McDonald v. Lynch

• Decision Date: 31 March 1875
• Citation: 59 Mo. 350
• Parties: PATRICK MCDONALD, Plaintiff in Error, v. MICHAEL LYNCH, et al., Defendants in Error.
• Court: Missouri Supreme Court

59 Mo. 350

PATRICK MCDONALD, Plaintiff in Error,

v.MICHAEL LYNCH, et al., Defendants in Error.

Supreme Court of Missouri.

March Term, 1875.

Error to St. Louis Circuit Court.

M. O. Reily, for Plaintiff in Error.

W. Patrick, for Defendant in Error.

NAPTON, Judge, delivered the opinion of the court.

This was a suit for $50, before a justice, where the plaintiff got a judgment, but on appeal to the Circuit Court, the court, on the evidence, found for defendant, and there would be no question for this court to decide, had not the Circuit Court refused an instruction asked for the plaintiff.The facts were that the plaintiff and defendant agreed upon a sale and purchase of a lot in the city of St. Louis, at a price named, and plaintiff paid the defendant $50 to bind the bargain.But upon their subsequent meeting at the office of a real estate agent, and a tender of a deed by defendant, the plaintiff declined to receive it, because it conveyed the lot subject to the taxes of 1872.In other respects the deed was conceded to be just such a one as he had contracted for.The plaintiff swore on the trial that he(as purchaser) was to have a title exempt from all taxes; and the defendant swore that the agreement was that the taxes of 1872 were expressly excepted.There was some proof that the plaintiff's evidence, on the trial before the justice, did not exactly correspond with the statement in the Circuit Court, and therefore the Circuit Court, where the whole case was submitted without any jury, might very well have found as it did.

But the plaintiff asked this instruction: “If the court believe from the evidence, that the plaintiff paid the sum of $50 to defendant, on account of a parol agreement for the purchase of land, the terms of which were and are in dispute between the parties, and are unsettled and not executed, then the plaintiff is entitled to recover said sum of $50 so paid.”

This instruction was...