Major v. St. Louis Union Trust Co.

• Decision Date: 07 November 1933
• Docket Number: No. 22554.,22554.
• Parties: MAJOR v. ST. LOUIS UNION TRUST CO.
• Court: Missouri Court of Appeals

64 S.W.2d 296

MAJOR v. ST. LOUIS UNION TRUST CO.

No. 22554.

St. Louis Court of Appeals. Missouri.

November 7, 1933.

Appeal from St. Louis Circuit Court; Hartmann, Judge.

"Not to be published in State Reports."

Action by Alexander H. Major against the St. Louis Union Trust Company, executor of the estate of Ken Chapeze, deceased. From a judgment in favor of the defendant, the plaintiff appeals.

Reversed, and cause remanded, with directions.

Joseph Block, of St. Louis, for appellant.

Cobbs & Logan, of St. Louis, for respondent.

BECKER, Presiding Judge.

This is an action for damages against the defendant in its representative capacity as executor of the estate of Ken Chapeze, deceased. The defendant filed a special demurrer to the petition. The court sustained the demurrer, and, plaintiff having refused to plead further, on motion of defendant, dismissed plaintiff's suit and rendered judgment against him. From these orders sustaining the demurrer and giving defendant judgment on the pleadings, plaintiff prosecutes this appeal.

We quote the following from plaintiff's petition:

"Plaintiff, for his cause of action, states: That the said Ken Chapeze, during his lifetime, to-wit, on or about the 23rd day of April, 1930, entered into an oral agreement with the plaintiff whereby plaintiff agreed to sell and deliver to said Ken Chapeze a certain option for the purchase of certain property at and for the price of ten thousand five hundred ($10,500.00) dollars, and in consideration thereof said Ken Chapeze agreed to purchase said option at and for said price.

"That pursuant to said contract and agreement entered into as aforesaid, plaintiff in reliance upon said promise of said Ken Chapeze to exercise said option, and in consideration thereof, abandoned his efforts to further negotiate and sell said option although, at said time, he had an offer of twelve thousand five hundred ($12,500.00) dollars for said option.

"Plaintiff further states that the said Ken Chapeze failed and refused to exercise said option and abandoned and broke his agreement to purchase said option, thereby damaging plaintiff in the sum of two thousand five hundred ($2,500.00) dollars.

"Wherefore, plaintiff prays judgment against the defendant, as executor of the estate of said Ken Chapeze, in the said sum of two thousand five hundred ($2,500.00) dollars, together with his costs herein expended."

Defendant's special demurrer set up as the sole ground therefor that "it appears from the face of the petition that said petition is based upon a contract made for the sale of `an interest in or concerning,' a certain parcel of land. Defendant submits that under the provisions of section 2967, Revised Statutes of the State of Missouri, no action shall be brought `upon any contract made for the sale of lands, tenements, hereditaments, or an interest in or concerning them * * * unless the agreement upon which the action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith.'"

We have for our consideration here whether or not the special demurrer properly presented to the trial court for its determination the issue as to whether the contract upon which the suit is based was within or without the statute of frauds.

The statute of frauds (section 2967, Rev. Stat. of Mo. 1929 [Mo. St. Ann. § 2967, p. 1835]) does not render a contract void, but goes merely to the remedy, and as such is a rule of evidence. It is an affirmative defense, and may be waived. Smith v. Hainline (Mo. Sup.) 253 S. W. 1049, 1052; Heath v. Beck (Mo. App.) 231 S. W. 657; Schmidt v. Rozier, 121 Mo. App. 306, 98 S. W. 791.

With reference to the general rule that the defense of the statute of frauds will be considered waived unless the party avails himself of it in an appropriate manner, our Supreme Court in the Smith Case, supra, said: "What this manner consists in depends upon the facts in each particular case. The rulings to be noted will enable it to be determined what constituted the required manner in this case. It has long been held in this state that where an agreement or contract is denied in the defendant's answer, a reliance upon the bar of the statute need not be pleaded, but may be interposed under the general issue. Springer v. Kleinsorge, 83 Mo. 152; Allen v. Richard, 83 Mo. 55. This, inasmuch as the general denial...