Burk v. Walton

• Decision Date: 03 September 1935
• Parties: Emmett F. Burk and Roy Burk, Executors of the Estate of Monroe Burk, Appellants, v. J. B. Walton
• Court: Missouri Supreme Court

86 S.W.2d 92

337 Mo. 781

Emmett F. Burk and Roy Burk, Executors of the Estate of Monroe Burk, Appellants, v. J. B. Walton

Supreme Court of Missouri

September 3, 1935

Rehearing Denied September 3, 1935.

Appeal from Bates Circuit Court; Hon. W. L. P. Burney Judge; Opinion filed at May Term, 1935, July 11, 1935; motion for rehearing filed; motion overruled at September Term September 3, 1935.

Affirmed.

J. A. Silvers for appellants.

(1) The contract pleaded was an enforceable one though founded on an oral promise of the defendant. Therefore, the court erred in excluding evidence, of George W. Lee, of the contract, agreement and promise by the defendant to Monroe Burk. It was made to induce and did induce the delivery of the deed to 280 acres of land made by Burk to George W. Lee. It was not within the Statute of Frauds because: (a) The contract was fully performed by Burk, the promisee. 27 C. J. 350; Jones v. Jones, 63 S.W.2d 150; Drake v. Drake, 43 S.W.2d 556; Self v. Cordell, 45 Mo. 343; Winter v. Cherry, 78 Mo. 344; McGinnis v. McGinnis, 174 Mo. 297; Schlitz Brewing Co. v. Mo. Poultry & Game Co., 229 S.W. 816; Walker v. Whitten, 38 S.W.2d 480; Mitchell v. Branham, 104 Mo.App. 484; Bird v. Bilby, 202 Mo.App. 212; Montgomery v. Gann, 51 Mo.App. 187; Ordelhida v. Traube, 183 Mo.App. 363; Keller v. Mayer Fertilizer Co., 153 Mo.App. 120; Coleman v. Forester, 178 Mo.App. 63; Tucker v. Dolan, 109 Mo.App. 451; Bless v. Jenkins, 129 Mo.App. 657. (b) The promise by defendant to pay Burk the $ 15,000 debt note and look to Oldham for the debt constituted an original undertaking by defendant and when Burk took the note, relying on the promise of the defendant so made, the promise is not within the Statutes of Frauds. Barker v. Scudder, 56 Mo. 272. (2) A valuable consideration moving to the defendant for his promise made to Burk and were necessary to show defendant's beneficial interest in the transaction between Burk and Lee, and in the real estate involved. Moore v. McHaney, 191 Mo.App. 686; Brown v. Brown, 47 Mo. 130; Guaranty Trust Co. v. Kohler, 195 F. 669. (3) The intention of defendant to escape liability, by confining his promise to an oral declaration or statement, is not material. He was bound by the obvious understanding of Mr. Burk, Mr. Burk's reliance upon the statement and promise, and full performance by him. Farley v. Pettis & Leathe, 5 Mo.App. 262; Norton v. Higby, 38 Mo.App. 467; Grocery Co. v. Canning Co., 129 Mo.App. 331.

Sparrow, Patterson, Chastain & Graves for respondent.

(1) The promise of the defendant set up in the petition was to pay the Oldham note and being oral is invalid. The petition does not state a cause of action. Secs. 2647, 2967, R. S. 1929; 8 C. J., pp. 106, 155-157; Keck v. Sedalia Brewing Co., 22 Mo.App. 187; Bank v. Lead & Zinc Co., 173 Mo.App. 634; United Securities Co. v. Tilly, 177 Mo.App. 113; Swarens v. Pfnisel, 26 S.W.2d 951; Muellen v. Woodson, 198 S.W. 1134; Casner v. Heaton, 237 S.W. 1042; Parsons v. Kelso, 141 Mo.App. 369; Mooney v. Huddleston, 13 S.W.2d 1087; Large v. Freck Co., 215 Mo.App. 232, 256 S.W. 90; First Natl. Bank v. Crutcher, 15 S.W.2d 888; Coal & Mining Co. v. Mayer, 310 Mo. 104, 274 S.W. 770; Nichols v. Bank, 55 Mo.App. 81. (2) The plaintiffs sought to prove a different contract -- an original promise -- by the witness Lee. Such was not admissible because not set up in the petition. Arn v. Arn, 264 Mo. 19; Wilcox v. Ry. Co., 201 Mo.App. 510; Walker v. Bohannan, 243 Mo. 119; Oliver v. Johnson, 238 Mo. 359; Wilson & Son v. Russler, 91 Mo.App. 275; Ray v. Bowles, 83 Mo. 166; Cockrell v. Williams, 195 Mo.App. 400. (3) The testimony of Lee as to the negotiations and contract with Burk were inadmissible because the entire transaction was merged in the deeds and notes and deeds of trust. 22 C. J. 1089; Barger v. Healy, 276 Mo. 145; Gates Hotel Co. v. Fed. Inv. Co., 331 Mo. 107; Orthwein v. Nolker, 290 Mo. 284. (4) The alleged agreement is barred by the Statute of Limitations. Sec. 862, R. S. 1929; Quint v. Kingsbury, 289 S.W. 667; Carter v. Burns, 332 Mo. 128, 61 S.W.2d 933; Herweck v. Rhodes, 327 Mo. 29, 34 S.W.2d 32; Scheer v. Trust Co., 330 Mo. 149, 49 S.W.2d 135. (5) The performance of the alleged contract by Burk does not validate it. (a) The contract sought to be proved by the witness Lee was not the contract set up in the petition. (b) The contract testified to by Lee did not show an original promise but only one to answer for the debt of another because Oldham was not released. 27 C. J. 152; 25 R. C. L. 503; Haeberle v. O'Day, 61 Mo.App. 390; Waggoner v. Davidson, 189 Mo.App. 345; Meegan v. Ill. Surety Co., 195 Mo.App. 423; Martin v. Harrington, 174 Mo.App. 707; Muellen v. Woodson, 198 S.W. 1134. (c) The testimony of Lee was not admissible to prove performance of the alleged oral agreement. Jones v. Jones, 63 S.W.2d 151. (d) The delivery of the deed by Burk was referable to his contract with Lee and not to the alleged oral agreement. Lydick v. Holland, 83 Mo. 703; Sursa v. Cash, 171 Mo.App. 405. (e) Performance must be referable to the contract sought to be proved and does not apply in cases of promise to pay the debt of another. 27 C. J., p. 356, sec. 435; 25 R. C. L., p. 707, sec. 351; Haeberle v. O'Day, 61 Mo.App. 390; Liddle v. Needham, 39 Mich. 147; Wales v. Holden, 209 Mo. 552; Rogers v. Wolfe, 104 Mo. 1. (6) The alleged oral contract was not to be performed within a year and was within the Statute of Frauds. Sec. 2967, R. S. 1929; Schultz v. Tatus, 35 Mo.App. 136; Cantwell v. Johnson, 236 Mo. 575.

Bohling, C. Cooley and Westhues, CC., concur.

OPINION

BOHLING

Plaintiffs are the duly appointed, qualified and acting executors of the estate of Monroe Burk, who departed this life in October, 1926, testate. The first count of plaintiffs' amended petition, upon which the case went to trial, is based on an alleged oral contract of J. B. Walton to pay said Burk a certain debt evidenced by two certain promissory notes of Frank Oldham and wife in the principal sums of $ 15,000 and $ 4,000. The $ 4,000 note having been paid, judgment is sought on the indebtedness evidenced by the $ 15,000 note. Cast on demurrer at the close of plaintiffs' case, plaintiffs appeal.

Plaintiffs' case, in its essential features, is based on offers of proof the evidence being excluded by the court. For a ready understanding of the issues, we set forth the substance of the first count of plaintiffs' petition. It alleges: That said Monroe Burk in August, 1919, was the owner of a certain 280-acre tract of land, describing it; that on said date George W. Lee contracted in writing to buy said real estate from said Burk, the agreed consideration being $ 23,800; "that said purchase price was to be paid in money when a properly executed deed was delivered to the purchaser aforesaid and possession of said real estate was surrendered to him by the seller;" that said Lee paid $ 500 as earnest money on said contract and said Burk executed and placed in escrow a warranty deed conveying said real estate to said purchaser, said deed bearing date of August 28, 1919; "that before the delivery of the deed or the payment of the remainder of the purchase money and shortly after the date of said conveyance, the said J. B. Walton, defendant herein, entered into an arrangement with the purchaser, George W. Lee, by which the said J. B. Walton was to become interested in said land, and was to pay an equal portion of the purchase price, and share equally in the profits of said transaction;" that thereafter and before the delivery of said deed of said Burk, said Walton agreed to convey or cause to be conveyed to Frank Oldham 200 acres of the aforesaid 280-acre tract of real estate in consideration of the sum of $ 22,000, $ 3,000 to be paid to said Lee and Walton and the balance ($ 19,000) to be evidenced by promissory notes, secured by deeds of trust on said 200 acres; that on or about February 18, 1920, said Oldham and wife executed and delivered to the Walton Trust Company (a corporation of which said Walton was an officer and managing agent), their promissory notes, one in the sum of $ 15,000, secured by a first deed of trust as aforesaid, conveying said real estate to James A. DeArmond, as trustee, and also their $ 4,000 note, secured by a second deed of trust on said 200-acre tract, said $ 4,000 note being payable to said Lee; that after the signing and making ready for delivery of the several instruments aforesaid, said Burk Lee, Walton, Frank Oldham and wife met for the purpose of consummating the several transactions, "and to obtain a delivery of the deed of conveyance from said Monroe Burk to George W. Lee for the 280 acres of land first above mentioned, and to secure possession of said real estate in accordance with the terms of the contract of sale between said Monroe Burk and said George W. Lee, said defendant, J. B. Walton, proposed to said Monroe Burk to secure to him an assignment of all the notes made by said Frank Oldham and wife, as aforesaid, and in order to induce the said Monroe Burk to accept such assignment and deliver the deed and surrender possession of the real estate above mentioned did promise and agree and did personally bind himself to pay said note of $ 15,000 and the said note of $ 4,000, respectively;" and "that the said Monroe Burk did then and there accept said proposal so made by defendant, J. B. Walton, relying upon his oral promise to pay said promissory notes, so made by the defendant, and thereupon delivered the deed of conveyance for the said 280 acres of real estate herein first above described and surrendered the full possession of same in accordance with said proposal;" that said Walton did procure from said Lee an assignment of said $ 4,000 note and from said Walton Trust...