Phelps v. McCaw

• Decision Date: 08 May 1922
• Docket Number: No. 3139.,3139.
• Parties: PHELPS v. WcCAW.
• Court: Missouri Court of Appeals

240 S.W. 845

210 Mo. App. 514

PHELPS v. WcCAW.

No. 3139.

Springfield Court of Appeals. Missouri.

May 8, 1922.

Appeal from Circuit Court, Phelps County; L. B. Woodside, Judge.

Action by John Phelps against H. R. McCAW. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

J. A. Watson, of Rolla, for appellant. Frank H. Farris, of Rolla, for respondent.

BRADLEY, J.

This is an appeal from an order sustaining a demurrer to plaintiff's petition. Plaintiff alleged: That he and defendant owned valuable tracts of land in Phelps county on and adjacent to the state highway between Rolla in Phelps county and Houston in Texas county. That in July, 1920, it was undetermined whether the new road would follow what was known as the Houston road or the Licking road. If the new highway followed the Licking road it would miss the lands of both plaintiff and defendant. That the county court was not desirous of following the Licking route, and opened negotiations with plaintiff for a right of way across his lands. That plaintiff demanded $500, and that the county court was not willing to pay that amount. That in this situation defendant and plaintiff entered into an agreement to this effect: That plaintiff would accept from the county court whatever amount he could get, and that defendant would pay to plaintiff one-half of the difference between what plaintiff received from the county court and $500. That plaintiff received $150 from the county court, and conveyed the right of way as per his agreement with defendant, and that defendant refused to pay the $175, the one-half of the difference.

The grounds set up in the demurrer are: (1) That the allegations of the petition are insufficient to and do not state a cause of action; (2) that the petition fails to show any consideration moving to the defendant and from the plaintiff for the alleged contract; (3) that the petition shows upon its face that the alleged cause of action is within the statute of frauds, and must be supported and based upon a written contract; and (4) that the petition shows upon its face that the alleged cause of action is a mere gratuity and not enforceable.

It was admitted that the alleged contract was not in writing. Section 2169, R. S. 1919, the section of our statute of frauds relied upon by defendant, provides that no action shall be brought upon any contract made for the sale of lands, tenements, hereditaments, or an interest in or concerning them, etc., unless the agreement upon which the action shall be brought, or some memorandum or note thereof shall be in writing and signed, etc. We are of the opinion that the contract between plaintiff and defendant was within the statute of frauds. In effect plaintiff, according to the petition, agreed to convey the right of way for the road, and defendant agreed to pay plaintiff $175 if he would make such conveyance. Here, in effect, is the situation: Defen...