Gist v. Eubank

• Decision Date: 31 January 1860
• Citation: Gist v. Eubank, 29 Mo. 248 (Mo. 1860)
• Parties: GIST, Defendant in Error, v. EUBANK, Plaintiff in Error.
• Court: Missouri Supreme Court

29 Mo. 248

GIST, Defendant in Error,

v.EUBANK, Plaintiff in Error.

Supreme Court of Missouri.

January Term, 1860.

1. The act concerning practice in the revised code of 1855 does not authorize a finding of the facts by the court in cases tried by the court without a jury; findings of the facts will therefore be disregarded by the supreme court in cases arising since the revised code of 1855 went into effect.

2. A petition seeking to enforce a contract concerning land is not rendered defective by reason of an omission to state therein that the contract is in writing; if the defendant rely upon the statute of frauds, he must set it up in his answer as a defence.

Error to Moniteau Circuit Court.

Parsons, for plaintiff in error.

I. The petition does not allege that the contract between plaintiff and defendant was in writing. (22 Mo. 334; Statute of Frauds.) It does not allege that plaintiff took possession of the land with the consent of defendant, nor that he made lasting and valuable improvements. There was nothing to take the case out of the statute. (2 Mo. 126; 20 Mo. 86.) The finding of the facts does not warrant the judgment.

EWING, Judge, delivered the opinion of the court.

This action was begun under the practice act now in force, which does not authorize the finding of facts by the court, as the act of 1849 did. The finding, therefore, will be disregarded; and, as none of the evidence is preserved by the bill of exceptions, the only question for our determination is as to the sufficiency of the petition. In deciding this point, it is unnecessary to consider whether the facts and circumstances alleged in the petition show such a part performance as--supposing the contract not in writing--would be sufficient to take the case out of the statute of frauds and perjuries. Although a petition for the specific performance of a contract respecting real estate omits to state that the contract is in writing, and it does not appear from any of the allegations of the bill that it is not, yet it will be presumed to be a legal and valid contract until the contrary appear, and the petition will not be demurrable; and in such case, if the defendant rely upon the statute of frauds, he must make that defence by answer. (Wildbohn v. Robidoux, 11 Mo. 660; Cozine v. Graham and Baker, 1 Paige, 182.)

The petition alleges the purchase of the land in controversy by the plaintiff and defendant Eubank as partnership property from the defendant Morris, the payment of three of...