Ellis v. Wagner

• Decision Date: 01 February 1887
• Citation: 24 Mo.App. 407
• Parties: ROBERT ELLIS, Respondent, v. SAMUEL WAGNER, Appellant.
• Court: Missouri Court of Appeals

24 Mo.App. 407

ROBERT ELLIS, Respondent,

v.SAMUEL WAGNER, Appellant.

St. Louis Court of Appeals, Missouri.

Feb. 1, 1887.

APPEAL from the Douglas County Circuit Court, J. R. WOODSIDE, Judge.

Reversed and remanded.

THOS. H. MUSICK, A. J. STEWART, and J. K. REED, for the appellant.A. C. RICE, for the respondent.

ROMBAUER, J., delivered the opinion of the court.

This is an action to recover a balance of twenty dollars, claimed to be due, as the residue of the purchase money of certain improvements made by the plaintiff on lands which the defendant desired to homestead. In the trial court the plaintiff recovered judgment.

The agreement was oral, and the controversy between the parties turned on its conditions. The plaintiff's version of the contract was, that he sold to the defendant the improvements for twenty-five dollars. Of this amount the defendant paid five dollars, and agreed to pay the residue as soon as he homesteaded the lands, and that it was further agreed that if the defendant could not get one hundred and sixty acres, lying contiguously and including the improvements sold, subject to homestead entry, the plaintiff would refund to the defendant the five dollars paid. The plaintiff gave evidence tending to show that there were six forty acre tracts lying contiguous to the land the improvements were on.

The defendant's version of the contract was, that the sale was conditioned upon the fact, that he could get one hundred and sixty acres, subject to homestead entry, in a square, including the improvements, and that if he could not do so the five dollars were to be returned to him, and the contract was to be cancelled. He gave testimony tending to show that he could not obtain one hundred and sixty acres in a square, subject to homestead entry, that he thereupon made a homestead entry in a T shape, but upon a survey of it, it was ascertained that one of the forty acre tracts, included in the entry, had been homesteaded before, which compelled him to abandon that entry. He also gave evidence tending to show that no one hundred and sixty acres could be obtained lying contiguous to the land on which the improvements were, and that the contract, entry, and cancellation of the entry, were all in the month of March, 1884.

It was admitted that the defendant took possession of the land and the improvements sold, when he thought he had made a valid homestead entry, but upon its cancellation abandoned it.

This being all the testimony the court was asked by the defendant to declare the law as follows:

“The fact that ...