Cummins, 178 Mo.App. 309, 165 S.W. 1145; Chicago Attachment Co. v. Davis Sewing Machine Co., 142 Ill. 171, 31 N.E. 438.]
With reference to the question what sort of performance plaintiffs have shown in putting defendant into possession, it might be said that their performance is only partial since all they did was to invest defendant with livery of seizin. The statute says no lease for a term of years shall be assigned by parol. [Sec. 2782, R. S. 1909.] The only thing plaintiffs have done is to permit defendant to take possession of and mine the land. But plaintiffs' contract required them not only to surrender possession but also to confer upon defendant the remainder of their leasehold term. This can be done only in writing as required by the statute. Mere surrender of possession would not execute the contract. It is true, plaintiffs afterward complied with section 2782 by endorsing upon the lease a written assignment thereof, but this was not done nor made effective by delivery, or offer of delivery, until after defendant had refused to be bound by the contract. It was made in February, 1912, and plaintiffs' lease was not executed till June 2, 1913, nor the assignment till June 23, 1913. However, if putting defendant in possession and then, after the expiration of more than a year, reducing the assignment to writing was a full performance upon plaintiffs' part, what then? Are such acts full performance, and, if so, does such full performance on their part take the contract out of that provision of the statute allowing no suit to be brought upon contracts not to be performed within one year? We must bear in mind that in this case the contract is within the ban of two clauses of our statute. And it will avail nothing to present a fact which will take the contract out of the operation of the first clause of the statute hereinbefore mentioned unless a way of escape can also be shown from the second clause. Where the only objection to a contract is that it violates the first clause heretofore quoted, full performance upon one side would justify a recovery on the contract. [Johnson v. Reading, 36 Mo. App., supra l c. 319; 29 Am. & Eng. Ency. of Law (9 Ed.), 832.] But can it do so when the contract is also within the ban of the second clause. In the case at bar, not only was defendant not to perform within a year but plaintiffs have construed the contract to mean that they also were not to perform within a year, since they did not procure the lease to themselves until after a year from the making of the contract and did not execute a written assignment till the day they brought suit. So that, if full performance on plaintiffs' part means performance of the assignment and not of the terms of the lease, there was no full performance on their part within the year. Now, in 29 Am. & Eng. Ency. of Law (2 Ed.), 835, it is said that while contracts not to be performed within one year may be taken out of the statute through performance by one party thereto, yet such performance must be within the year. This seems to be the rule in England and in many of the states. Thus in Donellan v. Read, 3 B. & Ad. 899, 110 English Reports 330, it was held that inasmuch as the contract was fully performed on one side within the year and that the intention of the parties was that such party should perform within that time, the other party could not claim the benefit of the statute although such other party was not to perform within the year. In Johnson v. Watson, 1 Ga. 348, the same ruling was made. In MacDonald v. Crosby, 192 Ill. 283, 61 N.E. 505, the parties intended that the plaintiff should perform the contract within the year and she did perform within that time, and the court held that as there was nothing remaining for defendant to do but pay plaintiff the money due on the contract, the Statute of Frauds did not apply. In ...
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