Scott v. Lewis

• Decision Date: 05 January 1914
• Parties: SCOTT v. LEWIS.
• Court: Missouri Court of Appeals

163 S.W. 265

177 Mo. App. 8

SCOTT v. LEWIS.

Kansas City Court of Appeals. Missouri.

January 5, 1914.

Rehearing Denied February 2, 1914.

1. DAMAGES (§ 189)—BREACH OF CONTRACT— PROOF.

Where plaintiff, in an action for damages from breach of an agreement to loan money, made out a prima facie case by showing the breach and damage to him, defendant, by asking an instruction that plaintiff was entitled only to nominal damages, could not destroy plaintiff's prima facie case, or require him to prove it more conclusively.

2. VENDOR AND PURCHASER (§ 335)—BREACH BY PURCHASER — FORFEITURE OF EARNEST MONEY.

One who agreed to purchase land and paid a certain sum down, by failure to pay the remainder at the stipulated time, forfeited his right to recover any part of the amount paid to the vendor, who was willing to perform.

Appeal from Circuit Court, Sullivan County; Fred Lamb, Judge.

Action by Robert Scott against F. M. Lewis. From a judgment for plaintiff, defendant appeals. Affirmed.

Earl F. Nelson, of Jefferson City, for appellant. T. B. Davis, of Lucerne, and D. M. Wilson, of Milan, for respondent.

TRIMBLE, J.

Suit for damages for breach of a contract to lend plaintiff money with which to complete the purchase of a farm. Plaintiff, in reliance upon the alleged contract to lend him the necessary money, entered into an oral contract with the owner of the farm for its purchase, and paid $400 down on same. Owing to the failure of defendant to comply with his agreement to lend, plaintiff was unable to complete the purchase, and lost the payment he had made. Hence this suit.

The farm plaintiff desired to buy belonged to a man named Cousins, who was demanding $4,600 for it. Plaintiff had only $1,100 of his own, and went to defendant and told him he, plaintiff, could buy the Cousins farm if defendant would lend him $3,500 on it. Defendant agreed to do this. Relying on this agreement, plaintiff agreed with Cousins to buy the farm at $4,600. The warranty deed from Cousins to plaintiff, and plaintiff's deed of trust to defendant, were to be executed the following Wednesday and put up in the bank. Simultaneously with the putting up of these deeds, plaintiff was to pay $400 down on the place, and the balance, $4,200, was to be paid February 1, 1911. On the following Wednesday, as plaintiff was on his way to the bank to meet Cousins and have the deeds made and pay the $400, he passed the place where defendant was stopping and told defendant he was on his way to pay the $400, and to have the deeds made, and wanted to know of him if he could surely depend on his letting him have the money. To this defendant replied, "Yes, you can." Relying upon this assurance, thus doubly made, plaintiff paid Cousins the $400, and the warranty deed from Cousins to plaintiff and the trust deed from plaintiff to defendant were executed and put up with the bank to be held until February 1, 1911, when the $4,200 was to be paid and the deeds delivered. Along in December defendant started to his home in Arkansas. Plaintiff drove him to the station, and on the way plaintiff asked him what he should do to get the money when February 1st arrived. Defendant...