Coleman v. Fletcher
| Citation | 188 S.W.2d 959,238 Mo.App. 813 |
| Parties | W. C. Coleman, Respondent, v. L. B. Fletcher, Appellant |
| Decision Date | 19 July 1945 |
| Court | Missouri Court of Appeals |
Rehearing Denied August 7, 1945.
Appeal from the Circuit Court of New Madrid County; Hon-Louis H Schult, Judge.
Affirmed.
Edward F. Sharp for appellant.
The petition filed in this case wholly fails to state a cause of action. The action is one for damages for "breach of contract" and the petition does not contain an allegation of performance by plaintiff or offer of performance. Globe American Corp. v. Miller Hatcheries, 110 S.W.2d 393, 397; Lewis v. National Saving & Loan Assoc., 84 S.W.2d 968, 229 Mo.App. 1003; Slaughter v. Barnett, 102 A. L. R. 1078-79; 17 C. J S., sec. 538, page 1170 The plaintiff cannot maintain an action for breach of contract without showing performance or tender of performance on his part. This he admittedly did not do because plaintiff admitted he was to pay $ 200 cash-rent for 1940 and that he did not pay it. 17 C. J. S., sec. 452, page 932; Major v. Hast, 263 S.W. 466; Motor Port v. Freeman, 62 S.W.2d 479; Pioneer Oil Co. v. Sebastian, 80 S.W.2d 281, 283; St. Louis Union Trust Co. v. Van Raalte, 259 S.W. 1073; Hutchinson v. Swope, 256 S.W. 134; Salant v. Fox, 271 F. 449; Penley Bros. v. Hall, 84 F.2d 371; Raybestos-Manhattan v. Asbestos Textile Co., 79 F.2d 634; Hoffman v. Mastin, 119 S.W.2d 1027, 1030; Cook v. Harrington, 54 S.W.2d 439; Marsh v. Richards, 29 Mo. 99, 104; Charles v. St. Louis Basket Co., 271 S.W. 859; Meyers v. Christopher, 176 Mo. 294. It is elementary that a cause of action for the "breach of a contract" presupposes the existence of a legally enforcible contract -- no contract, no breach; and hence no cause of action for breach of contract. The original contract, being a verbal lease for two years, was void under the Statute of Frauds; hence no action for its breach. Section 3354, R. S. Mo. 1939; Taggert v. School District, 96 S.W.2d 335, 336; Davis v. Holloway, 295 S.W. 108; Mantz v. Maquire, 52 Mo.App. 153. The contract proved in this case was not the contract sued on even if said alleged contract was valid. The petition declared the rental contract was for one-fourth the cotton and one-fourth of the government payments. The contract proved was for one-fourth the cotton, plus $ 200 cash rent, plus a share in the government rentals. This is a fatal difference. The suit being for the breach of an express contract, the plaintiff must prove the identical contract pleaded or he cannot recover. Fay v. Missouri Power & Light Co., 33 S.W.2d 1056; Bay v. Wank, 255 S.W. 326; Jones v. Hill, 18 S.W.2d 382; Collins v. People's Bank, 33 S.W.2d 139; Minter v. Tootle Campbell Dry Goods Co., 173 S.W. 4, 187 Mo.App. 16. The statement that part performance of a contract will take it out of the Statute of Frauds applies only to suits in equity and does not apply to an action at law such as is the present case. Dimick v. Snyder, 34 S.W.2d 1004, 1007; Shy v. Lewis, 12 S.W.2d 719. Part performance of an oral lease for more than a year by making partial payment of rent does not take it out of the Statute. Winter v. Spradling, 163 Mo.App. 77, 145 S.W. 834. The court erred in permitting witnesses to testify as to what profit Colman might have made on the twenty-five acres in question for the reason that such estimated profits were wholly speculative and incapable of proof. Hardesty v. Schaefer, 139 S.W.2d 1031, 1035; Reynolds v. Western Union, 81 Mo.App. 223; Callavary Mining Co. v. Clark, 32 Mo. 305. The court erred in refusing to sustain defendants motion in arrest of judgment for the reason that the jury made no finding on count 5 of defendants answer and refused to give defendants Instruction "C" submitting said count. Davidson v. Peck, 4 Mo. 438; City of St. Louis v. Commissioner Co., 340 Mo. 633, 646 and 647; Pitts v. Fugate, 41 Mo. 405, and because on the whole record the judgment is erroneous because an action of trespass will not lie against a party with title and right of possession. Krevet v. Myer, 24 Mo. 107; Bergman v. Vogt's Admr., 172 Mo.App. 61; Levy v. McClintock, 141 Mo.App. 593; Ivory v. Carlin, 30 Mo. 142, 144.
Ward & Reeves for respondent.
The defendant's act in requesting submission of all the issues to the jury was voluntary, and such act now precludes the appellant from complaining of each and all of the alleged errors under his points and authorities. Clay v. Owen, 93 S.W.2d 194; Gee v. Sherman, 221 Mo.App. 121. The defendant never at any time filed an affidavit of a variance between the petition and the proof offered. Consequently that Statute of Jeofails precludes a review of the alleged errors raised under points 1, 2 and 4. Secs. 969 to 988, R. S. Mo. 1939, sec. 1265, R. S. Mo. 1939; Fairbanks-Morse Co. v. Mining Co., 105 Mo.App. 644. The tenancy between the plaintiff and the defendant was an oral letting of farm lands for two years and such an oral contract under the statute (Sec. 3352, R. S. of Mo. 1939) had the force and effect of a lease or estate from year to year at will only, and could only be ended prior to the end of the two-year period by the defendant giving a notice in writing not less than sixty days before the end of the year 1940. Sec. 2969, R. S. Mo. 1939; Minton v. Steinhauer, 243 Mo. 51; Ray v. Blackman, 120 Mo.App. 497. Furthermore, as to contracts generally, the rule is that where a breach of one condition of a contract may be paid for in damages, a breach of such condition does not excuse the other party from performance of the contract. Window Co. v. Cornice Co., 181 Mo.App. 318; Coal Co. v. Packing Co., 138 Mo.App. 274; Coffman v. Reeder, 108 F. 171. The item of $ 200 could be used for and recovered, if not paid, independent of any other parts of the contract. It did not have any mutuality with any other covenant of the contract. In other words, it was independent and the payment of it was not a condition precedent to instituting a suit on the contract. Turner v. Mellier, 59 Mo. 526, 535; Bridge Co. v. Corrigan, 251 Mo. 667; Sawyer v. Christian, 40 Mo.App. 295; St. Louis Steam Heating Co. v. Bissell, 41 Mo.App. 426; O'Neill v. Webb, 78 Mo.App. 1; Springfield Seed Co. v. Walt, 94 Mo.App. 77, 86; Neville v. Hughes, 104 Mo.App. 455; Haydon v. Railroad, 117 Mo.App. 76; Coal Co. v. Packing Co., 138 Mo.App. 274; Window Co. v. Cornice Co., 181 Mo.App. 319, 326.
This action was begun by the filing of a petition in the circuit court of New Madrid County, Missouri, on the 21st day of November, 1941. The plaintiff (respondent here) alleged that in January, 1940, he entered into a contract with the defendant (appellant here) under the conditions of which he was to farm a certain twenty-five acres of land for the years 1940 and 1941. That under the terms and conditions of said contract, plaintiff was to receive three-fourths of the cotton raised upon the land and three-fourths of the government payments or benefits thereon and the defendant was to receive one-fourth of said cotton and one-fourth of said benefits. The petition further asserts that plaintiff entered upon said real estate and farmed the same during the year 1940 and that although he rented said real estate for the year 1941 also, the defendant wrongfully and without any lawful right took away from plaintiff the said twenty-five acres of land upon which plaintiff was to have grown cotton in the year 1941 and by reason of such wrong doing on the part of defendant, plaintiff was precluded from growing additional cotton on the twenty-five acres during 1941. That the wrongful taking of the land by the defendant was on or about the 18th day of February, 1941, after the plaintiff had already begun his farming operations for that year. That plaintiff was damaged by reason thereof in the sum of $ 1675, which would have represented his profit on the cotton, and the additional sum of $ 260 which would have been his three-fourths of the government benefits. He prayed judgment for $ 1935 with interest.
Defendant filed an answer and counterclaim, in the first count of which was a general denial as to all matters not thereinafter expressly admitted.
Count II alleged that he verbally rented to plaintiff the land for 1940 only and that he orally notified plaintiff in July, 1940, that he had rented the farm, a portion of which was the twenty-five acres in controversy, to one Roy Berry, and that Berry entered upon said farm in 1940 and sowed some wheat and barley thereon and that in addition to one-fourth of the cotton, the plaintiff had agreed to pay $ 200 in cash for the 1940 rent; that he had failed to pay the $ 200 and defendant prayed judgment for $ 200.
Count III alleged that plaintiff had executed and delivered to defendant a promissory note for $ 1000, secured by a chattel mortgage, that certain payments and credits had been made and entered upon said note but there remained due and unpaid $ 270.71 for which, defendant prayed judgment.
Count IV alleged that the plaintiff had agreed to pay additional rent, on another farm, to the defendant in the sum of $ 60, which was past due and unpaid and for which, judgment was prayed.
Count V alleged that the oral agreement was in violation of the Statute of Frauds, Section 3354, Revised Statutes of Missouri, 1939, was void and no action could be maintained thereon. Plaintiff filed a reply denying all the new matter set up in Counts II, III and IV of defendant's answer and renewed his prayer for judgment as in the original petition.
The case was tried to a jury which found for the plaintiff in the sum of $ 1860.71; found for defendant on Count II of his counterclaim in the sum of $ 200, on Count III thereof for the sum...
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