Shy v. Lewis

• Decision Date: 31 December 1928
• Docket Number: No. 27219.,27219.
• Citation: 12 S.W.2d 719
• Parties: MARTHA A. SHY, R.F. SHY, ANNA L. FERGUSON and MOLLIE McCORKLE, Appellants, v. LEVI LEWIS.
• Court: Missouri Supreme Court

12 S.W.2d 719

MARTHA A. SHY, R.F. SHY, ANNA L. FERGUSON and MOLLIE McCORKLE, Appellants, v. LEVI LEWIS.

No. 27219.

Supreme Court of Missouri. Division One.

December 31, 1928.

Appeal from Morgan Circuit Court. — Hon. H.J. Westhues, Judge.

AFFIRMED.

George F. Longan and Jones & Jones for appellant.

The trial court erred in giving to the jury an instruction on behalf of the defendant in the nature of a demurrer at the close of the evidence offered and introduced by plaintiffs. (1) The memorandum signed by the defendant, contained the name of the vendor and the purchaser, the terms of the sale, and a sufficient description to enable the purchaser from the surrounding facts and circumstances to identify and locate the farm. Springer v. Kleinsorge, 83 Mo. 152; Smith v. Wilson, 160 Mo. 457; Parks v. Bank, 31 Mo. App. 12; Black v. Crowther, 74 Mo. App. 480; Wilcox v. Sonka, 137 Mo. App. 54; Kriling v. Kramer, 152 Mo. App. 437. (2) Where land is sold at auction and is advertised before hand, the advertisement of the sale is a part of the contract of sale. Briggs v. McMochon, 56 Mo. 467; Springer v. Kleinsorge, 83 Mo. 152. (3) Where the vendee takes possession, and pays a part of the purchase price, and receives revenue from the property, it is sufficient take the case out of the Statute of Frauds. Walker v. Owen, 79 Mo. 563; Reynolds v. Reynolds, 45 Mo. App. 622; Tatum v. Brooker, 51 Mo. 148. (4) Where a vendee fails to carry out a contract for the purchase of real estate, the vendor is entitled to recover as his damages the difference between the contract price and the market value of the land at the date the contract was to be closed, deducting whatever was paid on the purchase price. Norris v. Leichworth, 140 Mo. App. 19; Bernard v. Duncan, 38 Mo. 170. (5) In determining the propriety of an instruction in the nature of a demurrer to the evidence, the court should take the most favorable view of the plaintiff's case, which is warranted by the evidence, and every reasonable inference therefrom. Phelan v. Bituminous Paving Co., 115 Mo. App. 423; Deitring v. Transit Co., 109 Mo. App. 524. In passing on defendant's demurrer to the evidence, it was the duty of the court to treat the plaintiff's evidence as true. Hamm v. Railway Co., 245 S.W. 1109; Faulder v. Dry Goods Co., 251 S.W. 138; Hammock v. Hill, 212 Mo. App 193; Sparkman v. Coal Co., 251 S.W. 738.

D.S. Lamm for respondent.

(1) This is a suit at law, and part performance will not satisfy the Statute of Frauds. Nally v. Reading, 107 Mo. 350; Last Chance Mining Co. v. Tuckahoe Mining Co., 202 S.W. 287; Aylor v. McInturf, 184 Mo. App. 691; Reigart v. Coal & Coke Co., 217 Mo. 142. (2) Failure to indicate the location of real estate, either by direct statement or by logical inference from the recitations of the contract itself, renders the contract insufficient. 27 C.J. 273. (3) When it is sought to establish the validity of a written contract for the sale of a farm described by name, the plaintiff must show that it was so generally and commonly known and recognized by that name that it could be readily and beyond dispute identified when so referred to or described. Anderson v. Hall, 188 S.W. 82.

LINDSAY, C.

This is a suit for damages for the alleged breach, by defendant, of a contract for the purchase of a farm owned by the plaintiffs. At the close of the plaintiffs' case the court sustained defendant's demurrer to the evidence. In due course plaintiffs took their appeal to the Kansas City Court of Appeals.

The controlling, and indeed the sole, question considered by the Court of Appeals was whether the signed memorandum of the contract met the requirements of the Statute of Frauds; and upon that question, the Court of Appeals held that the ruling of the trial court was erroneous, reversed the judgment, and remanded the cause; but, deeming its decision to be in conflict with the decision of the St. Louis Court of Appeals, in Mason v. Small, 130 Mo. App. 249, ordered the cause transferred to this court.

The farm in question was one of 395 acres, situated in Morgan County, and came to the plaintiffs by inheritance from their father, T.C. Shy, deceased. The land constituting the farm was sold at an auction sale, held on the farm, on the 6th day of October, 1921. The sale was advertised by printed hand-bills which described the farm as one of 395 acres, situated two and one-half miles southwest of Otterville. Some other details of the description contained in the advertisement will be noticed later. The terms of sale, according to the testimony, were stated at the sale by the auctioneer, as requiring one thousand dollars or fifteen hundred dollars down, and one thousand dollars a year thereafter, the deferred payments to bear five per cent interest. The defendant bid in the land at the sale, for $62.50 per acre. The testimony was that no memorandum of the sale was made at the time by the auctioneer; but, on October 8th, two days after the sale, the defendant, and plaintiff Frank Shy, who, according to his testimony, represented the other plaintiffs as well as himself, signed the following memorandum:

"Contract to Farm of T.C. Shy by Frank Shy to Levi Lewis. Terms: $4000 down when abstract is delivered and principal of $20,687.50 to run five years at five per cent interest, a thousand or more at each interest paying date on $20,687.50 and if place is sold as above stated or any part or all may be paid cash down at time of sale. "LEVI LEWIS, "FRANK SHY."

On October 8th, the defendant and his wife also executed their note for $1500 in favor of Frank Shy, due one day after date, and at five per cent interest per annum. This note had marked upon it: "First payment on farm, T.C. Shy's." Abstracts of title to the land were at about the same time delivered to the defendant, and these were submitted by him to his lawyers who made many requirements in respect to the title. A firm of abstracters was employed to meet such requirements. The requirements were not all fulfilled until some time in August, 1922; and when the abstracts were tendered to defendant, he refused to accept the same, saying "It had been too long." At some time not long thereafter, plaintiffs tendered a deed, which defendant refused.

There was evidence tending to show that plaintiff delivered possession to defendant of a part of the land; but the full circumstances as to this are not clearly shown. It appears from the evidence that for a number of years defendant had rented a part of the land; that after the signing of the memorandum of the land above mentioned, the key to the house on the farm was delivered to defendant. There is testimony also that in the fall of 1922, after the deed was tendered to defendant and refused by him, plaintiffs received some money from defendant as rent for the land. The testimony seems to be to the effect that defendant had possession of the land except a part spoken of as the "south pasture;" also that after refusal of the deed tendered him, defendant wrote plaintiff Frank Shy, that he (defendant) had put the key where he got it, and that Frank Shy found it in the door of the house. There was also testimony admitted, over defendant's objection, that at some time in the fall following the signing of the memorandum, defendant distributed printed circulars advertising the farm for sale, by himself as owner.

Counsel for plaintiffs in their brief argue that where a vendee takes possession, and pays a part of the purchase price, and receives revenue from the property, it is sufficient to take the case out of the Statute of Frauds, and call attention to Walker v. Owen, 79 Mo. 563; Reynolds v. Reynolds, 45 Mo. App. 622; Tatum v. Brooker, 51 Mo. 148. As to the nature of possession of the farm by defendant and the receipt of revenue therefrom, we have stated what is shown by the evidence as definitely as can be determined from the record.

Under the rule followed in a long line of decisions, the question of part performance of the contract, is not one of serious importance, in the instant case. This is an action at law, and not a suit in equity. In Nally v. Reading, 107 Mo. 350, the question of whether a part performance took the case out of the Statute of Frauds was fully considered and determined, and therein it was said, at page 355: "Whatever may be the rule in equity as to the doctrine of part performance, that rule has no place in an action at law, as in the present instance." That rule has been uniformly followed. [Sursa v. Cash, 171 Mo. App. l.c. 403; Aylor v. McInturf, 184 Mo. App. 691; Hillis v. Rhodes, 205 Mo. App. l.c. 449; Davis v. Holloway, 295 S.W. l.c. 108; Shacklett v. Cummins, 178 Mo. App. l.c. 311.] The Nally case is cited with approval in Reigart v. Coal & Coke Co., 217 Mo. 142, 163.

Counsel for plaintiffs also make the contention that as the land was sold at auction, and was advertised beforehand, the advertisement of the sale formed a part of the contract of sale, and call attention to Briggs v. Munchon, 56 Mo. 467, and Springer v. Kleinsorge, 83 Mo. 152. The general rule is stated as follows. 27 Corpus Juris, page 293, section 366: "An auctioneer is the agent of both parties to the sale for the purpose of making and signing a memorandum of contract of sale. A memorandum signed by him is sufficient to charge both the vendor and the purchaser under the statute of frauds, provided it is complete and sufficient as to contents, and provided it is signed by him at a time while his agency still continues." By the same authority however, "the agency of the auctioneer enabling him to sign the memorandum so as to bind the buyer ends with the sale; a memorandum made by him subsequently is insufficient for this purpose, unless the purchaser accepts the memorandum or otherwise assents to the sale." [27 C.J. 265, sec. 313.]

The cases of Springer v. Kleinsorge, and Briggs v. Munchon, were both cases in which the auctioneer at the time of the sale executed, as...