Schultz v. Hunter

REYNOLDS, P. J In the petition upon which this case was tried, it is averred “that on the — day of--, 1911, by his agreement in writing made and entered into with plaintiff, the defendant for and in consideration of the price and sum of $6000, agreed to sell plaintiff the south half of the north half of section 13, in township 16 north of range 7 east, in Dunklin county, Missouri, and plaintiff then and there at the time as a consideration expressed in said written agreement paid defendant the sum of $25 in hand, and agreed to pay the remainder of said purchase price for said lands under the terms of said agreement upon defendants (sic) making, executing and delivering to plaintiff his general warranty deed for said lands.” Charging that defendant had breached the agreement and had refused to execute to plaintiff a deed for the lands and refused to sell the lands to plaintiff “as by the terms of said agreement he had agreed to do,” and averring that plaintiff stood ready, willing and able to purchase the lands and had demanded a deed for them, and that the reasonable market value of the lands at the time of the agreement was $8000, and that by reason of defendant’s failure and refusal to convey the lands to plaintiff “as by the terms of his agreement he was obligated to do,” plaintiff has been damaged in the sum of $2000, judgment is demanded for that sum. The answer was a general denial. [526] On the trial before the court and a jury there was a verdict for plaintiff in the sum of $800'. Judgment following, defendant has duly appealed to this court. On the trial of the cause it appeared that the negotiation for the purchase of the land was had between William J. Hunter, a son of defendant, who, it is claimed, was the agent of his father for the sale of this land. That acting for his father, he had negotiated the sale to plaintiff for $6000, $300 to be paid in cash, the balance to run for ten years, to be secured by a deed of trust on the land and bearing eight per cent interest, to be compounded annually. That thereupon plaintiff paid to the son $25 and took from him a receipt which was not produced at this trial, it apparently having been lost at or after the former trial of the case. This receipt, as testified to by plaintiff, was substantially as follows: “April 15, 1911. Received of J. T. Schultz $25 as part payment or first payment on the south half of the north half of section 13, township 16, range 7. (Signed) William Hunter, By W. J. Hunter, Agent.” Plaintiff testified that as near as he could remember, this was the contents of the receipt which had been given to him on the occasion by W. J. Hunter. Other than this there is no testimony whatever in the case.of the contents of this receipt. The point is made by counsel for appellant that plaintiff has entirely failed to prove' the contract alleged in his petition. We are compelled to hold that this point is well taken. Neither this receipt nor the letters, which were not produced, passing between the father and the son, and which are relied on, not so much to prove what the contract was, as to prove the [527] agency of the son, sustain the allegations of this petition. When a party states his cause of action as founded upon a written contract, he must be held to the proof of that cause of action. Clearly this receipt did not prove the contract as that contract is testified to by plaintiff himself. It contains no specification whatever of the terms of the contract. Nor did the letters, so far as their contents were in evidence, supply this omission. Defendant also invokes the Statute of Frauds. It is true that the Statute of Frauds (section 2783, Revised Statutes 1909), was not pleaded as a defense, but that answer was a general denial. It is held by our Supreme Court in Devore v. Devore, 138 Mo. 181, l. c. 185, 39 S. W. 68, that where the answer is a general denial, when plaintiff attempts to prove his contract, and claims specific-performance and it appears that the contract was in parol, the Statute of Frauds could be invoked and would constitute a barrier to any such relief. If defendant had confessed the agreement, he was at liberty to waive the statute, in which case, if the agreement is established, its performance will be enforced against him. [Aultman v. Booth, 95 Mo. 383, l. c. 389, 8 S. W. 742.] The cases as to what is required to be in a memorandum of a transaction falling within the Statute of Frauds, are so exhaustively considered and the authorities bearing on it so fully reviewed by Judge Nortoni, speaking for our court, in Darnell v. Lafferty, 113 Mo. App. 282, 88 S. W. 784, that it is hardly necessary to repeat them. In Kelly v. Thuey, 143 Mo. 422, l. c. 290, 45 S. W. 300, it is said: “The memorandum being required to be complete in and of itself, parol evidence cannot be admitted to piece out the incomplete writing and make it a complete instrument.” [See also Ringer v. Holtzclaw, 112 Mo. 519, 20 S. W. 800, and Boyd v. Paul, [528] 125 Mo. 9, 28 S. W. 171.] Both of these eases are referred to by Judge Sherwood in Kelly v. Thuey, supra, as stating the correct rule. In Carrick v. Mincke, 60 Mo. App. 140, l. c. 142, it is said: “If the contract is one within the Statutes of Frauds, and the agreement or memorandum is incomplete or deficient as to any essential part thereof, parol evidence cannot he received to supply the omission, for this would nullify the terms of the statute.” . In Biest v. Versteeg Shoe Co., 97 Mo. App. 137, l. c. 155, 70 S. W. 1081, it is said: “The law is that all the essential terms of the agreement must he in writing so that parol evidence need not he resorted to to establish any of them. [Citing cases.] And when it is apparent a term agreed on was omitted from the memorandum, it cannot he supplied by oral testimony. ’ ’ Here, according to the testimony of plaintiff himself, this memorandum did not state all of the terms of the contract; in point of fact, it stated none of them. It was a mere receipt for $25, recited to he part payment or first payment on certain described land, without any statement whatever as to the total consideration which was to he paid for it or as to the terms of sale, whether all cash or on time, while plaintiff himself distinctly stated that the terms of the contract which he and W. J. Hunter, acting for his father, had agreed upon, were a sale for $6000, $300 cash, the balance in ten years, deferred payments to bear eight per cent interest compounded annually. Nor is this receipt helped out by what is in evidence as to the contents of the letters, as it may he (Young Men’s Christian Association of Kansas City v. Dubach, 82 Mo. 475), even if it be conceded that these letters contain such a reference to the receipt as to connect them with it, which they must do. [Boeckeler v. McGowan, 12 Mo. App. 507, and cases there cited.] Plaintiff has totally failed to make out his case. The receipt is also attacked as not containing [529] any sufficient description of the location of the land, it not appearing that it is in Dunklin county, or even in Missouri. In the view we take of the case it is unnecessary to pass on that. Over and above the fatal defect in the receipt, as before pointed out, is the fact that the evidence totally fails to show written authority in the son to act as agent for his father in making the sale. The most that appears as covering agency, is that the son had authority to quote prices. The judgment of the circuit court must be and it is reversed. Nortoni and Allen, JJ., concur.