Davis v. Holloway

• Decision Date: 24 May 1927
• Docket Number: 25569
• Parties: Murray H. Davis v. William Holloway and S. Price Smith: William Hollaway, Appellant
• Court: Missouri Supreme Court

295 S.W. 105

317 Mo. 246

Murray H. Davis v. William Holloway and S. Price Smith: William Hollaway, Appellant

No. 25569

Supreme Court of Missouri

May 24, 1927

Appeal from Mississippi Circuit Court; Hon. Frank Kelly Judge.

Affirmed.

James A. Boone and J. M. Haw for appellant.

(1) The contract set up in appellant's answer is not within the Statute of Frauds, and it was error to exclude testimony tending to prove it, and as a corollary thereto it was error to give the instruction offered by respondent which took that issue from the jury. Bird v. Blackwell, 135 Mo.App 23; Sloan v. Paramore, 181 Mo.App. 611; Richardson v. Champion, 143 Mo. 545; Rose v Bates, 12 Mo. 51. The counterclaim of appellant was for damages for breach of his contract, and even if the contract could not be specifically enforced, as coming within the Statute of Frauds, yet that fact does not preclude a recovery or a breach of the contract when one party has performed his part, or partly performed it. Bird v. Blackwell, 135 Mo.App. 23; Wright v. Cobb, 229 S.W. 172; Parker v. Niggeman, 6 Mo.App. 547; Leahy v. White, 123 Mo. 217; Thierry v. Thierry, 249 S.W. 946. (2) Appellant's counterclaim sufficiently pleads a contract between the parties. The matters agreed to are clear and definite. It was agreed that: The first deed of trust was to be foreclosed; respondent was to bid the property in and transfer it to appellant; appellant was to secure a new loan of $ 16,000, discharge the debt evidenced by the $ 7,000 note, secured by first deed of trust, pay the balance on the $ 13,000 note, give a second deed of trust on this land and a first on other lands owned by him to secure all of the balance of the indebtedness to respondent, the time of payment being extended. The evidence of appellant fully supports and proves these allegations and is not denied. If respondent felt that the agreement set out in the counterclaim was not sufficiently specific, his remedy was a motion to make more definite and certain or a demurrer. If there was any merit in such contention respondent waived it by answering over to appellant's counterclaim. State ex inf. v. Ark. Lumber Co., 260 Mo. 283; Boyajian Bros. v. Reinheimer, 229 S.W. 443; Peterson v. Casualty Co., 249 S.W. 149. (3) The uncontradicted evidence of appellant shows a meeting of minds on the essentials of the contract. In ruling upon the demurrer to the evidence, the evidence is to be viewed in the light most favorable to claimant, giving him the benefit of every legitimate inference to be drawn therefrom. Yost v. Atlas Cement Co., 191 Mo.App. 422, Dority v. Railway, 188 Mo.App. 365; Booker v. Railway Co., 144 Mo.App. 273. (4) Appellant's action is based on the damages arising from respondent's agreement and conduct depriving appellant of the opportunity and ability to meet his obligations, by using the land as a means by which to raise the money to pay off the obligation evidenced by the note secured by the first deed of trust and this and his other resources to obtain enough money to discharge the balance of the debt against the 320 acres. The agreement of respondent to convey to appellant after purchasing at the foreclosure was a mere incident. If respondent had bid the full value of the land and refused to convey, appellant would not have been damaged and would have had no cause of action as the surplus over the amount of the first incumbrance would have been applied to the note sued on. If, on the other hand, respondent had attended the sale, refused to bid and permitted the land to be sold to some one else for less than its value, appellant's cause of action would have been the same as it is now. Sloan v. Paramore, 181 Mo.App. 611. This case is clearly within the principle of those cases that hold that an action will be for breach of contract whose subject-matter relates partly to an agreement within the Statute of Frauds, but is partly distinct therefrom. Salway v. Shields, 66 Mo. 313; Parker v. Niggeman, 6 Mo.App. 546: Bird v. Blackwell, 135 Mo.App. 23; Chamberlain v. Ft. Smith Lbr. Co., 179 S.W. 740; Scott v. Lewis, 177 Mo.App. 8.

Scarritt, Jones & Miller for respondent.

(1) Appellant's assignment of error does not specifically point out the evidence, the exclusion of which is claimed as error. Such an assignment of error is too general in terms to warrant the attention of court and counsel. Hayes v. McLaughlin, 217 S.W. 262; Lorton v. Mo. Pac. Ry. Co., 306 Mo. 125; Doody v. California Woolen Mills Co., 274 S.W. 692; Christine v. Luyties, 280 Mo. 431; Maloney v. United Rys. Co., 237 S.W. 512. (2) Appellant's counterclaim does not plead a contract between the parties. The terms are indefinite and the acceptance of respondent as pleaded is entirely different from the offer of appellant as pleaded. Consequently the counterclaim fails to state a cause of action. County of Cole v. Trust Co., 302 Mo. 235; State ex rel. v. Robertson, 191 S.W. 991; Strange v. Crowley, 91 Mo. 287; Green v. Cole, 103 Mo. 76; Wesson v. Horner, 25 Mo. 81. (3) The evidence utterly fails to show a meeting of the minds of the parties in an agreement complete and definite in its terms. The court will not undertake to evolve a contract out of conversational statements so general that the court and jury would be put to the necessity of supplying many of the material details of a complete agreement. Stone v. Trust Co., 150 Mo.App. 344; Gray v. Ry. Co., 143 Mo.App. 251; Wesson v. Horner, 25 Mo. 81. (4) The evidence fails to show either performance or tender of performance by appellant of the alleged contract, or even his ability to perform same, and the trial court properly directed a verdict for respondent on the issues made by appellant's counterclaim. Choteau v. Russell, 4 Mo. 553; Cress v. Blodgett, 64 Mo. 449; Browning v. Ry. Co., 188 S.W. 143; Cornett v. Best, 151 Mo.App. 551; Curtis v. Sexton, 142 Mo.App. 190. (5) The alleged contract relied upon by appellants was an oral contract for the sale and conveyance of land, and therefore unenforceable, being within the provisions of the Statute of Frauds. Taylor v. Von Schraeder, 107 Mo. 206; Allen v. Richard, 83 Mo. 55; Wendover v. Baker, 121 Mo. 273; Foster v. Ross, 77 S.W. 990; Largey v. Leggat, 75 P. 950. (6) Even if it should be held that the making of the oral contract in question was properly alleged and proved and that appellant had partly performed same, appellant could not recover, for part performance could not take the contract out of the operation of the Statute of Frauds, this being an action at law. Smith on Law of Fraud, sec. 348; Nally v. Reading, 107 Mo. 350; Scharff v. Car Co., 214 Mo.App. 662; Hillis v. Rhodes, 205 Mo.App. 449; Sursa v. Cash, 171 Mo.App. 403; Ver Steeg v. Fruit Co., 158 Mo.App. 129; Chenoweth v. Pac. Exp. Co., 93 Mo.App. 191; Smith v. Davis, 90 Mo.App. 538.

OPINION

Lindsay, C.

The plaintiff declared upon a promissory note in the sum of $ 13,000, dated March 15, 1918, due five years after date, and executed by defendant William Holloway and one E. Lindsay Brown, payable to the order of defendant S. Price Smith, and pleaded the endorsement and delivery of the note to plaintiff, for value, before maturity, and presentation of the note at maturity and default in its payment.

Defendant William Holloway, in his answer, admitted the execution of the note, and that certain payments thereon had been made as alleged in the petition. He set up, by way of counterclaim, that the note sued on was given as part of the purchase price of 320 acres of land in New Madrid County, and was secured by a lien thereon; that the remainder of the purchase price of said land consisted of cash and a first deed of trust on said land amounting to $ 7,000, the payment of which had been assumed by him and his co-purchaser, said Brown; that they afterward sold and conveyed the land to one Cain, who assumed the payment of the note in suit, and of the note for $ 7,000 secured by the first deed of trust; that said Cain became and was insolvent, and made default in the payment of all his debts; that when the note became due, said Brown was also insolvent; that when the note became due, he, defendant Holloway, was unable to pay the same on account of the financial depression then prevalent; that "thereupon, in consideration of defendant's agreement to secure a new first loan of $ 16,000 on said land, discharge the first deed of trust, pay the balance of said $ 16,000 to plaintiff, and to give plaintiff additional security for the remainder of the debt, plaintiff agreed to extend the time of payment of the debt evidenced by the note sued on, and to cause said land to be sold under the first deed of trust, buy the land in, and convey the title to this defendant in order to enable him to carry out said agreement and obtain said loan; that in pursuance of said agreement, plaintiff and defendant negotiated said loan; that pursuant to said agreement, plaintiff caused the holders of the first deed of trust to sell the said land under the terms of said deed of trust, and this defendant relying on the promises and agreement aforesaid, did not attend said sale, and plaintiff was the sole bidder and purchased said land at said sale for the amount due on the first deed of trust, to-wit, $ 7,500, when in truth and in fact the reasonable market value of said land was $ 24,000; that afterward when this defendant, having arranged for a loan of $ 16,000 on said land, was ready and able to carry out his part of said agreement, and, relying upon plaintiff's agreement as aforesaid, requested plaintiff to convey said land to this defendant, plaintiff refused to comply with his part of said agreement, and retained the land, and demanded full payment of the note in cash; that if plaintiff had not made such agreement, ...