Browning v. Walbrun

• Decision Date: 28 February 1870
• Citation: 45 Mo. 477
• Parties: WILLIAM T. BROWNING et al., Plaintiffs in Error, v. DANIEL WALBRUN et al., Defendants in Error.
• Court: Missouri Supreme Court

45 Mo. 477

WILLIAM T. BROWNING et al., Plaintiffs in Error,

v.DANIEL WALBRUN et al., Defendants in Error.

Supreme Court of Missouri.

February Term, 1870.

Error to Fifth District Court.

McFerran & Mansur, for plaintiffs in error.

The statute of frauds has no application in this case. The plaintiffs in error, by suing upon the agreement filed as the foundation of the suit, did an act that bound them; and the defendants in error signed the agreement, and therefore could not plead the statute. (Ivory v. Murphy, 36 Mo. 542.)

Richardson and Hall, for defendants in error.

I. The petition counts upon an instrument of writing, and the plaintiff, if he recovers at all, must recover on the contract declared on; and that being a contract in writing, the writing itself must be produced. (Harris v. Hann. & St. Jo. R.R. Co., 38 Mo. 307; Perry v. Barrett, 18 Mo. 143.)

II. No written evidence having been given or offered to prove the contract declared on, oral evidence, no matter what it might be, would have been wholly immaterial, as no recovery could have been had thereon. (Penseneau v. Penseneau, 22 Mo. 27; Robinson v. Rice, 20 Mo. 227; Dieckman v. McCormick, 24 Mo. 596; Duncan v. Fisher, 18 Mo. 403; Beck v. Ferran, 19 Mo. 30; Smith v. Best, 42 Mo. 185.)

BLISS, Judge, delivered the opinion of the court.

The petition alleges that the plaintiffs leased to defendants, “by a written agreement herewith filed, dated,” etc., “a certain store-room,” etc., “for the term of three years, commencing,” etc., “at the rent of $3,600, payable monthly in advance, which said sum the defendants agreed to pay to the plaintiffs.” It further alleges that the plaintiffs “were ready and willing to perform all the conditions of said agreement on their part,” but that “defendants have failed to pay the first installment of rent, refused to receive the store-room, discharged the plaintiff from the performance of his contract, broke and put an end to their said promise and agreement,” and asks for damages for the breaches of the agreement.

The answer denied the lease as described in the petition, but admitted the execution of the paper filed, and sought to avoid the obligation created by that paper by alleging that the defendants could not obtain possession of the store-room. The following is a copy of the paper filed with and referred to in the petition:

“CHILLICOTHE, Mo., June 30, 1868.

This is to certify that we agree to pay Browning, Henry & Odle for the rent of the corner store-room, for the term of three years, thirty-six hundred dollars, payable monthly in advance, and the rent commences on the first day of July, 1868; and we further agree not to put heavy groceries in said room to any great extent,” etc.

“DANIEL WALBRUN & Co.”

Upon the trial, the plaintiff offered said paper in evidence to prove the lease. Objection was made for variance. The objection was sustained and the paper withdrawn. They next offered parol evidence of the lease, which was objected to, and the objection was sustained, and the plaintiff went out of court.

The point which seems by the record to have been chiefly considered by the Circuit Court pertains to the validity of the lease as affected by the statute of frauds. The paper filed with the petition is not a written lease, but simply an obligation to pay rent in consideration of a lease. Had the petition set out a parol lease as the consideration...