Tatum v. Brooker

• Decision Date: 31 October 1872
• Citation: 51 Mo. 148
• Parties: JAMES G. TATUM, Defendant in Error, v. JOHN BROOKER, Plaintiff in Error.
• Court: Missouri Supreme Court

51 Mo. 148

JAMES G. TATUM, Defendant in Error,

v.JOHN BROOKER, Plaintiff in Error.

Supreme Court of Missouri.

October Term, 1872.

Error to St. Charles Circuit Court.

E. A. Lewis, for Plaintiff in Error.

King & McDearmon, for Defendant in Error.

ADAMS, Judge, delivered the opinion of the court.

The plaintiff sued for the purchase money of a gold mining claim in Montana Territory, which he alleged he sold to the defendant for the price of seven hundred dollars in gold dust, claiming the value thereof to be one thousand and fifteen dollars, for which he asked judgment.

The defendant denied the sale and all the allegations in plaintiff's petition. The case was tried before the court sitting as a jury. The testimony was conflicting as to the character of the sale. For the plaintiff it was maintained that the sale was absolute, while the defendant endeavored to show that it was conditioned on the production of the amount of the price out of the mine, and this being found hopeless the sale was mutually released and abandoned by the parties.

No deed or other instrument of writing was executed by either party, but defendant was put into possession of the mine under the contract of sale, and worked it for a length of time as his own, obtaining ore therefrom, but not in paying quantities. It was also in evidence that the defendant paid the plaintiff thirty-five dollars of the purchase money.

The plaintiff undertook to prove by witness, not being professional experts nor having held official position in Montana, that by the custom among the miners in that Territory, no deed was necessary to transfer a mining claim; that “it was not considered real estate.” The defendant objected to this testimony as not being the proper method of proving the laws of the Territory.

The defendant prayed the court for an instruction to the effect, that if there was no note or memorandum in writing of the alleged sale, signed by the defendant or some one by him thereto lawfully authorized, the plaintiff could not recover. This instruction was refused and the defendant excepted.

The point mainly relied on here for reversal, is the refusal of this instruction.

For the purpose of this case it may be conceded that a mining claim in Montana is real estate, and that the statute of frauds was in full force in that territory when this contract was made. In my judgment the evidence shows a sufficient part performance to take the case out of the statute. The defendant took possession and worked...