Morris v. Mahn
| Decision Date | 05 December 1921 |
| Parties | J. T. MORRIS, Respondent, v. J. H. MAHN, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court of Webster County.--Hon. Charles H Skinker, Judge.
AFFIRMED.
Judgment affirmed.
J. P Smith and L. P. Main for appellant.
(1) The agreement as to the insurance policy, if made as plaintiff claims as a part of the original contract, was within the Statute of Frauds and must be in writing. Duncan v Spencer, 211 S.W. 698; Reigart v. Mfrs. Coal & Coke Co., 217 Mo. 142; Ringer v. Holzclaw, 112 Mo. 523; Boyd v. Paul, 125 Mo. 13; Nally v. Reading, 107 Mo. 350. (2) A memorandum of the agreement having been entered into which made no mention of the insurance policy, evidence concerning it was inadmissible as seeking to add to the terms of the written instrument. Duncan v. Spencer, 211 S.W. 698; Boyd v. Paul, 125 Mo. 10; Hei v. Heller, 10 N.W. 620, 622; Bucklew v. Bryon, 153 Mo.App. 673. (3) The statement in justice court being based on conversion will not support a judgment under evidence tending to show breach of contract. Sandeen v. Railway Co., 79 Mo. 278; Carson v. Cummings, 69 Mo. 325; Parker v. Rhodes, 79 Mo. 88; Lumpkin v. Collier, 69 Mo. 170.
Dickey & Dickey for respondent.
(1) The complete performance of a parol agreement for the sale of land, by one contracting party precludes the other from interposing the Statute of Frauds as a defense to an action upon it. Davis v. Greenlee, 212 S.W. 22, 25; Bless v. Jenkins, 129 Mo. 647, 657; Maupin v. C. R. I & P. Ry. Co., 171 Mo. 187, 197; Cape Girardeau and Chester R. R. Co. v. Wingerton, 129 Mo.App. 426, 431; Lambert v. St. L. & G. Ry. Co., 212 Mo. 692, 707; Young v. Montgomery, 28 Mo. 604. (2) The evidence shows that the statement drawn up by Mr. Conrad for appellant and respondent was intended to be, and was, only a statement regarding the payment of an abstract and was not intended to be, and was not, a memorandum of the contract of sale and under the holdings of our courts it was not sufficient as such a memorandum had it been so intended. Holding v. Kinsinger, 191 S.W. 1078; Kelly v. Thuey, 143 Mo. 422. (3) The formal technical rules of pleading and nice distinctions separating different forms of action, such as conversion and breach of contract, do not apply to suits before justices of the peace. Forms and formal pleadings are dispensed with in Justice Courts. Force v. Squier, 133 Mo. 306; Caughlin v. Lyons, 24 Mo. 533; Glenn v. Weary, 66 Mo.App. 75; Hale v. Van Dever, 67 Mo. 732. (4) If formal pleadings were required and nice distinctions made as to different kinds of actions in justice courts, still there is sufficient evidence in this case to sustain the judgment of the trial court because an action for conversion will be sustained by proof in plaintiff either of a legal or equitable right of property or of a right to the immediate possession of it. Possession may be actual or constructive. Swinney v. Gouty, 83 Mo.App. 549, 552; O'Toole v. Lowenstein, 188 S.W. 1123. (5) Appellant's attack on the validity of the judgment rendered, upon the ground that the action sounded in conversion while the evidence tended to show a breach of contract, is not reviewable because the rule is well settled that an appellate court will not convict the trial court of error in such cases where the entire evidence is not presented in the abstract. Gooden v. Modern Woodmen of America, 194 Mo.App. 666, 675; Johnson v. Kansas City Electric Light Co., 232 S.W. 1094, 1097; Fronk v. Fronk, 159 Mo.App. 543, 546; Harrison v. Pounds, 190 Mo. 349, 351.
--This suit was brought in the justice court for the recovery of the sum of $ 32.20 unearned premium on a fire insurance policy. The statement filed in the justice court sets out that the plaintiff on or about June 21, 1919, purchased from defendant certain real property situated in Marshfield, Mo. That the buildings on same were insured for $ 1150, paid up policy, and that there was at that time an unearned premium to the amount of $ 32.20. That by agreement between plaintiff and defendant said policy was to be and was placed with the deed in escrow in the bank, to be delivered to plaintiff with the deed on approval of the abstract as a part of the consideration moving in said real estate purchase. That after the payment of the purchase money by the plaintiff, the defendant, without plaintiff's knowledge or consent, obtained possession of the policy, had same cancelled and received the unearned premium and appropriated the same to his own use and refused to refund the same to plaintiff, wherefore judgment was asked. The case was tried in the circuit court on appeal from the justice court before the circuit judge sitting as a jury, who rendered a judgment in favor of the plaintiff and it is from this judgment that defendant appeals.
It is admitted by both parties that when this deal was agreed upon between plaintiff and defendant for the purchase of this house and lot that the whole contract was oral; that the amount to be paid for the same by plaintiff was $ 1200; that while the abstract was being made up some question came up about the abstract expense, and it is clearly shown that this controversy brought about the execution of the following writing, which written memorandum, as we view it, is the turning point in this case. As stated before, both parties admitted that the original contract was all oral. Both now admit that the plaintiff fully carried out all of the terms that he was obligated to perform. They also admit that during the pendency of the transaction, after the oral contract was made, a controversy came up about the expense of the abstract, and both admitted that when the contract was originally made $ 100 was deposited in the Bank of Marshfield by the plaintiff, and that afterwards a mortgage on the property coming due the defendant desired the sum of $ 600 to be paid to him by the plaintiff, and that the plaintiff put up the $ 600 in lieu of the $ 100 that had already been deposited by him.
There is a controversy over whether the insurance policy was intended to go with the trade and form a part of the consideration, the plaintiff contending that the defendant agreed that the unearned premium and policy would be delivered when the purchase money was paid; the defendant on the other hand contending that nothing was said concerning it. Plaintiff testified that the policy was put up in escrow by the defendant when the trade was originally made, and at the same time he, the plaintiff, deposited the $ 100, but they further agreed that when this controversy came up about the expense of the abstract and the question of paying $ 600 as part purchase price instead of $ 100, they dropped into the law office of Seth Corad, a lawyer at Marshfield, Mo., and he drew up the following memorandum, which they both signed:
Conrad testifies, over the objection of defendant, as follows:
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