Malone v. Harris

• Citation: 6 Mo. 451
• Parties: MALONE v. HARRIS.
• Decision Date: 31 August 1840
• Court: United States State Supreme Court of Missouri

6 Mo. 451

MALONE

v.HARRIS.

Supreme Court of Missouri.

August Term, 1840.

ERROR TO THE CIRCUIT COURT OF SALINE COUNTY.

MILLER, STEWART & HAYDEN, for Plaintiff in Error. 1. The court erred in giving to the jury the instructions asked for by plaintiff. 2d. The court erred in refusing to give all the instructions prayed for by defendant. 1 Marshall, 600; 1 Pirtle's Digest, 458, § 6, title Fraud. 3. The court erred in refusing to set aside the verdict and grant a new trial.

TODD & MCNUTT, for Defendant in Error. 1. The jury might from the evidence believe that the interest of Malone was to procure possession of the plaintiff's money, property and labor, and to defraud him out of it, in which event Harris was not bound to give any notice of rescinding such a fraudulent contract or obtain a return of the property. 2. The property and labor had a fixed cash value, and was received as such; even upon a failure of Malone's performance of his contract, he had no right to return in property, he being first in default in executing the contract. 3. That the contract to take the land as the consideration of the money, property and labor, was never obligatory on Harris, he, Malone, refusing ever to show him the land, that he might make his election. 4. The fact of Malone declining to carry into effect his contract to pay in land, is in law an assumpsit to pay what he has received for it in money. 2 Starkie, 109, 114, 116.

TOMPKINS, J.

Harris sued Malone in the Circuit Court, where he obtained a judgment, to reverse which Malone prosecutes this writ of error. The evidence in the cause shows that some time in the month of May, 1838, Harris, plaintiff in the Circuit Court, loaned to the defendant two hundred dollars on interest, at the rate of twenty-five per cent. per year, and sold a horse at eighty dollars, and labored for him three months, at the rate of twenty dollars per month. The defendant gave evidence to prove that some time after the money was loaned at interest, he and Harris entered into an agreement with each other concerning the sale by the defendant and purchase by the plaintiff of a tract of land in Carroll county, containing one hundred and twenty acres. This agreement was verbal. The land was represented as good wood land, situated on the river and suitable for a wood yard, and it was also proved that the money loaned to Malone, as above mentioned, was to be applied to paying for said land, and that the plaintiff agreed to give the horse above mentioned at the price of eighty dollars, in part payment for said land, and the remainder of the price of the land was to be paid to the defendant at the rate of twenty dollars per month; and it was also proved that the labor was performed to the amount of the land, at the price agreed on. The defendant also gave evidence to prove that no time was mentioned in the agreement when he should make a conveyance of the land to the plaintiff, Harris. Thereupon the plaintiff, Harris, gave evidence that the verbal agreement about the sale of the land was conditional, and the plaintiff was to take the land on condition only that he should be pleased with it when he should see it; and that Malone, at the time of making said agreement, promised and agreed that he would go with Harris to the land, and show it to him; and that Malone neglected and refused to show the land to him upon reasonable request to do so; and that Malone had misrepresented the land to him, at the time of making said agreement; and that after having paid for the land, he demanded a conveyance by deed from Malone, and that it was refused. Malone, the defendant, then gave evidence that the agreement for the sale of the land was absolute, and not conditional, and that Harris agreed to take his word and representations as to the quality and description of the land; and that Harris, after making the contract, had expressed his satisfaction with the agreement he had made; and also, that after Harris had paid for the land and...