Beckmann v. Mepham

• Decision Date: 09 December 1902
• Citation: 97 Mo. App. 161,70 S.W. 1094
• Parties: BECKMANN v. MEPHAM et al.
• Court: Missouri Court of Appeals

70 S.W. 1094

97 Mo. App. 161

BECKMANN v. MEPHAM et al.

Court of Appeals at St. Louis, Missouri.

December 9, 1902.

CONTRACT — EXCHANGE OF LANDS — STATUTE OF FRAUDS — PLEADING.

1. A contract for the exchange of land for bank stock was alleged by plaintiff. In support of the allegation he offered certain written memoranda described in the opinion, and the court held them insufficient under the statute of frauds.

2. A contract required by the statute of frauds to be in writing cannot be enlarged by oral agreement so as to make the amendment enforceable when the statute is interposed.

3. A contract for the exchange of land for land or other things than money is within the statute of frauds governing the sale of lands.

4. If a part of an entire contract is within the statute of frauds, the whole is controlled by it.

5. The statute of frauds may be used as a defense under a general denial to a petition upon a contract, where the petition does not allege the contract to be oral, and the statute is invoked at the trial in some appropriate way.

(Syllabus by the Judge.)

Appeal from St. Louis circuit court; Walter B. Douglass, Judge.

Action by Edward Beckmann against Edward E. Mepham and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Young & Ruler, for appellant. Russell & Dyer, for respondents.

BARCLAY, J.

This is an appeal from a judgment for defendant in an action to enforce a contract, stated in plaintiff's petition to be one of exchange and purchase, whereby plaintiff was to deliver to defendant 10 shares of bank stock, of the value of $6,500, for a lot of land in the city of St. Louis (valued at $2,500), and defendant was to pay to plaintiff the difference in value as part of the price of his stock. The answer of defendants was a general denial. At the trial the defendants raised distinctly the issue that the contract sought to be proved was within the statute of frauds, and was, therefore, void. On that issue the court found in favor of the defendant who remained in the case after plaintiff had dismissed as to the other defendant during the progress of the trial. At the close of plaintiff's evidence the court gave a peremptory instruction for the defendant, and thereafter entered judgment accordingly, from which judgment plaintiff appealed in the usual way.

The only point involved in the appeal is the sufficiency of plaintiff's testimony to establish a contract enforceable at law, for the action is one to recover damages as compensation for defendant's refusal to carry out the contract. Plaintiff's evidence tends to prove that he inserted an advertisement in a daily newspaper in the city of St. Louis, by which he proposed to sell certain shares of bank stock. The advertisement was as follows: "For sale, fifteen shares or any part of Lafayette Bank stock. Address E 30, Globe Democrat." The defendant's answer to the advertisement was as follows: "December 5th, 1900. Dear Sir: Please call or send price and your address regards Lafayette Bank stock you advertise for sale. Respectfully, E. E. Mepham, 303 Benoist Building, 9th and Pine streets." Some oral negotiations ensued, following which the defendant sent plaintiff the following communication: "Dear Sir: After considering matter we are not willing to put our lot in at less than $50 per foot, as we feel we will be able to get that much for it next spring. If you feel justified in taking the lot at that figure, we can make a trade on basis of 10 shares at $650 per share. Yours truly, E. E. Mepham, 303 Benoist Bldg." The foregoing written and printed memoranda constitute the entire evidence of any written agreement between the parties. The contract which plaintiff claims defendant made, and which his petition counts upon, is one for the sale of plaintiff's 10 shares of bank stock for $6,500, in consideration of the transfer to plaintiff of a lot (described in the petition) and the payment by defendant of the difference between said value of the stock and $2,500, the value of the lot, as proposed by defendant in the last memorandum above quoted. The learned trial judge decided that the contract was within the statute of frauds, and that it was not sufficient in form to support plaintiff's action.

1. It has been held, in a very...