Holmes v. Leadbetter

• Decision Date: 10 June 1902
• Citation: 69 S.W. 23,95 Mo. App. 419
• Parties: HOLMES v. LEADBETTER.
• Court: Missouri Court of Appeals

69 S.W. 23

95 Mo. A. 419

HOLMES v. LEADBETTER.

Court of Appeals at St. Louis, Missouri.

June 10, 1902.

NOVATION — WEIGHT OF EVIDENCE — DEMURRER TO EVIDENCE — ACTION BEFORE JUSTICE — PLEADING — ACTION BY WIFE.

1. Plaintiff and defendant made a written contract for the exchange of certain properties, and by its terms defendant was to pay plaintiff a sum of money. Afterwards, owing to questions raised concerning the title of plaintiff, which it was agreed should be "perfect," a new agreement between the parties was made, and afterwards performed. Held, that no right of action remained to plaintiff for the sum of money mentioned in the original contract, and that the new agreement amounted to a novation.

2. A party to an action is bound by his evidence as a witness with like effect as an admission in a pleading.

3. Every reasonable inference which the testimony will bear in plaintiff's favor should be given, in passing upon the correctness of a demurrer to the evidence; but, where plaintiff's own testimony excludes any fair inference warranting a recovery, the trial court correctly instructs to find for defendant.

4. In an action begun before a justice of the peace, any defense which the facts may develop is available to defendant without pleading the same.

5. A married woman has the right to maintain an action at law before a justice of the peace without joining her husband.

(Syllabus by the Judge.)

Appeal from circuit court, Lawrence county; Henry C. Pepper, Judge.

Action by Erminia Holmes against L. D. Leadbetter. Judgment for plaintiff before a justice was reversed in the circuit court, and plaintiff appeals. Affirmed.

Bloss & Guthrie, for appellant. John Moon, for respondent.

BARCLAY, J.

This action was instituted before a justice of the peace of Lawrence county, Mo., in August, 1901, to recover $200, mentioned in the following contract, which forms the foundation of plaintiff's claim: "Ash Grove, Mo., Dec. 2nd, 1899. Contract made this above day and date by and between Erminia Holmes and L. D. Leadbetter, to wit: I, L. D. Leadbetter, agree to exchange my right and interest in eighty acres of land, with one-half of wheat now growing and in possession of said tract of land, and two hundred dollars in cash, for her, Erminia Holmes', one-third interest in farm owned by her husband E. R. Gresham: provided she, Erminia Holmes, can make a perfect title to same. Transfer to be made any day. [Signed] L. D. Leadbetter. Erminia Holmes." The signers of the foregoing document are the defendant and plaintiff in this case. The second signer, Mrs. Holmes, is a married woman, who sues alone. The short statement on which the case began avers the execution of the contract on the day of its date, and that plaintiff complied on her part in all respects with its terms. It then charges that defendant, Mr. Leadbetter, failed to pay the money mentioned therein. It is for that alone, with interest and costs, that plaintiff sues. Plaintiff had judgment before the justice, but on appeal to the circuit court the learned trial judge at the close of the evidence instructed the jury to find for the defendant. They did so, and judgment was entered accordingly. Plaintiff appealed in the ordinary way.

The gist of the defense is that after the contract was made, and before any attempt to execute it, Mr. Leadbetter became sceptical of plaintiff's ability to make a "perfect title," which the contract demanded of her. The facts concerning her title are not very fully disclosed by the record. So far as we can discern them, it appears that she had been previously married to a Mr. Gresham, who died, leaving her and some children surviving him. The question which Mr. Leadbetter raised was whether she really had a one-third interest in fee simple in the farm, or only that interest as dower for her lifetime. The parties seem to have been then upon an entirely friendly footing, and agreed to refer the question to an attorney, who advised them that plaintiff could not make a perfect title to a one-third interest in the land. The consummation of the original contract was thus checked. The present husband of the plaintiff thereupon had a conference with the defendant on behalf of plaintiff. After some negotiation between Mr. and Mrs. Holmes and defendant, it was finally agreed that the contract should be executed in other respects, except that defendant should retain the $200 in order to protect himself against liability to pay the children of Mr. Gresham for their interest in one-third of the property in the event of plaintiff's death. It is unnecessary to state particularly the features of the final agreement. It is plain to us, however, that, owing to the condition of the title which Mrs. Holmes possessed, a new arrangement was concluded between the parties for the exchange of the property mentioned, in which agreement the payment of the $200 by defendant, as originally stipulated, was abandoned by plaintiff. Some passages in plaintiff's evidence which deal with this proposition are as follows: "Q. Didn't you make an arrangement with Leadbetter that you would trade your interest in...