Caldwell v. Silva

• Decision Date: 23 November 1886
• Citation: 23 Mo.App. 417
• Parties: MARY CALDWELL, Appellant, v. JOHN SILVA ET AL., Respondents.
• Court: Missouri Court of Appeals

23 Mo.App. 417

MARY CALDWELL, Appellant, v. JOHN SILVA ET AL., Respondents.

Court of Appeals of Missouri, St. Louis.

November 23, 1886

APPEAL from the St. Louis Circuit Court, SHEPARD BARCLAY, Judge.

Affirmed.

BROADHEAD & HAEUSSLER, for the appellant.

COLLINS & JAMISON, for the respondents.

OPINION

LEWIS P. J.

The plaintiff had execution on a judgment for $945.50 against Henry G. Farber, and caused the defendants to be summoned as garnishees. Issues were made up, and it appeared in the trial, that on July 22, 1885, Farber was the holder of a ten-year lease on certain city property, running from September 15, 1880, to September 15, 1890. That on the day first above mentioned, Farber agreed orally with the defendants for a transfer of the lease, and gave to them the following instrument:

" Received of Joseph Gazzolo and John Silva the sum of one hundred dollars ($100) on account of sale of all my right, title, interest, and good will to the leasehold of the property situated on southeast corner of Olive street and Ware avenue in the city of St. La. I further agree to deliver up possession of the said premises to the said Joseph Gazzolo and John Silva, on or before August 10, 1885, and the said Joseph Gazzolo and John Silva agree, when they receive possession of said premises, to pay to me in cash five hundred dollars, being the balance of the amount of sale. And I further agree, at the option of the said Gazzolo and Silva to rent and become a tenant of theirs; the rent of rooms which I occupy to be determined upon between the said Joseph Gazzolo and John Silva, and me.

HENRY G. FARBER.

ST LOUIS, July 22, 1885."

The testimony tended to show that the defendants never entered into possession of the premises; that Farber remained in possession, and about a month after the alleged transfer posted " for rent" bills on the premises; and that in November next following, his lease was cancelled by his landlord.

The defence was the statute of frauds. The plaintiff insists that no memorandum in writing was necessary to bind the defendants, because there was an absolute and executed sale and transfer of the lease to them, whereby they became bound to pay the purchase money; citing Tatum v. Brooker (51 Mo. 148), and other cases. Tatum v. Brooker is the only one of them in point, and it settles the law directly against the plaintiff's claim. There the vendee took possession and worked the...