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to the soundness of the decision in that case, I and carry out its part of the said agreement." but, conceding it to be sound, for argument, At the trial in the circuit court the jury we hold that it has no application to the case returned a verdict for plaintiff pursuant to in hand, where all possible issues pertaining a peremptory instruction given by the court, to the good faith of plaintiff are settled in and after unsuccessfully moving for a new her favor by the adjudication that she shall trial, defendant appealed. have alimony pendente lite.

The evidence heard on the motion is properly before us and is sufficient for all present purposes. It shows a state of facts which entitles the wife to a reasonable allowance of suit money, and we hold that it was not a proper exercise of judicial discretion to refuse such allowance.

Defendant, a corporation, was engaged at Kansas City in the business of selling lands in Arkansas upon a plan which required the purchaser of a tract to make a down payment of $3 per acre, and to enter into a written contract with defendant which provided for the payment of the remainder of the purchase price in monthly installments, and bound deThe judgment is reversed, and the cause fendant to execute and deliver a deed to the remanded. All concur.

land on the payment in full of the purchase price. The contract also contained a nonforfeiture clause, and provided certain in

CHAMBERLAIN v. FT. SMITH LUMBER surance benefits for the purchaser. Plaintiff,

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1. FRAUDS, STATUTE OF 143-CONTRACTS RELATING TO LAND.

Under the statute of frauds (Rev. St. 1909, § 2783), an oral contract for the sale of land is not absolutely void, and if the vendor is able and willing to fulfill his agreement, the vendee cannot, on the ground of invalidity of the contract, recover money paid on the contract.

[Ed. Note.-For other cases, see Frauds, Statute of, Cent. Dig. §§ 344-350; Dec. Dig. 143.]

2. VENDOR AND PURCHASER

SION-RECOVERY OF PAYMENTS.

334-RESCIS

Where an agreement for the sale of land contained no provision as to retention of payments in case of default, and the vendor, who rescinded, sold the land at the original price, the purchaser, who defaulted, is entitled to recover his payments.

[Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. §§ 959-980; Dec. Dig. m334.]

a workingman, called at defendant's office in March, 1911, and entered into an oral agreement for the purchase of a tract of 80 acres at $15 per acre. The terms of sale proposed by defendant required plaintiff to make a down payment of $240, and to enter into a regular form of contract which would provide for monthly payments of $15 each. Plaintiff only had about $100, and defendant accepted it with the understanding, as plaintiff states:

"That I could deposit this money with him [defendant's manager], and as soon as I had this land, and then, after I got this contract, I paid in $240, he would give me a contract for was to pay, I believe, $15 a month. Q. That is, the contract would contain a clause that you would have to pay $15 per month? A. Yes, sir. *** Q. What was said with reference to how this money [the down payment] should be paid by you? A. Nothing said at all. I was just to pay it until I paid it. There was no stated time."

The testimony of the manager relating to the agreement was not materially different

Appeal from Circuit Court, Jackson Coun- from that of plaintiff, except in one particuty; W. O. Thomas, Judge.

"Not to be officially published." Action by William Chamberlain against the Ft. Smith Lumber Company, begun in justice court, and appealed to circuit court. From a judgment for plaintiff, defendant appeals. Affirmed.

C. L. Orr, of Kansas City, for appellant. H. L. Hassler, of Kansas City, for respondent.

lar. He said:

"When Mr. Chamberlain came in, we went through our literature and discussed the land. Then we went into the financial side of it, and he explained that he could not pay. He was not certain whether he could pay the payments regularly each month, and I stated definitely that, provided he paid the $240, or $3 an acre, within one year from the date of our agreement, it would be all right. *** Directly he paid the $240 he was to receive a printed contract which contained special benefits under our proposition."

JOHNSON, J. Plaintiff brought this suit Nothing was said in the conversation on in a justice court to recover $205 he alleges the subject of forfeiture or of what dispohe deposited with defendant on an option sition would be made of the payments plainagreement to purchase 80 acres of land in tiff would make in the event he failed to pay Yell county, Ark. Defendant filed an answer $240 within a year. The manager receipted alleging that the money was paid under a for the payment of $100 as a "part deposit contract for the purchase of the land by on northeast quarter of northwest quarter plaintiff, and that plaintiff failed to make and northwest quarter of northeast quarter, further payments as agreed, and “abandoned section 17, township 4, range 21, Yell countyand refused to proceed further with the said 80 acres." Under this agreement plaintiff agreement, although defendant, at the time paid $50 April 21, 1911, $40 June 19, 1911, of plaintiff's abandonment, never refused, and $15 June 24, 1912. The latter payment but was well able and willing, to perform was preceded by correspondence in which

plaintiff, who had removed to Texas, explained that his failure to pay more was due to lack of employment, and defendant answered that:

"It will be necessary for your payments to be made up to date from the time the sale was entered into and on the terms stated in your agreement with us. If you are unable to do this, would it not be well to take only forty, instead of eighty, acres, as that seems to be a little too much for you from a financial point of

view."

On October 1, 1912, defendant wrote plaintiff, who had returned to Kansas City:

"We have had no payment from you on the above land since last June. It is quite impossible for us to hold land for which there is a great demand, and to receive no revenue for doing so. We are not desirous that you should forfeit this tract, but at the same time we cannot reserve it for you unless you bring your payments up to date. We shall hope to hear from you within ten days from date, failing in which we will understand it is not your desire to proceed any further."

Plaintiff did not answer this letter, and defendant sold the tract to another purchaser. Plaintiff wrote defendant under date of February 10, 1913:

"I understand that you placed the land back on the market that I started to make payments on. I am sorry that I failed to keep in a position to hold it, but was not, but I have paid in over $200.00 on this, and I think I have something coming. Will be here for a few days and would be much pleased to hear from you in regard to the matter."

Defendant replied March 1, 1913:

"We have your letter of Feb. 10th with reference to the 80 acres you originally bought from us in section 17-4-21, which you have forfeited. We may as well tell you at once that no contract with us comes into force until the deposit of $3.00 per acre is in our hands. We have received from you only $205.00, but to have the benefit of our contract containing the insurance and nonforfeiture clauses, we should have received $240.00. We held the land for a long time and have been very lenient. Legally, of course, you forfeited any right the day after the date on which payment was due. We are not desirous, however, of being hard on you, and for that reason, if, at any future date, you desire to purchase another tract from us, we will give you the benefit of the amount we have received from you. We may mention that we are not prepared to go farther than this."

This closed the correspondence, and this suit in the nature of an action for money had and received followed.

lier v. Coates, 17 Barb. (N. Y.) 472; Coughlin v. Knowles, 7 Metc. (Mass.) 57, 39 Am. Dec. 759. And where the vendor has not rescinded the contract on account of the default of the vendee, the latter cannot maintain an action for money had and received to recover back payments on the purchase price; the vendor being willing to carry out the oral agreement. Webb v. Steiner, 113 Mo. App. 482, 87 S. W. 618; Norris v. Letchworth, 140 Mo. App. 19, 124 S. W. 559; Id., 167 Mo. App. 553, 152 S. W. 421; Mining Co. v. Price, 176 S. W. 474. Where the vendee has breached the contract by failing to make payments as stipulated therein, he cannot have a right of action to recover back the money he has paid as long as the contract is in force, and it will be considered as being in force unless rescinded by the vendor. As we said in the case last cited:

"Such cause arises only in instances where the contract of sale is properly rescinded."

[2] When the contract is rescinded by the vendor on the ground of nonperformance by the other party, and it contains no provision for the retention by the vendor of payments made by the vendee in part performance, an action for money had and received will lie in favor of the latter, and he may recover back the money he has paid, "less, of course, the damages the vendor has sustained Sanders v. Brock, 230 Pa. by his breach." loc. cit. 609, 79 Atl. 772, 35 L. R. A. (N. S.) 532; Mining Co. v. Price, supra; Norris v. Letchworth, 167 Mo. App. 553, 152 S. W. 421. Taking defendant in the position it has assumed, that the oral agreement was a contract of sale, and not a mere option to purchase, we think defendant is in no position to claim that it did not elect to rescind, but is standing on the contract. Its letters show unequivocally that it declared the contract forfeited, i. e., rescinded, on account of plaintiff's breach, and claimed the right to retain the money paid by plaintiff on the ground that it had been forfeited. The absence of any agreement giving it the right to claim such payments as a forfeiture or as liquidated damages left it in the position of having elected to stand on its right to recover damages for plaintiff's breach. It is conceded that defendant suffered no actual damages, since it resold the land at the same price plaintiff agreed to pay, and by rescinding the contract, defendant undertook in law to place the plaintiff in statu quo by returning the purchase money received from him. Sanders v. Block, supra.

[1] We agree with counsel for defendant that an oral contract for the sale of land is not absolutely void under the statute of frauds (section 2783, R. S. 1909), which merely forbids the bringing of an action to enforce such contract, and that a vendee who advances money on such contract cannot re- In this view of the case it is not necessary cover it back if the vendor is able and wil- to discuss whether the oral agreement was a ling to fulfill the contract on his part. contract of sale or an option agreement. Galway v. Shields, 66 Mo. 313, 27 Am. Rep. In neither case would defendant be entitled 351; Lang v. Murphy, 137 Mo. App. 217, to keep the money. The court did not err 117 S. W. 665; Richards v. Allen, 17 Me. in directing a verdict for plaintiff. 296; Lane v. Shackford, 5 N. H. 130; Col- Affirmed. All concur.

spectively, but that by mistake plaintiff omitted to include in his deed a part of the ground he was to convey, and likewise defendant omitted it from the deed of trust.

LUMPKIN v. STRANGE et al. (No. 11752.) (Kansas City Court of Appeals. Missouri. Nov. 1, 1915.) 251-INSTRUCTIONS-CONFORMITY The testimony of defendant in his own be

1. TRIAL

TO PLEADINGS. In an action on a note, where the amended answer admitted there was a partial consideration, as it only pleaded a partial failure of consideration, the giving of an instruction submitting the hypothesis that there was no consideration for the note was error.

[Ed. Note.-For other cases, see Trial, Cent. Dig. $$ 587-595; Dec. Dig. 251.] 2. TRIAL 199-INSTRUCTION-SUBMISSION OF QUESTION OF LAW TO JURY.

In an action on a note, where the defense was that the consideration rendered by defendant for plaintiff's release of his right to collect the note was a special and specific agreement on defendant's part to release plaintiff from certain obligations in regard to land sold defendant by plaintiff, the giving of plaintiff's third instruction, which, in referring to the question whether plaintiff agreed to release defendant from the payment of the note, submitted whether the agreement was for a valuable consideration, was erroneous, as leaving the jury to determine what facts constituted valuable consideration, a question of law for the court.

[Ed. Note.-For other cases, see Trial, Cent. Dig. § 467-470; Dec. Dig. 199.] 3. BILLS AND NOTES 537-RELEASE-CONSIDERATION-QUESTION OF LAW.

What is valuable consideration for the release by the payee of a note of his rights thereunder is a question of law.

[Ed. Note. For other cases, see Bills and Notes, Cent. Dig. §§ 1862-1893; Dec. Dig. 537.]

half tended to show that when he discovered

the mistake he mentioned it to plaintiff, and that it was thereupon verbally agreed between them that he (plaintiff) need not convey the property omitted, and need not procure an abstract of title, and that plaintiff would deliver up the note, and defendant could keep, without price, the property plaintiff had deeded him.

In the course of this examination the court asked how many lots were conveyed by plaintiff's deed to the defendant, and counsel answered that there were 65. This was not disputed, and defendant admitted that he had sold some of them. When asked if he had not sold as many as 51 of them, he answered: "If I did, I don't recollect it; I don't recollect." He was asked if he had not sold 60 cords of wood off of them at $3 per cord, and also 100 ties. He answered that he had not; but, when asked if he had not sold $300 worth of timber, he answered, "No, I didn't get the third or the fourth"-saying further on, "I worked the timber off a part of them, and part I didn't." We thus have presented the remarkable situation that defendant, without paying one cent, got and kept, without tender of reconveyance, 65 of plaintiff's lots, a large number of which he has sold out

Appeal from Circuit Court, Miller County; right, and has disposed of the timber growJack G. Slate, Judge.

"Not to be officially published." Action by William M. Lumpkin against William H. Strange and others. Judgment for defendants, and plaintiff appeals. Reversed, and cause remanded.

Robert F. White, of Eldon, for appellant. Barney Reed, of Ulman, and Sid C. Roach, of Linn Creek, for respondents.

ELLISON, P. J. This action is based on a promissory note for $130. The judgment in the trial court was for the defendant. Defendant's amended answer admitted the execution of the note. It was conceded that it was given as the purchase price of certain lots in Aurora Springs, Miller county, Mo. It was alleged in the amended answer that there was a partial failure of consideration. It was also alleged that the note had been fully discharged by a verbal settlement between the parties.

ing on others.

[1] An instruction was given submitting the hypothesis that there was no considera. tion for the note. This was error. The amended answer admitted there was a partial consideration, in that it only pleaded a partial failure.

[2, 3] Error was committed in plaintiff's third instruction. In referring to the question whether plaintiff agreed to release 'defendant from the payment of the note, it submitted whether this agreement was "for a valuable consideration." The defense was that the consideration rendered by defendant for plaintiff's release was a special and specific agreement on his part to release plaintiff from certain obligations. This should have been submitted to the jury to find as a fact; the court stating that, if found to be a fact, it would be a valuable consideration. As written, the instruction leaves for the jury to determine what facts constitute a valuable consideration. That was a question of law for the court.

The evidence in defendant's behalf was that he bought a large number of lots from plaintiff, an old man over 80 years of age, Plaintiff has raised several points against for which the latter was to make him a the defense that we need not notice, since warranty deed, with abstract of title, and the judgment is to be reversed. Among these he, in turn, was to execute a deed of trust defenses is that of the statute of frauds. on the property to secure the payment of We do not say whether the case involves the note. The evidence further showed that that statute. It is suggested that, if the case these deeds were executed by the parties re- is to come to another trial, that question

should be examined. It is further suggested [ that, if it does come to such other trial, the defendant, if he is to succeed, should explain, in terms plainer than now appears, how he proposes to get plaintiff's property, dispose of most of it, and yet pay nothing for it. The judgment is reversed, and the cause remanded. All concur.

FLEMING v. MEALS et al. (No. 11284.) (Kansas City Court of Appeals. Missouri. May 3, 1915. On Motion for Rehear

ing, Oct. 4, 1915.)

JOHNSON, J. This is an action against the administrators of the estate of John W. Meals, deceased, upon a demand for personal services rendered their intestate in his lifetime. A directed verdict for defendants was returned in the circuit court at the close of plaintiff's evidence, and plaintiff appealed. The only issue raised by the demurrer to the evidence and discussed in the brief and argument of counsel for plaintiff is the sufficiency of the evidence to support the pleaded cause of action.

[1] Counsel for defendants contend that this question, which relates entirely to a matter of exception, is not before us, since the abstract of the record filed by plaintiff fails to show the filing and overruling of a motion for a new trial.

1. APPEAL AND ERROR 671-REVIEW-ABSTRACT OF RECORD-MOTION FOR NEW TRIAL. Where the abstract of the bill of exceptions contained the motion for a new trial and showed that it was filed and overruled, but the abstract of the record proper failed to show the filing The abstract of the bill of exceptions conand overruling of the motion, only the record tains the motion for a new trial and shows proper could be considered, so that the question that it was filed and overruled, but that part of the sufficiency of the evidence to support the of the abstract devoted to the record proper pleaded cause of action, a matter of exception, could not be considered; and such requirement fails to refer to that motion. No effort was was not changed by Kansas City Court of Ap- made by plaintiff to correct this error until peals rule 26 (169 S. W. xv), providing that rec-after attention was called to it in the brief ord entries perfecting an appeal need not be per

fected.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2867-2872; Dec. Dig. 671.]

2. APPEAL AND ERROR 300 MOTION FOR NEW TRIAL. Matters of exception cannot be reviewed in the appellate court, unless reserved in a motion for a new trial filed in proper time.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1740-1742; Dec. Dig. 300.]

3. APPEAL AND ERROR 590-ABSTRACT-REQUEST FOR LEAVE TO AMEND-TIME.

The filing of a supplemental abstract, if treated as a request for leave to amend the original, would be denied, where it was not filed until after appellees had attacked the original abstract, and no good reason was given for the appellant's failure to present a sufficient abstract in the first instance.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 2611-2615; Dec. Dig. 590.]

On Motion for Rehearing.

4. APPEAL AND ERROR 590- ABSTRACT LEAVE TO AMEND.

Leave to amend an abstract of the record cannot be inferred from the mere granting of permission to file a supplemental abstract, subject to further decision of the question whether an amendment should be allowed.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2611-2615; Dec. Dig. 590.]

Appeal from Circuit Court, Randolph County; Samuel Davis, Special Judge.

Action by Fred Fleming against T. T. Meals and another, administrators of the estate of John W. Meals, deceased. Judgment for defendants, and plaintiff appeals. Affirmed.

Whitecotton & Wight and M. J. Lilly, all of Moberly, for appellant. Willard P. Cave, of Moberly, W. M. Williams, of Boonville, and A. C. Gladney and E. F. Gutekunst, both of Moberly, for respondents.

of defendants, which was served on plaintiff February 20, 1915. The cause was argued and submitted March 2d, and leave was granted plaintiff to file a reply brief within ten days, but no permission was given him to file a supplemental abstract. On March 10th he filed a "supplemental abstract and reply brief," in which he set forth record eutries showing the filing and overruling of the motion for a new trial. No excuse or explanation was offered for his failure to show these record facts in his original abstract.

In Dalton v. Register, 248 Mo. 150, 154 S. W. 67, decided after the promulgation by the Supreme Court of rule 32 (169 S. W. xi), which is the same as our rule 26 (169 S. W. XV), the opinion has this to say of the failure of the abstract of the record proper to show the filing of a motion for a new trial:

"It is true that in the abstract of a purported bill of exceptions it appears that such a motion was filed, but in a line of cases we have held this insufficient. These cases are of such long standing and so numerous that the lawyers of the state must abide by them; and so consistent is the ruling that we shall not further restate the rule, other than to state that under these we have held that the abstract of the record proper, as distinguished from the abstract of the bill of exceptions, must show the filing and overruling of a motion for new trial. And if it does not so show, then we have only the record proper before us for consideration. is true that we have recently adopted a new rule of practice in this court, which we hope may be better understood and more generally followed than the one under which the cases suggested were decided, but this new rule cannot avail this appellant, for two reasons: (1) Because his abstract was filed before the rule was adopted by the court; and (2) because the abstract as filed does not comply either with the old or new rule."

It

And in State v. Scobee, 255 Mo. 273, 164 S. W. 198, it is held:

"That, since that which has been called the record proper to distinguish it from that part

lowed.

of the record made so by the timely and proper | to the further decision of the question of filing of a bill of exceptions, fails to show either whether or not an amendment should be althat the motion for a new trial was filed or that it was overruled, there is nothing before us except the record proper. State v. George, 221 Mo. 519 [120 S. W. 35]; Hill v. Butler Co., 195 Mo. 511 [94 S. W. 518]."

We are deciding the case on the ground that matters of exception are not properly before us, but it is proper to add that we have examined the case on the merits, and find no prejudicial error in the record. In our opinion, the learned trial judge took a

To the same effect are the cases of Smith v. Russell, 171 Mo. App. 324, 157 S. W. 813, and State ex rel. v. Sly, 180 Mo. App. 379, 167 S. W. 1197, decided by this court after proper view of the case presented by appelthe adoption of rule 26.

lant in sustaining a demurrer to the evi

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1. WITNESSES 138 PARTY ΤΟ
AGAINST DECEDENT'S ESTATE
CLAIMANT.

Missouri.

ACTION SISTER OF

[3] If we should treat the filing of the supplemental abstract as a request for leave. Under Rev. St. 1909, § 6354, providing in to amend the original, the request should be part that in actions where one of the original denied, on the ground that it did not come parties to the contract or cause of action in isuntil after defendants had attacked the orig-contract or cause of action shall not be admitted sue and on trial is dead, the other party to such inal abstract, and no good reason is given to testify either in his own favor or in favor of for the failure of plaintiff to present a sufficient abstract in the first instance. Thorp v. Railroad, 157 Mo. App. loc. cit. 502, 138 S. W. 100; Langstaff v. City, 246 Mo. 223, 151 S. W. 456; Harding v. Bedoll, 202 Mo. 625, 100 S. W. 638; Nickey v. Leader, 235 Mo. 30, 138 S. W. 18.

There is nothing before us but the record proper, and, since the only error claimed by plaintiff relates to matters of exception, it follows that the judgment must be affirmed. It is so ordered. All concur.

On Motion for Rehearing. JOHNSON, J. Appellant insists in his motion for a rehearing that at the argument of the cause in this court leave was granted him to file a supplemental abstract correcting the error in the original abstract to which respondents had called attention in their brief. We did not hear argument on the questions of the sufficiency of the abstract or of appellant's right to remedy any material defect therein at that time, but took those questions with the case and allowed the proffered supplemental abstract to be filed, subject to the solution of the questions we thus reserved for future decision. We are convinced of the soundness of the view we expressed in the foregoing opinion that the omission of the abstract of the record proper to show the filing and overruling of the motion for a new trial precluded consideration of matters of exception on appeal. After respondents made the point of a defective abstract, permission to correct the defect by amendment should not be granted the appellant except for good cause.

[4] And leave to amend cannot be inferred from the mere granting of permission to file a supplemental abstract received subject

any party to the action claiming under him, and ty the other party shall not be admitted to testithat where an executor or administrator is a parfy in his own favor, unless the contract in issue was originally made with a person who is living and competent to testify, where a young negro rendered services for his aged and diseased grandfather for a number of years, nursing the old man and working to support the family, the testimony of his sister, who likewise had lived with her grandfather, that the old man services, was admissible; since plaintiff's achad repeatedly promised to pay plaintiff for his tion was not founded on a joint contract made by the grandfather with plaintiff and his sister, or that she was a proper witness.

[Ed. Note.-For other cases, see Witnesses, Cent. Dig. §§ 574, 575; Dec. Dig. 138.] 2. EXECUTORS AND ADMINISTRATORS 227ALLOWANCE OF CLAIM-FORM OF PRESENTA

TION.

embodying plaintiff's contractual claim against Where the demand filed in the probate court a decedent's estate was not attacked by motion or otherwise prior to trial, the point being first raised by an objection to the introduction of evidence that the first item for services rendered in working decedent's farm might have been sufficient, but that, when the second was added, containing a charge for caring for and waiting on decedent, together with a charge for board and provisions furnished, the whole became so indefinite as to be an insufficient statement on which to base a finding, such demand was sufficient, since no formal pleadings are required in the presentation of demands for allowance in the probate court, and, if the demand presented be sufficient to advise the opposite party of the nature of the claim and to bar another action on the same cause, all other defects will be cured trial on the merits without attacking the deby the defendant if he suffers the case to go to mand.

[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. §§ 811-818, 842; Dec. Dig. 227.]

3. EXECUTORS AND ADMINISTRATORS 221DISPUTED CLAIM-DECEDENT'S PROMISE TO PAY-SUFFICIENCY OF EVIDENCE.

In an action against the estate of an aged and diseased negro to recover for his grand

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