Kriling v. Cramer

• Decision Date: 16 January 1911
• Citation: 133 S.W. 655,152 Mo.App. 431
• Parties: FRANK P. KRILING, Respondent, v. MILTON CRAMER, Appellant
• Court: Kansas Court of Appeals

133 S.W. 655

152 Mo.App. 431

FRANK P. KRILING, Respondent, v. MILTON CRAMER, Appellant

Court of Appeals of Missouri, Kansas City

January 16, 1911

Appeal from Cooper Circuit Court.--Hon. Wm. H. Martin, Judge.

AFFIRMED.

Judgment affirmed.

W. M. & Roy D. Williams and C. D. Corum for appellant.

(1) The court erred in permitting the plaintiff to testify to conversations and negotiations prior to the execution of the written contract. These were merged in the writing. The written agreement required the plaintiff to pay sixty dollars per acre for the land, the deed to be made and possession delivered on the first of January, 1909. The legal effect of the written contract was to require the payment by Kriling for the land in cash at the time of the execution of the deed and delivery of the possession of the land to him. Parol evidence contradicting the legal effect of the contract was incompetent. Rodney v. Wilson, 67 Mo. 123; Jones v. Shaw, 67 Mo. 667; Huntington v. Railroad, 175 F. 532. (2) Money paid on an executory contract for the purchase of lands cannot be recovered on the sole ground that the contract is not sufficiently evidenced by a writing as required by the Statute of Frauds. 2 Warvelle on Vendors sec. 930; Galway v. Shields, 66 Mo. 313. In the latter case it was held that, although the contract might not be enforceable against the defendant because within the Statute of Frauds, yet, unless the defendant refused to carry it out, the plaintiff could not recover the money advanced on it. (3) Plaintiff's evidence failed to show a breach of the contract by the defendant or his refusal to perform it. Defendant had the land surveyed as required by the contract and, while it is true that a half or three-quarters of an acre north of the road was included in the survey, for reasons stated in the record, still defendant never refused to convey the land south of the road to the plaintiff and plaintiff never tendered the money and demanded a deed therefor. Laffey v. Kaufman, 66 P. 471; Hunt on Tender, sec. 12. (4) Plaintiff is not entitled, in this form of action, to recover payments made by him, in the absence of a showing that defendant refused, upon demand, to carry out the contract on his part. 2 Warvelle on Vendors, secs 918-926.

John & James W. Cosgrove for respondent.

(1) The evidence show that the manner of payment was by mutual mistake and oversight, left out of the writing, and it was not error for the trial court to permit oral testimony to show what the real contract was. Wheeler v. Land Co., 193 Mo. 289; O'Day v. Comm, 131 Mo. 327 and 328; Moffatt v. Bulsom, 96 Cal. 106; Dorsey v. Haggard, 5 Mo., side page 421 (Houck's Ed.); Black River Lumber Co. v. Warner, 93 Mo. 384; Fender v. Haseltine, 106 Mo.App. 31. (2) Learned counsel for appellant contend that although there was from one-half to three-quarters of an acre on the north of the road included in the survey, appellant is not in default. There is no definite evidence as to how much land was on the north side of the road. The contract was for the land on the south side of the road only and the failure to have the land south of the road surveyed on or before the date specified, put the defendant in default. The contract being within the statute, could not be pieced out by parol. Boyd v. Paul, 125 Mo. 9; Ringer v. Holtzclaw, 112 Mo. 519, and cases cited. (3) The defendant having refused to perform by having the land surveyed and tendering a deed, plaintiff was entitled to recover the money paid under said agreement. The defendant could not keep the land and the money too, and plaintiff was entitled to recover as of money had and received. Davis v. Real Estate Co., 115 Mo.App. 338; Montgomery v. Wise, 138 Mo.App. 176; McDonald v. Lynch, 59 Mo. 350; Longacre v. Longacre, 132 Mo.App. 197. This is an action for money had and received by the defendant from the plaintiff. It is just and right that he should repay the money when he refused to convey the land. Montgomery v. Wise, supra 187. (4) The judgment is for the right party and should be affirmed. The defense is without equity and is unconscionable. The law will not permit a party to receive part payment for the sale of real estate and then refuse to convey and keep the money paid. This is too well established to need further citation of authorities, and the judgment of the trial court should be affirmed. Evidence of the manner in which the purchase price was to be paid was not prejudicial to any right of the defendant as that question became immaterial in view of defendant's refusal to offer performance, and the judgment of the trial court should be affirmed. Sec. 2082, R. S. 1909; Atkin Bro. Co. v. Grain Co., 130 Mo.App. 542; Woody v. Railroad, 104 Mo.App. 678; Hanley v. Holton, 120 Mo.App. 393.

OPINION

JOHNSON, J.

This is a suit to recover two hundred and fifty dollars, 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 sixty dollars 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 two hundred and fifty dollars 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 him afterwards and ask him to perform his part of the contract? A. Yes, sir; I did, and he refused to.

"Q. What did he say when he refused? A. He said he wouldn't do nothing, or he wouldn't say nothing.

"Q. What did you offer to do? A. I offered to take the land--all the land south of the road, and pay him for it, and I will yet.

"Q. Did he ever have the--A. I can pay him for it any time if he wants it. All I ask of him is to survey the land and produce the deed. I told him then I would, and I will yet.

"Q. Now, Mr. Kriling, what was said about a survey? A. Well, the land was to be surveyed, and all the land was to be south of the county road.

"Q. Has any survey of that ever been made? A. No, sir; there was a survey made out there, but it was not according to the contract. He surveyed the land north of the road, and I never agreed to buy no land north of the road.

"Q. Has Mr. Cramer ever tendered you a deed? A. No, sir.

"Q. Has he ever told you the number of acres there was there? A. No, sir.

"Q. So that you could have a deed prepared? A. No, sir.

"Q. Do you...