Gulledge v. Davis.

Decision Date02 July 1924
Docket NumberNo. 3525.,3525.
Citation264 S.W. 441
PartiesGULLEDGE v. DAVIS.
CourtMissouri Court of Appeals

Appeal from Circuit Court, Dunklin County; W. S. C. Walker, Judge.

Action by James A. Gulledge against A. 0. Davis. Judgment for defendant, and plaintiff appeals. Affirmed.

W. E. Edmonds and E. R. Lentz, both of Bernie, for appellant.

C. M. Edwards, of Malden, and Smith & Zimmerman, of Kennett, for respondent.

BRADLEY, J.

This cause is in unlawful detainer. Verdict and judgment went for defendant, and plaintiff appealed.

Defendant occupied the premises, which are farm lands, in 1922 as the tenant of W. H. Petty, who was the owner at the time of the lease. Defendant's term under Peak expired December 31, 1922, November 20, 1922, plaintiff purchased the land from Petty. Defendant claims that, some time in the fall of 1922, and before Petty sold the land, he verbally rented from Petty for a term ending December 31, 1923, and that plaintiff, on January 2, 1923, and while the premises were yet in the possession of defendant, ratified said lease from Petty. Such was the theory upon which the cause was tried, and such is the theory predicated in the instructions. If defendant's defense is supported by the evidence that he can escape the statute of frauds (section 2169, R. S. 1919), otherwise he cannot, because at the time he claims to have made the contract with Petty in the fall of 1922, such leasing contract could not have been performed within one year.

There is but one question here. Was there substantial evidence tending to show that defendant, in the fall of 1922, verbally rented from Petty for the year 1923, and if so, was there substantial evidence tending to show that plaintiff on January 2, 1923, ratified such leasing? There is no question but that defendant occupied the premises in 1922 as the tenant of Petty. Defendant was to pay Petty $350 as rent, and paid that amount. Petty and defendant differ about their agreement as to some new ground, but that is not material, since Petty made no claim that defendant was to pay more than $350.

As appears in an additional abstract, defendant testified as follows:

"Q. Did you have a contract with Mr. Petty for the rent of that place for the year 1023? A. I did.

"Q. Mr. Davis, at the time that contract was made with you—by you, with Mr. Petty—was the plaintiff in this case, Mr. Gulledge, present? A. Yes, sir; he was.

"Q. What were the terms of that contract? A. Three hundred and fifty dollars.

"Q. What did the plaintiff say with reference to the contract, if he bought the place? A. Well, he told me I could have the place, that I wouldn't have to move, if he bought the farm.

"Q. Under the same terms that you rented it from Mr. Petty? A. Yes, sir.

"Q. Mr. Gulledge testified to some conversation between you and him in December before the first of this year, about the price; did you have a conversation with him? A. I did.

"Q. What was that conversation? A. Well, he wanted to change the contract, the Petty contract.

"Q. Just tell what it was. A. And he told me that—I says, `You know have rented the farm for another year, and if you bought the farm I would hate to be here against your will; I'm not built that way;' and he says, `That's perfectly all right, I would just as soon you would be on the place as anybody;' and he wanted to change the trade and we failed to agree on the change in the contract.

"Q. Did you stay there under the contract then? A. stayed there until the second day of January.

"Q. Are you still there? A. Yes, sir.

"Q. What happened...

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8 cases
  • Cushulas v. Schroeder & Tremayne
    • United States
    • Missouri Court of Appeals
    • January 7, 1930
    ... ... to will support a judgment. Headdy v. Tie Co., 262 ... S.W. 447, and cases there cited; Gulledge v. Davis, ... 264 S.W. 441; City v. Construction Co., 184 S.W ... 939, and cases cited. (6) Since the petition was not attacked ... below, every ... ...
  • Cushulas v. Schroeder and Tremayne, Inc.
    • United States
    • Missouri Court of Appeals
    • January 7, 1930
    ...denied that conclusion evidence unobjected to will support a judgment. Headdy v. Tie Co., 262 S.W. 447, and cases there cited; Gulledge v. Davis, 264 S.W. 441; City v. Construction Co., 184 S.W. 939, and cases cited. (6) Since the petition was not attacked below, every intendment must be in......
  • Tucker v. Kollias
    • United States
    • Missouri Court of Appeals
    • May 7, 1929
    ... ... (a) ... Because this evidence was not objected to. Herrin v ... Stroh Bros. Delivery Co., 263 S.W. 871; Gulledge v ... Davis, 264 S.W. 441. (b) Because it was substantial ... evidence that the patella was fractured when struck by ... defendant's automobile ... ...
  • Mayne v. May Stern Furniture Co.
    • United States
    • Missouri Court of Appeals
    • November 5, 1929
    ...988; Wood v. Consolidated School District (Mo. App.) 7 S.W.(2d) 1018; Headdy v. Wright Tie Co. (Mo. App.) 262 S. W. 447; Gulledge v. Davis (Mo. App.) 264 S. W. 441. In the perilous situation with which he was thus suddenly faced, plaintiff chose what seemed to him to be the only remaining a......
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