Smith v. Wilson

• Decision Date: 12 March 1901
• Citation: 160 Mo. 657,61 S.W. 597
• Parties: SMITH v. WILSON.
• Court: Missouri Supreme Court

61 S.W. 597

160 Mo. 657

SMITH v. WILSON.

Supreme Court of Missouri, Division No. 2.

March 12, 1901.

SPECIFIC PERFORMANCE — UNILATERAL CONTRACT — MEMORANDUM — SUFFICIENT DESCRIPTION — HUSBAND AND WIFE — AGENCY — WITNESS — COMPETENCY.

1. Under Rev. St. 1899, § 3418, requiring contracts for the sale of real estate to be in writing, and signed by the party to be charged, such a contract may be enforced by suit for specific performance, though it is unilateral, or signed only by the party to be charged.

2. A memorandum of a contract for the sale of real estate describing the land as "five acres in the southwest corner of the northeast quarter of section five, township fifty-seven, of range twenty, in L. county, inside the fence," contains a sufficiently definite description of the land to make the contract enforceable by specific performance, since it affords means whereby the identification may be made certain by parol evidence.

3. Under Rev. St. 1889, § 8922, providing that "no married man shall be disqualified as a witness in any such civil suit or proceeding prosecuted in the name of his wife, whether he be joined with her or not, as a party, when such suit or proceeding is based on, grown out of, or is connected with any matter of business or business transaction where the transaction or business was had with, or conducted by, such married man as the agent of his wife," a married man who has negotiated a contract for the purchase of land on behalf of his wife is a competent witness to prove his own agency for his wife.

Appeal from circuit court, Linn county; W. W. Rucker, Judge.

Suit for specific performance of a land contract by Anna Smith against D. C. Wilson. From a decree for the plaintiff, defendant appeals. Affirmed.

O. F. Libby and A. W. Mullins, for appellant. C. C. Bigger, for respondent.

BURGESS, J.

On the 30th day of December, 1897, plaintiff, through an agent, bought from defendant a tract of land containing five acres, of which he was the owner, at the price of $500, and as part of the purchase money paid him $20, at the same time defendant executing to her an instrument of writing in words and figures as follows: "Laclede, Mo., Dec. 30th, 1897, $20.00. Received of Mrs. Anna Smith twenty dollars in part payment of the purchase money for 5 acres of land in the S. W. corner of the N. E. ¼, Sec. 5-57-20, Linn Co., Mo., which I have today sold to her for $500; deed to be delivered when balance of purchase money is paid, I to furnish abstract showing perfect title. Said 5 acres is inside the fence. [Signed] D. C. Wilson." Defendant refused to execute to plaintiff a deed as provided for in the foregoing instrument of writing, whereupon she tendered to him, on the 4th day of January, 1898, the balance of the purchase money, and demanded a deed to the land, and upon his refusal to comply with her request she instituted this suit for the specific performance of the contract, alleging defendant's failure and refusal to comply with the terms thereof, and a readiness and willingness upon her part to do so. Defendant answered the petition, admitting that he was at the date of the contract the owner of all of section 5, township 57, range 20, in Linn county, which lies north of the right of way of the Hannibal & St. Joseph Railroad Company, but denied every other allegation and averment in the petition. The answer then proceeds as follows: "Defendant, further answering, says that heretofore, to wit, in the month of December, 1897, one May Jones, a real-estate dealer in the city of Laclede, Missouri, came to defendant, and desired to know whether he would sell five-acre tract of land in the southwestern portion of above-mentioned tract of land; that, after much talk and consideration, defendant told Jones that he would sell off of said tract of land as many as three five-acre tracts, commencing at the hedge fence on the south, at the west line of said quarter section aforesaid; each of said five-acre tracts to be measured off, commencing at the southwest corner of the hedge fence for the place of beginning, the first tract running thence east along the line of the south hedge fence forty (40) rods, thence north twenty (20) rods, thence west forty (40) rods to the west line (or hedge fence) of said above tract of land, thence south down the line of the west hedge fence twenty (20) rods, to the place of beginning; the other two tracts to be in the same shape, and of the same length and width, but lying to the north of the tract first described, — all being in the northeast quarter of section No. five (5), in township No. fifty-seven (57) north, of range No. twenty (20) west, Linn county, Missouri. Defendant, further answering, said that he informed the said Jones aforesaid that he would sell five acres in the southwest corner, measured off and described as aforesaid, for the sum of five hundred dollars, provided always, and upon the express condition and with the understanding that, if defendant could not procure a release of the trust deed on said tract of land from the holder of the same, then the land was not for sale. Defendant, further answering, says that afterwards, to wit, on or about the 30th day of December, 1897, the said May Jones, aforesaid, came to his house, representing himself to be acting for and on behalf of the plaintiff herein, Anna Smith, and told defendant that he (Jones) was in a great hurry, and wanted to close a sale of the five-acre tract of land in the southwest corner of defendant's farm in form and shape as they had heretofore agreed upon, to wit, a strip of land twenty (20) rods wide north and south, and forty (40) rods long east and west, inside of the hedge fence, and not otherwise; that he had twenty dollars to pay down, the balance to be paid in a short time, or as soon as deeds could be made, provided that defendant could obtain a release of the mortgage or trust deed, and furnish to plaintiff an abstract, and, should defendant fail to obtain a release of the mortgage lien on said land, then the trade and sale shall be canceled without prejudice to either party; that, acting in good faith, believing the land to be sold was the five acres above described, and in the manner and of the dimensions above as herein set forth, defendant took and received of said Jones, acting for and on behalf of plaintiff, the sum of twenty dollars, to be applied as part payment on the purchase of said five acres of land; that at the same time defendant received the twenty dollars from Jones he was requested by the said Jones to sign a receipt for said money, so that, as he (Jones) said to defendant, he could show to plaintiff what he had done with the money. Defendant further says that he did not read the paper so presented to him by Jones, claiming the same to be a receipt only for the $20 so paid out, but that Jones read the same in a hurried manner, and assured defendant that it was simply a receipt for $20, and nothing more; that they would have the land measured, and deeds made describing the land as heretofore described; that defendant never offered to sell the land, and no talk was had between plaintiff or her agent, Jones, about selling a tract of land, as described in plaintiff's petition. Defendant further says that he did not himself read the receipt he signed for the $20, but relied upon the representation so made by Jones, the plaintiff's agent in said transaction, that the land was not described therein; that such writing...