Ricketts v. Hart

• Decision Date: 30 May 1899
• Citation: 51 S.W. 825,150 Mo. 64
• Parties: RICKETTS v. HART et al.
• Court: Missouri Supreme Court

51 S.W. 825

150 Mo. 64

RICKETTS v. HART et al.

Supreme Court of Missouri.

May 30, 1899.

APPEAL — RECORD — VENDOR AND PURCHASER.

1. While the record proper must show the filing of the bill of exceptions, the record entries need not be set out in full in the abstract. A narrative of the several steps taken is sufficient.

2. Failure of a petition for damages for nonperformance of a land contract to allege performance on plaintiff's part is cured by denial of such performance in the answer.

In banc. Appeal from circuit court, Knox county; E. R. McKee, Judge.

Action by Samuel L. Ricketts against H. W. Hart and others. There was a judgment for plaintiff, and from an order granting a new trial he appeals. Reversed.

O. D. Jones, for appellant. C. D. Stewart, H. T. Botts, and L. F. Cottey, for respondents.

PER CURIAM.

This cause was heard at the October term, 1898, of this court, and an opinion, prepared by Judge WILLIAMS, was concurred in by all the members of this court as then constituted. A rehearing was granted, and the cause has been reargued.

An amended abstract of the record has been filed, since the former opinion, to meet the objection of respondent that the abstract failed to show the filing of the bill of exceptions. As amended, it shows that at the June term, 1897, of the Knox circuit court, plaintiff procured leave of the court to file a bill of exceptions in vacation on or before 90 days after June 16, 1897; that afterwards, on the 19th day of July, 1897, he presented to Judge E. R. McKee, the judge of the Knox circuit court, said bill of exceptions, and it was duly signed by said judge, and ordered filed and made part of the record, and was filed and indorsed "Filed" on July 20, 1897, in the office of the clerk of the circuit court of Knox county. This abstract, as amended, obviates the objection which respondent urged so strenuously on the first hearing. No counter abstract has been filed by respondent, and no order requiring the clerk to certify the record in dispute. It has been uniformly ruled by this court that the record proper must, if in term time, show the filing of the bill of exceptions, and if the time be extended in term time the record proper must show it, and the minute of the clerk in vacation must show the filing within the time allowed; that the recital in the bill cannot supply that defect, as in the very nature of the case the bill of exceptions is no part of the record until signed and filed by leave of the court. State v. Harris, 121 Mo. 445, 26 S. W. 558; Walser v. Wear, 128 Mo. 652, 31 S. W. 37. Where there is a conflict between the recital of the filing in the bill and the recital in the record proper, the latter must, and does, control. But while the record proper must show the filing, it has never been ruled, under our statute, permitting the bringing of appeals to this court by certificates and abstracts, that the record entries must be set out in full. A narrative of the several steps is held sufficient, as the statute contains within itself the means of protecting this court against imposition by false statements of the record. McDonald v. Hoover (Mo. Sup.) 44 S. W., loc. cit. 336; Kincaid v. Griffith, 64 Mo. App. 673; Stewart v. Sparkman, 69 Mo. App. 456. As already said, the amended abstract shows the leave to file, and the filing by the clerk within the time allowed. Accordingly, the motion to dismiss the appeal must be, and is, overruled.

2. As to the sufficiency of the pleadings to support the verdict, we approve and adopt the opinion of Judge WILLIAMS on that branch of the case, and his statement of the case, in the following words:

"This case was certified to this court by the St. Louis court of appeals. One of the judges of that court dissented from the opinion of the majority, holding that said opinion was in conflict with prior decisions of said court, and also of this court. 73 Mo. App. 647. Hence the case comes here for final determination, in accordance with constitutional requirements to that effect. The sufficiency of the petition is questioned, and it is necessary therefore to set it out in full in this statement. It is as follows: `Plaintiff states: That on the 29th day of July, A. D. 1896, the defendants, by their bond for deed herewith filed, signed by each of them by their initials, as in the caption stated, sealed, and acknowledged, and thereby acknowledged themselves to owe and be indebted to him (the plaintiff) in the sum of fourteen hundred dollars, on the sole condition that the defendant H. W. Hart, and mentioned in the body of the bond as H. Walter Hart, upon the payment to him by the plaintiff of the sum of forty-six hundred dollars at times and on terms as follows, namely: Thirteen hundred dollars to be paid November 1, 1896, and twenty-six hundred dollars, in the form of an incumbrance then on the land, to be assumed by plaintiff, — all interest to be paid up to November 1, 1896, on said incumbrance by defendant Hart, — should then convey to plaintiff, by good and sufficient warranty deed in common form, the following lands, namely: All of the southeast quarter of the southwest quarter and the southwest quarter of the southeast quarter, and forty-four acres where residence is located, — all in section 10, township 60, range 12 west, in Knox county, Missouri, being 124 acres, more or less. That the balance of the purchase money was to be due and payable when deed was delivered. That plaintiff, on the faith of said contract and bond for a deed, made by the defendants as aforesaid, on August 13, 1896, paid defendant Hart the sum of seven hundred dollars, and on November 9, 1896, the sum of one hundred dollars, and on November 12, 1896, the sum of one hundred dollars; making, in all, the sum of nine hundred dollars. That defendant Hart has failed and refused, and still fails and refuses, to comply with his part of said contract and bond for a deed, in this: that he has failed and refused to execute and deliver to plaintiff a good and sufficient warranty deed in common form, conveying the title to said lands to plaintiff, subject, only, to an incumbrance of twenty-six hundred dollars, as stipulated in said contract and bond for a deed. That on the 12th day of January, 1897, the plaintiff notified the defendants that, since the terms of the contract remained unperformed, the plaintiff elected to, and did, rescind the contract in said bond for a deed referred to, and that he redelivered possession of said premises, and demanded his money back, and he now sues herein therefor. Plaintiff says that he is damaged by the defendants, by reason of the breach of the terms of said contract and bond for a deed, in the sum of...