Way v. Miller

SMITH, P. J. The plaintiff being the owner of a town lot and the defendant the owner of a forty acre tract of land, they entered into a written contract for the exchange of the same. Each piece of property was incumbered. The defendant was to give the plaintiff possession of the land in March, 1898, and the plaintiff was to give defendant immediate possession of the lot. The defendant did not give possession at the time agreed to, or at all but sold and conveyed the land to another. This suit is to recover $350 damages, being the alleged difference between the value of the lot and that of the forty acre tract of land. At the trial the defendant objected to the introduction of any evidence by the plaintiff for the reason that the petition did not state a cause of action; which objection was by the court sustained and thereupon the plaintiff took a nonsuit with leave to set the same aside. The plaintiff filed a motion to set aside the nonsuit, which was overruled. He brings the case here by appeal. As to the action of the court in sustaining the defendant’s objection to the introduction of any evidence under the petition, it may be remarked that previous to the interposition of this objection the plaintiff had introduced in evidence the contract. [385] Vendor and vendee: tender of performance: inability to convey: damages: time. [384] The plaintiff in his petition did not plead performance of the contract on his part or that he had tendered the defend [385] ant a proper deed conveying the lot. This would have been necessary had it not been that he alleged an excuse therefor in his petition to , the effect, that the defendant, within a few days t . after the time he had agreed to deliver the plaintiff the possession of said forty acre tract of land, had sold and conveyed it to another, thereby putting it out of his power to convey him the land. This would seem to be an ample excuse for the failure on the part of the plaintiff to allege performance of the contract on his part. St. Louis v. Cruikshank, 16 Mo. App. 495; Beckman v. Ins. Co., 49 Mo. App. 607; Bayse v. Ambrose, 32 Mo. 484. That time was not of the essence of the contract is quite obvious. The petition is therefore not subject to the defendant’s objection. Trial practice: nonsuit: motion to set aside: ground of. The third ground of the plaintiff’s motion to set aside the nonsuit, which was to the effect that the trial court erred in refusing to permit plaintiff to offer any evidence in support of the allegations of plaintiff’s petition, was ample to justify the sustaining of such motion. The court had, during the progress of the trial, ruled that the allegations of the petition were insufficient to authorize the admission of any evi-. dence to sustain the same. This was, in practical effect, telling the plaintiff that any further offer of evidence by him would be rejected, since his petition stated no cause of action. The grounds of the motion were sufficient to give the court an opportunity to review its ruling in respect to the rejection of evidence on account of the insufficiency of the petition. The petition stated, as we have seen, facts sufficient to constitute a cause of action, and it follows that'the action of the court was-error. The judgment will be reversed and cause remanded. All concur.