Kriling v. Cramer

• Decision Date: 16 January 1911
• Parties: KRILING v. CRAMER.
• Court: Missouri Court of Appeals

133 S.W. 655

152 Mo. A. 431

KRILING v. CRAMER.

Kansas City Court of Appeals. Missouri.

January 16, 1911.

1. FRAUDS, STATUTE OF (§ 110)—DESCRIPTION OF LAND—SUFFICIENCY.

A contract to sell 160 acres of land described as all land occupied by grantor south of a county road, except 40 acres adjoining a certain tract on the north and west, sufficiently describes the land sold within the statute of frauds, since the contract affords means of identifying the land.

2. VENDOR AND PURCHASER (§ 344)—BREACH BY VENDOR—TENDER BY PURCHASER—NECESSITY.

Provision in a contract to convey for delivery of the deed and payment of the price at the same time makes the covenants dependent, and, to recover for breach of the vendor's contract, the purchaser must show performance or readiness and willingness to perform on his part.

3. VENDOR AND PURCHASER (§§ 170, 344)— BREACH BY VENDOR—TENDER BY PURCHASER—NECESSITY.

A contract to convey at a specified price per acre, requiring a survey and the deed to be made before a particular date, did not make the agreement to survey dependent on payment of the purchase price, so as to require the purchaser to make a tender on demanding a deed, or before suing to recover a payment on the vendor's breach.

4. CONTRACTS (§ 245)—EVIDENCE (§ 419)— TESTIMONY AFFECTING WRITINGS.

All prior or contemporaneous oral agreements are merged in a written contract, but where a statement of consideration in a deed or written contract appears as a mere recital of fact, and not as an expression of intention to regard the nature of the consideration as a contractual subject, it is explainable by parol evidence.

5. EVIDENCE (§ 419)—TESTIMONY AFFECTING DEEDS—CONSIDERATION.

Under a contract to convey at a specified price per acre and reciting part payment, parol evidence was admissible on the purchaser's part to show that it was agreed that he should give his note for the balance.

6. APPEAL AND ERROR (§ 1050)—HARMLESS ERROR—ADMISSION OF EVIDENCE.

In an action for breach of a contract to convey, any error in admitting parol evidence to show that the purchaser was not required to pay a balance of the purchase price in cash was harmless, where the vendor broke the contract before the purchaser was required to tender payment.

Appeal from Circuit Court, Cooper County; Wm. H. Martin, Judge.

Action by Frank P. Kriling against Milton Cramer. Judgment for plaintiff, and defendant appeals. Affirmed.

W. M. & Roy D. Williams and C. D. Corum, for appellant. John & Jas. W. Cosgrove, for respondent.

JOHNSON, J.

This is a suit to recover $250, with interest, paid by plaintiff to defendant on the purchase price of a farm defendant sold plaintiff, and subsequently failed to convey. A trial before a jury resulted in a verdict and judgment for plaintiff for the sum demanded in the petition, and defendant appealed.

The controversy arises out of a written contract made by the parties October 20, 1908, by the terms of which defendant sold to plaintiff a part of his farm in Cooper county at the price of $60 per acre. The contract was as follows: "Know all men by these presents that this agreement, made and entered into this 20th day of October, 1908, by and between Frank P. Kriling of Polk county, Missouri, and Milton Cramer of Cooper county, Missouri, witnesseth: That the said Frank P. Kriling has this day bought from the said Milton Cramer about 160 acres of the land now occupied by the said Milton Cramer, described as follows: All of the land south of the county road except 40 acres adjoining Thoma Place, on the north and west, for and in consideration of $60.00 per acre. The above tract to be surveyed and deed made on or before January 1st, 1909, and possession given January 1st, 1909, and the said Frank P. Kriling pays $250.00 as part purchase price on said farm, receipt of which is hereby acknowledged. Frank P. Kriling. Milton Cramer." Plaintiff made the "down" payment of $250 as provided in the contract. He alleged in his petition and testified, over the objection of defendant, that the contract failed to express the whole agreement of the parties with reference to the consideration; that it was the agreement that plaintiff should not be required to pay the remainder of the purchase price in money on the delivery of the deed to him, but should execute and deliver to defendant his promissory note for the amount of the unpaid purchase money secured by a deed of trust on the land. This testimony was not contradicted, but defendant rests on his objection to its admissibility.

Defendant had his farm surveyed before the date fixed in the contract for the delivery of the deed, but he did not have the surveyor separately survey the land south of the public road. It appears that a small part of the farm—a tract containing less than an acre— was north of the road. At the direction of defendant it was included in the survey, and the surveyor was unable to state the exact quantity of the land south of the road. Plaintiff testified: "Q. Did you ever call on ...