Sursa v. Cash
| Decision Date | 05 May 1913 |
| Citation | 156 S.W. 779,171 Mo.App. 396 |
| Parties | WILLIS SURSA, Respondent, v. C. N. CASH, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Ripley County Circuit Court.--Hon. J. C. Sheppard Judge.
REVERSED AND REMANDED (with directions).
STATEMENT.--The controversy in this appeal grew out of an unsuccessful attempt by plaintiff and defendant to exchange property. The defendant in the circuit court is appellant here.
The amended petition alleged that respondent had entered into an oral contract with appellant to exchange his farm for a house and lot in the town of Naylor together with a stock of goods in said house; that the agreed price of the house and lot was eight hundred dollars; the stock of goods was to be invoiced at the first cost to appellant; that in consideration thereof respondent was to convey to appellant his farm in Ripley county at the price of three thousand dollars less an incumbrance of four hundred dollars, and sell his personal property on the farm and after paying the proceeds of the sale to appellant either in money or notes payable to appellant to execute a mortgage on the house and lot for the balance, to be due in nine months from the taking of said invoice. That in pursuance thereof respondent and appellant executed deeds to their respective parcels of real estate and placed them in the Bank of Naylor, together with the abstract of title to respondent's farm, to be delivered when the invoice of appellant's stock of merchandise had been taken. That respondent sold his personal property at auction as agreed upon, tendered appellant the proceeds thereof, delivered the possession of the farm to appellant and offered to take the invoice of appellant's stock of merchandise and execute the mortgage for the balance, if any and requested the delivery from defendant of the warranty deed conveying the lot and store building and requested the possession of the stock of goods at the invoice price according to the terms of said agreement; that appellant refused to comply with the terms of the contract; and that he was damaged in the aggregate six hundred dollars, setting forth the several items of damage.
Appellant filed a demurrer to the amended petition setting out that the petition did not state a cause of action and that the contract pleaded was within the Statute of Frauds, which was overruled.
Thereupon the appellant filed an answer containing (1) a general denial, (2) a plea that the contract relied upon by respondent was within the Statute of Frauds, not being in writing, and (3) the defense that respondent was barred from prosecuting his action by reason of a judgment in equity against him whereby he sought to enforce specific performance of the same contract. And before the introduction of any evidence in the cause appellant made formal objection to the taking of any testimony, stating the same grounds as were alleged in the demurrer. The defendant requested and the court refused to give a peremptory instruction at the close of the plaintiff's evidence and again at the close of all the evidence in the case. The jury returned a verdict for the plaintiff for the sum of two hundred dollars.
There is no dispute between the parties that there was an oral agreement concerning an exchange of the plaintiff's farm for the defendant's store building and lot and a stock of goods which was worth approximately three thousand dollars. There is a direct conflict in the evidence as to whether plaintiff delivered possession of the farm to defendant. Plaintiff's testimony is that they made the trade; that he was to sell his personal property at auction and that he was to deliver the proceeds to defendant in cash, or sale notes made payable to defendant; that they were then to take an invoice of defendant's stock of goods, and if there was a balance due the defendant, plaintiff was to give defendant a note secured by a mortgage on the store building. Plaintiff says he delivered possession of the farm to defendant the day the trade was made, and that defendant thereupon orally rented the farm to one Smith, and Smith testified that defendant told him the trade was made and that he was able to rent him the farm. Plaintiff testified that he surrendered possession to the defendant, and that it was agreed that he was to let Smith have the place immediately after the sale of the personal property at auction. Smith admitted that he never paid any rent to either defendant or plaintiff.
Davis, the bank cashier, testified that defendant made a signed application to him for a loan on the Sursa farm and signed a sworn affidavit that he owned it.
Defendant testified that the trade was not consummated; that he did go and look at plaintiff's farm and agreed to go ahead and make the deeds the next day; that he told plaintiff he would make the trade if everything was all right, and that they did make the deeds and put them in escrow in the bank to be held until the deal was closed; that subsequently, after the deeds had been made, and, with plaintiff's abstract, deposited in escrow, but before plaintiff had his auction sale and before the day set for beginning the invoice of defendant's stock of goods, he (the defendant) discovered through the bank's attorney (who later became his attorney) that there were some flaws in the title to plaintiff's farm, and that he then went several miles into the country and notified the plaintiff that he would not trade and for plaintiff to call off his sale of the personal property, but that plaintiff said he was going ahead anyhow; that plaintiff never delivered any cash or notes to him, and that he never delivered possession of the lot and store building and stock of goods to plaintiff.
Plaintiff's version is that defendant came to him and said his (defendant's) deed was not good, and that defendant never said anything about the plaintiff's abstract not showing good title, and that defendant did not tell him to call off the auction sale; that he had such sale and deposited the proceeds in the bank--three hundred dollars in cash and about ninety dollars in sale notes made payable to the defendant--and that he then offered to take the invoice of defendant's stock of goods, but that defendant's attorney who was in the store at the time refused to go ahead, saying they were not going to trade--that his (plaintiff's) deed was "no account;" that he replied that if it was not good he would try and make it good, but that the attorney said they were not going to trade anyhow. Plaintiff testified that after his auction sale Smith came on the place. The evidence shows that plaintiff subsequently sold the farm to a man named Roberts.
A notary named Sands prepared the deeds for plaintiff and defendant and took their acknowledgments, and he testified for plaintiff that he heard the parties discussing the contract at the time, and, continuing-- Consequently the contract was not reduced to writing. Sands further testified that plaintiff and defendant each took his deed and went down and deposited them with the cashier of the bank "and told him to hold them until the contract was finished or until the invoice was taken, so they would know what to do with them." He also testified that he was present at the time they were deposited and that some conversation was had by plaintiff and defendant concerning plaintiff's title and abstract and that plaintiff left the abstract there at the bank with the understanding that defendant could have an attorney examine it and that if the title was not good he would make it good.
Defendant introduced in evidence a petition and judgment in a cause wherein plaintiff Sursa sought to obtain specific performance of defendant's contract which action had theretofore been pending in the same court.
Reversed and remanded.
Thos F. Lane and Chas. B. Butler for appellant.
(1) Respondent having declared upon an oral contract for the exchange of land for land and merchandise of the value of thirty dollars or more, the contract must be shown to be fully executed or it is within the Statute of Frauds. R. S 1909, sec. 2783; R. S. 1909, sec. 2784; Beckmann v. Mephan 97 Mo.App. 161; 147 Mo.App. 85; 141 Mo.App. 421; Lydick v. Holland, 83 Mo. 703. (2) Vendor cannot enforce specific performance nor recover damage for the breach of an oral contract for the sale of land although he has delivered possession to vendee and received part of the purchase price. Luckett v. Williams, 37 Mo. 397; Emmel v. Hayes, 102 Mo. 186. (3) Where a court of equity acquires jurisdiction it will proceed to complete justice between the parties even to the awarding of damages. Plaintiff cannot recover damages in another action after his bill in equity is dismissed. Lydick v. Holland, 83 Mo. 703; Devore v. Devore, 138 Mo. 181. (4) Where specific performance of an oral contract will not be enforced because within the Statute of Frauds damages will not be allowed for its breach. Lydick v. Holland, 83 Mo. 703; Devore v. Devore, 138 Mo. 181; 20 Cyc. 2. (5) The Statute of Frauds is available as a defense without being specially pleaded in any case where the pleading denies the contract set up. The answer in this case does deny the contract set up. Devore v. Devore, 138 Mo. 181; Hackett v. Watts, 138 Mo. 502; Boyd v. Paul, 125 Mo. 9. (6) The Statute of Frauds may be raised as was done in this case by calling the attention of the court directly thereto by objection to the...
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