Cockrell v. McIntyre

• Decision Date: 12 March 1901
• Parties: COCKRELL v. McINTYRE et al.
• Court: Missouri Supreme Court

61 S.W. 648

161 Mo. 59

COCKRELL v. McINTYRE et al.

Supreme Court of Missouri, Division No. 2.

March 12, 1901.

EJECTMENT — SUIT IN EQUITY — SUBMISSION OF ISSUES — AUTHORITY OF COURT — QUESTION OF LAW — AGENT — EVIDENCE OF AUTHORITY — SALE OF LAND — STATUTE OF FRAUDS — MEMORANDUM — PART PERFORMANCE.

1. Rev. St. 1899, §§ 721, 722, provide that in all cases, except for the recovery of money or specific real or personal property, the court may direct an issue to be made, if in its opinion it becomes necessary to determine any fact in controversy by the verdict of a jury. Held, that the submission of a single issue to the jury in an action of ejectment, without submitting all the issues, did not constitute error, since the court had authority to submit such issues as it thought necessary.

2. The submission to the jury, as a special issue, whether the parties entered into an oral contract to exchange the land in controversy for mining stock, though erroneous, as submitting a question of law to the jury, was not sufficiently prejudicial to justify a reversal of the judgment, as the verdict of the jury was merely advisory.

3. On the day set for the consummation of a trade of the land in controversy to defendant for mining stock, the owner sent defendant a note stating that he was sick, and that W. would attend to the matter for him. W. consummated a trade, and tendered the mining stock to the owner, who refused to accept it, stating that he wished to talk over the matter before coming to a final decision. Held, that the evidence was not sufficient to show that W. had authority to consummate a trade, and hence the contract was not binding on the owner.

4. Rev. St. 1889, § 5186, provides that no contract for the sale of lands made by an agent shall be binding on the principal unless such agent is authorized in writing to make the contract. An owner had been negotiating with defendant for an exchange of land for mining stock, and agreed to meet defendant at a certain time to consummate the trade. Held, that a note stating that the owner was sick and unable to meet defendant, but that W. would attend to the matter for him, was not sufficient to take a parol contract consummated by W. out of the statute of frauds.

5. Where an owner agreed in parol to trade land to defendant for mining stock, and defendant, without the knowledge of the owner, took possession of the land, and the owner repudiated the trade on being informed of such possession, it cannot be contended that defendant's possession constituted a part performance which took the contract out of the statute of frauds, since the owner never consented to defendant's possession.

Appeal from circuit court, Cooper county; D. W. Shackleford, Judge.

Action by George S. Cockrell against James McIntyre and another. From a judgment in favor of defendants, plaintiff appeals. Reversed.

This is ejectment for the possession of a tract of land in Cooper county. The petition is in the usual form. The ouster is laid on March 20, 1898. The damages claimed are $250, and monthly rent is alleged to be $20. The defendants answered separately. In McIntyre's answer, he denied all allegations in plaintiff's petition, and then alleged that he was in possession of the land as the tenant of his co-defendant, Lawson. The separate answer of defendant Lawson, after denying generally all the allegations in plaintiff's petition, proceeds as follows: "This defendant, further answering, states that on the 22d day of September, 1896, one T. J. Wallace was the owner of the lands in the plaintiff's petition described; that on said date this defendant traded for said land with said Wallace, giving in exchange therefor mining stock in the Sedalia Cripple Creek Mining Company, of the par value of six thousand five hundred dollars; that at the date of said trade or exchange said stock was of the market value of twenty-five cents on the dollar, of one thousand six hundred and twenty-five dollars for the block lot so traded; that said mining stock was duly delivered by this defendant to the said Wallace, and accepted by the said Wallace in exchange for said land on the 24th day of September, 1896; that, immediately upon the delivery of said stock as aforesaid, Wallace put this defendant in possession of the said land, and agreed to execute and deliver to this defendant a warranty deed to same; that said defendant, after being put in possession of said land as aforesaid, made valuable and lasting improvements upon the same, and continued in possession thereof up to 5th day of February, 1897, on which said date he conveyed said land by quitclaim deed to C. I. Wilson, which said deed was duly recorded in the recorder's office of Cooper county, Missouri, in Deed Book No. 16, at page 299, on the 8th day of February, 1897; that said Wilson has been in continuous possession of said land by tenants after same was conveyed to him by this defendant up to the 19th day of May, 1898, on which date said Wilson reconveyed said land to this defendant by quitclaim deed; and that this defendant is now in possession through his co-defendant, as tenant. This defendant further states that he has complied with all of the conditions of his said contract with said Wallace aforesaid on his part, but said Wallace has failed, refused, and neglected to comply with his part of said contract, in this, to wit: that he has failed, refused, and neglected to deliver to this defendant a warranty deed to said land, as by said contract he agreed to do. This defendant, further answering, states that whatever claim, if any, the plaintiff may have to said land, he acquired long after this defendant owned said land, and with full notice, actual and constructive, of this defendant's and this defendant's grantor's right, title, and claim to said land. This defendant further states that, whatever claim the plaintiff may have to said land, he received the same without any consideration whatever, and holds the same for the mere purpose of prosecuting this suit." Plaintiff made reply to both answers, denying all new matter in them, and pleaded the statute of frauds with respect to the contract set up by defendant Lawson. The court, over the objection of plaintiff, submitted the following question to the jury, to wit: "Did T. J. Wallace and defendant Lawson on September 22, 1896, enter into an oral contract for the exchange of the land for mining stock?" To sustain the issues upon his part, plaintiff read in evidence a deed from T. J. Wallace and wife to him for the land, dated March 10, 1898, and duly recorded in the recorder's office of Cooper county. He then proved the monthly value of the rents and profits, and rested. The facts, briefly stated, are, substantially, that on the 22d day of September,...