Hoyle v. Bush

• Decision Date: 20 November 1883
• Citation: 14 Mo.App. 408
• Parties: CHARLES HOYLE ET AL., Respondent, v. ISADOR BUSH ET AL., Appellants.
• Court: Missouri Court of Appeals

14 Mo.App. 408

CHARLES HOYLE ET AL., Respondent,

v.ISADOR BUSH ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

Nov. 20, 1883.

APPEAL from the St. Louis Circuit Court, LUBKE, J.

Affirmed.

JAMES & C. S. TAUSSIG, for the appellants: The lease does not contain a sufficient description to satisfy the statute of frauds.-- Scarritt v. Church, 7 Mo. App. 174; Whelan v. Scullen, 102 Mass. 204; Ives v. Armstrong, 5 R. I. 567. Parol testimony was inadmissible for the purpose of locating the property.-- King v. Wood, 7 Mo. 383; Schroeder v. Taaffe, 11 Mo. App. 267; Williams v. Morris, 95 U. S. 444.

JAMISON, COLLINS & JAMISON, for the respondents: “The appellants voluntarily entered into the contract, went into possession under it, peaceably occupied the premises according to its terms, and, on the plainest principles of justice, are estopped from disputing its validity.”-- Grant v. White, 42 Mo. 285, 290; Gray v. Gaff, 8 Mo. App. 329; Dimmock v. Daly, 9 Mo. App. 354. Parol evidence is admissible to explain a written instrument.--1 Greenl. on Ev., sects. 293, 336, and also sects. 295 a, 340; Edwards v. Smith, 63 Mo. 119; Philibert v. Burch, 4 Mo. App. 470; Washington Mut. Ins. Co. v. St. Mary's Seminary, 52 Mo. 480; Ferris v. Thaw, 72 Mo. 446; Franklin Ave. German Savings Inst. v. Board of Education, etc., 75 Mo. 408.

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

This is an action for one month's rent upon the covenant of payment in a lease, whereby the plaintiffs demised to the defendants a term of five years in premises described in the lease as follows: “Those sub-cellars and basement above, under the building on southeast corner of Fourth and Elm Streets, known as Nos. 200 and 202 South Fourth Street, reserving from said basement a portion of the west end, and being the same premises now occupied by Isador Bush & Co.” The defence is that the description of the premises demised is so vague and uncertain as not to satisfy the statute of frauds. The plaintiffs at the trial put the lease in evidence against the objection of the defendants, and gave evidence against the like objection tending to show that the defendants were in possession under the lease of the “sub-cellar and basement above at 200 and 202 South Fourth Street, in the city of St. Louis, State of Missouri, where they have been for twelve years;” that they were thus in possession when the lease was made, and that the building is at the southeast corner of Fourth and Elm Streets.

We think there was no error in admitting this evidence. The statute of frauds has no application to this case. The evidence sufficiently shows that the defendants were in possession under the lease; and it is well settled in this state that entire performance of a contract, by one of the contracting parties, takes it out of the statute of frauds. Self v. Cordell, 45 Mo. 345. Accordingly, when there had been a sale by parol...