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to the soundness of the decision in that case, 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.
Defendant, a corporation, was engaged at The evidence heard on the motion is prop- Kansas City in the business of selling lands erly before us and is sufficient for all present in Arkansas upon a plan which required the purposes. It shows a state of facts which purchaser of a tract to make a down payment entitles the wife to a reasonable allowance of $3 per acre, and to enter into a written of suit money, and we hold that it was not contract with defendant which provided for a proper exercise of judicial discretion to re- the payment of the remainder of the purchase fuse such allowance.
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 non
forfeiture clause, and provided certain inCHAMBERLAIN V. FT. SMITH LUMBER surance benefits for the purchaser. Plaintiff, CO. (No. 11624.)
a workingman, called at defendant's office (Kansas City Court of Appeals. Missouri.
in March, 1911, and entered into an oral July 2, 1915. Rehearing Denied
agreement for the purchase of a tract of 80 Oct. 4, 1915.)
acres at $15 per acre. The terms of sale pro1. FRAUDS, STATUTE OF 143 - CONTRACTS posed by defendant required plaintiff to make RELATING TO LAND.
a down payment of $240, and to enter into a Under the statute of frauds (Rev. St. 1909, § 2783), an oral contract for the sale of land is regular form of contract which would pronot absolutely void, and if the vendor is able vide for monthly payments of $15 each. and willing to fulfill his agreement, the vendee Plaintiff only had about $100, and defendant cannot, on the ground of invalidity of the con- accepted it with the understanding, as plaintract, recover money paid on the contract.
tiff states: [Ed. Note. For other cases, see Frauds, Statute of, Cent. Dig. $$ 344-350; Dec. Dig. Om
"That I could deposit this money with him 143.)
[defendant's manager], and as soon as I had 2. VENDOR AND PURCHASER 334_RESCIS- this land, and then, after I got this contract, I
paid in $240, he would give me a contract for SION-RECOVERY OF PAYMENTS. Where an agreement for the sale of land is, the contract would contain a clause that you
was to pay, I believe, $15 a month. Q. That contained no provision as to retention of pay- would have to pay $15 per month ? A. Yes, ments in case of default, and the vendor, who sir. * * * Q. What was said with reference rescinded, sold the land at the original price, to how this money (the down payment) should the purchaser, who defaulted, is entitled to re- be paid by you? Å. Nothing said at all. I was cover his payments.
just to pay it until I paid it. There was no [Ed. Note. For other cases, see Vendor and stated time.” Purchaser, Cent. Dig. $$ 959–980; Dec. Dig. On 334.]
The testimony of the manager relating to Appeal from Circuit Court, Jackson Coun- from that of plaintiff, except in one particu
the agreement was not materially different ty; W. 0. Thomas, Judge.
lar. He said: "Not to be officially published."
“When Mr. Chamberlain came in, we went Action by William Chamberlain against through our literature and discussed the land. the Ft. Smith Lumber Company, begun in Then we went into the financial side of it, and justice court, and appealed to circuit court. he explained that he could not pay. He was not From a judgment for plaintiff, defendantularly each month, and I stated definitely that,
certain whether he could pay the payments regappeals. Affirmed.
provided he paid the $240, or $3 an acre, withC. L. Orr, of Kansas City, for appellant. in one year from the date of our agreement, it
would be all right.
* * * Directly he paid H. L. Hassler, of Kansas City, for respond- the $240 he was to receive a printed contract ent.
which contained special benefits under our prop
osition.” 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, explain-| lier v. Coates, 17 Barb. (N. Y.) 472; Coughlin ed that his failure to pay more was due to v. Knowles, 7 Metc. (Mass.) 57, 39 Am. Dec. lack of employment, and defendant answered 759. And where the vendor has not rescindthat:
ed the contract on account of the default of "It will be necessary for your payments to be the vendee, the latter cannot maintain an made up to date from the time the sale was en- action for money had and received to recover tered into and on the terms stated in your back payments on the purchase price; the agreement with us. If you are unable to do this, would it not be well to take only forty, in- vendor being willing to carry out the oral stead of eighty, acres, as that seems to be a lit- agreement. Webb v. Steiner, 113 Mo. App. tle too much for you from a financial point of 482, 87 S. W. 618; Norris v. Letchworth, view."
140 Mo. App. 19, 124 S. W. 559; Id., 167 On October 1, 1912, defendant wrote plain- Mo. App. 553, 152 S. W. 421; Mining Co. v. tiff, who had returned to Kansas City:
Price, 176 S. W. 474. Where the vendee has "We have had no payment from you on the breached the contract by failing to make above land since last June. It is quite impossible for us to hold land for which there is a payments as stipulated therein, he cannot great demand, and to receive no revenue for do- have a right of action to recover back the ing so. We are not desirous that you should money he has paid as long as the contract forfeit this tract, but at the same time, we can- is in force, and it will be considered as being not reserve it for you unless you bring your payments up to date. We shall hope to hear | in force unless rescinded by the vendor. from you within ten days from date, failing in As we said in the case last cited: which we will understand it is not your desire
"Such cause arises only in instances where to proceed any further."
the contract of sale is properly rescinded.” Plaintiff did not answer this letter, and  When the contract is rescinded by the defendant sold the tract to another purchaser. vendor on the ground of nonperformance by Plaintiff wrote defendant under date of the other party, and it contains no provision February 10, 1913:
for the retention by the vendor of payments “I understand that you placed the land back made by the vendee in part performance, on the market that I started to make payments an action for money had and received will on. I am sorry that I failed to keep in a position to hold it, but was not, but I have paid lie in favor of the latter, and he may rein over $200.00 on this, and I think I have cover back the money he has paid, “less, of something coming. Will be here for a few days course, the damages the vendor has sustained and would be much pleased to hear from you in regard to the matter."
by his breach." Sanders v. Brock, 230 Pa.
loc. cit. 609, 79 Atl. 772, 35 L. R. A. (N. S.) Defendant replied March 1, 1913:
532; Mining Co. v. Price, supra; Norris v. “We have your letter of Feb. 10th with refer- Letchworth, 167 Mo. App. 553, 152 S. W. 421. ence to the 80 acres you originally bought from us in section 17-4-21, which you have forfeit- Taking defendant in the position it has ased. We may as well tell you at once that no sumed, that the oral agreement was a concontract with us comes into force until the de- tract of sale, and not a mere option to purposit of $3.00 per acre is in our hands. We have received from you only $205.00, but to have chase, we think defendant is in no position the benefit of our contract containing the insur- to claim that it did not elect to rescind, ance and nonforfeiture clauses, we should have but is standing on the contract. Its letters
$ time and have been very lenient. Legally, of show unequivocally that it declared the concourse, you forfeited any right the day after the tract forfeited, i. e., rescinded, on account of date on which payment was due. We are not plaintiff's breach, and claimed the right to desirous, however, of being hard on you, and retain the money paid by plaintiff on the for that reason, if, at any future date, you de
The absire to purchase another tract from us, we will ground that it had been forfeited. give you the benefit of the amount we have re- sence of any agreement giving it the right to ceived from you. We may mention that we are claim such payments as a forfeiture or as not prepared to go farther than this."
liquidated damages left it in the position of This closed the correspondence, and this having elected to stand on its right to recover suit in the nature of an action for money damages for plaintiff's breach. It is conhad and received followed.
ceded that defendant suffered no actual  We agree with counsel for defendant damages, since it resold the land at the same that an oral contract for the sale of land is price plaintiff agreed to pay, and by rescindnot absolutely void under the statute of ing the contract, defendant undertook in law frauds (section 2783, R. S. 1909), which mere- to place the plaintiff in statu quo by returnly forbids the bringing of an action to en- ing the purchase money received from him. force such contract, and that a vendee who ad- Sanders v. Block, supra. vances 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.
. to keep the money. The court did not err 117 S. W. 665; Richards v. Allen, 17 Me. in directing a verdict for plaintiff.
spectively, but that by mistake plaintiff omitLUMPKIN v. STRANGE et al. (No. 11752.) | ted to include in his deed a part of the (Kansas City Court of Appeals. Missouri. ground he was to convey, and likewise deNov. 1, 1915.)
fendant omitted it from the deed of trust. 1. TRIAL Ow251-INSTRUCTIONS-CONFORMITY The testimony of defendant in his own beTO PLEADINGS.
half tended to show that when he discovered In an action on a note, where the amended the mistake he mentioned it to plaintiff, and answer admitted there was a partial consideration, as it only pleaded a partial failure of con- that it was thereupon verbally agreed besideration, the giving of an instruction submit-tween them that he (plaintiff) need not conting the hypothesis that there was no considera- vey the property omitted, and need not protion for the note was error. [Ed. Note. For other cases, see Trial, Cent. would deliver up the note, and defendant
cure an abstract of title, and that plaintiff Dig. $$ 587–595; Dec. Dig. 251.] 2. TRIAL 1991–INSTRUCTION-SUBMISSION could keep, without price, the property plainOF QUESTION OF LAW TO JURY.
tiff had deeded him. In an action on a note, where the defense In the course of this examination the ant for plaintiff's release of his right to collect court asked how many lots were conveyed by the note was a special and specific agreement on plaintiff's deed to the defendant, and coundefendant's part to release plaintiff from certain sel answered that there were 65. This was obligations in regard to land sold defendant by not disputed, and defendant admitted that he plaintiff, the giving of plaintiff's third instruction, which, in referring to the question whether had sold some of them. When asked if he plaintiff agreed to release defendant from the had not sold as many as 51 of them, he anpayment of the note, submitted whether the swered: “If I did, I don't recollect it; I don't agreement was for a valuable consideration, was recollect.” He was asked if he had not sold erroneous, as leaving the jury to determine what facts constituted valuable consideration, a 60 cords of wood off of them at $3 per cord, question of law for the court.
and also 100 ties. He answered that he had [Ed. Note.--For other cases, see Trial, Cent. not; but, when asked if he had not sold $300 Dig. $8 467-470; Dec. Dig. 199.]
worth of timber, he answered, “No, I didn't 3. BILLS AND NOTES 537_RELEASE-CON- get the third or the fourth"-saying further SIDERATION-QUESTION OF LAW.
What is valuable consideration for the on, “I worked the timber off a part of them, release by the payee of a note of his rights and part I didn't.” We thus have presented thereunder is a question of law.
the remarkable situation that defendant, [Ed. Note. For other cases, see Bills and without paying one cent, got and kept, withNotes, Cent. Dig. $$ 1862–1893; Dec. Dig. Om out tender of reconveyance, 65 of plaintiff's 537.]
lots, a large number of which he has sold outAppeal from Circuit Court, Miller County; right, and has disposed of the timber growJack G. Slate, Judge.
ing on others. "Not to be officially published.”
 An instruction was given submitting Action by William M. Lumpkin against the hypothesis that there was no consideraWilliam H. Strange and others. Judgment tion for the note. This was error. The for defendants, and plaintiff appeals. Re- amended answer admitted there was a parversed, and cause remanded.
tial consideration, in that it only pleaded a Robert F. White, of Eldon, for appellant. partial failure. Barney Reed, of Ulman, and Sid C. Roach, [2, 3] Error was committed in plaintiff's of Linn Creek, for respondents.
third instruction. In referring to the ques
tion whether plaintiff agreed to release 'deELLISON, P.J. This action is based on a fendant from the payment of the note, it subpromissory note for $130. The judgment in mitted whether this agreement was "for a the trial court was for the defendant. De- valuable consideration." The defense was fendant's amended answer admitted the exe- that the consideration rendered by defendant cution of the note. It was conceded that it for plaintiff's release was a special and spewas given as the purchase price of certain cific agreement on his part to release plaintiff lots in Aurora Springs, Miller county, Mo. from certain obligations. This should have It was alleged in the amended answer that been submitted to the jury to find as a fact; there was a partial failure of consideration. the court stating that, if found to be a fact, It was also alleged that the note had been it would be a valuable consideration, As fully discharged by a verbal settlement be- written, the instruction leaves for the jury to tween the parties.
determine what facts constitute a valuable The evidence in defendant's behalf was consideration. That was a question of law that he bought a large number of lots from for the court. 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-l is to come to another trial, that question should be examined. It is further suggested JOHNSON, J. This is an action against that, if it does come to such other trial, the the administrators of the estate of John W. defendant, if he is to succeed, should explain, Meals, deceased, upon a demand for personal in terms plainer than now appears, how he services rendered their intestate in his lifeproposes to get plaintiff's property, dispose time. A directed verdict for defendants was of most of it, and yet pay nothing for it. returned in the circuit court at the close of
The judgment is reversed, and the cause plaintiff's evidence, and plaintiff appealed. remanded. All concur.
The only issue raised by the demurrer to the evidence and discussed in the brief and argument of counsel for plaintiff is the suffi
ciency of the evidence to support the pleaded FLEMING v. MEALS et al. (No. 11284.)
cause of action. (Kansas City Court of Appeals._ Missouri. .
 Counsel for defendants contend that May 3, 1915. On Motion for Rehearing, Oct. 4, 1915.)
this question, which relates entirely to a 1. APPEAL AND ERROR O 671–REVIEW-AB- matter of exception, is not before us, since STRACT OF RECORD-MOTION FOR NEW TRIAL. the abstract of the record filed by plaintiff
Where the abstract of the bill of exceptions fails to show the filing and overruling of a contained the motion for a new trial and showed motion for a new trial. 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 Š. W. xv), providing that rec-after attention was called to it in the brief ord entries perfecting an appeal need not be per- of defendants, which was served on plaintiff fected.
The cause was argued [Ed. Note. For other cases, see Appeal and February 20, 1915. Error, Cent. Dig. $S 2867–2872; Dec. Dig. Om and submitted March 2d, and leave was 671.]
granted plaintiff to file a reply brief within 2. APPEAL AND ERROR Om 300 - MOTION FOR ten days, but no permission was given him NEW TRIAL.
to file a supplemental abstract. On March Matters of exception cannot be reviewed in the appellate court, unless reserved in a mo- 10th he filed a "supplemental abstract and retion for a new trial filed in proper time. ply brief,” in which he set forth record eu
[Ed. Note.--For other cases, see Appeal and tries showing the filing and overruling of the Error, Cent. Dig. $$ 1740–1742; Dec. Dig. Om motion for a new trial.
motion for a new trial. No excuse or ex300.]
planation was offered for his failure to show 3. APPEAL AND ERROR Cw590—ABSTRACT-RE- these record facts in his original abstract. QUEST FOR LEAVE TO AMEND-TIME. The filing of a supplemental abstract, if
In Dalton v. Register, 248 Mo. 150, 154 S. treated as a request for leave to amend the W. 67, decided after the promulgation by the original, would be denied, where it was not fil-Supreme Court of rule 32 (169 S. W. xi), ed until after appellees had attacked the origi- which is the same as our rule 26 (169 S. W. nal abstract, and no good reason was given for the appellant's failure to present a sufficient xv), the opinion has this to say of the failabstract in the first instance.
ure of the abstract of the record proper to [Ed. Note.-For other cases, see Appeal and show the filing of a motion for a new trial: Error, Cent. Dig. $$ 2611–2615; Dec. Dig. Om
"It is true that in the abstract of a purported 590.] On Motion for Rehearing.
bill of exceptions it appears that such a motion
was filed, but in a line of cases we have held 4. APPEAL AND ERROR Om590 — ABSTRACT — this insufficient. These cases are of such long LEAVE TO AMEND.
standing and so numerous that the lawyers of Leave to amend an abstract of the record the state must abide by them; and so consistcannot be inferred from the mere granting of ent is the ruling that we shall not further repermission to file a supplemental abstract, sub- state the rule, other than to state that under ject to further decision of the question whether these we have held that the abstract of the recan amendment should be allowed.
ord proper, as distinguished from the abstract [Ed. Note.—For other cases, see Appeal and of the bill of exceptions, must show the filing Error, Cent. Dig. $S 2611–2615; Dec. Dig. Om and overruling of a motion for new trial. 590.]
if it does not so show, then we have only the
record proper before us for consideration. It Appeal from Circuit Court, Randolph Coun- is true that we have recently adopted a new ty; Samuel Davis, Special Judge.
rule of practice in this court, which we hope Action by Fred Fleming against T. T. may be better understood and more generally Meals and another, administrators of the es- suggested were decided, but this new rule can
followed than the one under which the cases tate of John W. Meals, deceased. Judgment not avail this appellant, for two reasons: (1) for defendants, and plaintiff appeals. Af- Because his abstract was filed before the rule firmed.
was adopted by the court; and (2) because the
abstract as filed does not comply either with the Whitecotton & Wight and M. J. Lilly, all of old or new rule.” Moberly, for appellant. Willard P. Cave, of
And in State v. Scobee, 255 Mo. 273, 164 Moberly, W. M. Williams, of Boonville, and S. W. 198, it is held: A. C. Gladney and E. F. Gutekunst, both of
“That, since that which has been called the Moberly, for respondents.
record proper to distinguish it from that part 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
lowed. it was overruled, there is nothing before us except the record proper. State v. George, 221
We are deciding the case on the ground Mo. 519 [120 S. W. 35]; Hill v. Butler Co., that matters of exception are not properly 195 Mo. 511 [94 S. W. 518].”
before us, but it is proper to add that we To the same effect are the cases of Smith have examined the case on the merits, and v. Russell, 171 Mo. App. 324, 157 S. W. 813, find no prejudicial error in the record. In and State ex rel. v. Sly, 180 Mo. App. 379, our opinion, the learned trial judge took a 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 Matters of exception cannot be review-dence. ed in the appellate court, unless they were The judgment is affirmed. All concur. preserved in a motion for a new trial filed in proper time, and it is just as necessary now as it was before the adoption of rule 26
BIGGERSTAFF V. RILEY. (No. 11710.) that the filing and overruling of the motion
(Kansas City Court of Appeals. Missouri. appear in the abstract of that part of the record called the record proper to distinguish
Nov. 1, 1915.) it from the bill of exceptions.
1. WITNESSES Om 138 PARTY TO ACTION
AGAINST DECEDENT'S ESTATE – SISTER OF  If we should treat the filing of the
CLAIMANT. 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 is
sue and on trial is dead, the other party to such until after defendants had attacked the orig-contract or cause of action shall not be admitted 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 suffi- any party to the action claiming under him, and cient abstract in the first instance. Thorp that where an executor or administrator is a parv. Railroad, 157 Mo. App. loc. cit. 502, 138 fy in his own favor, unless the contract in issue
ty the other party shall not be admitted to testiS. W. 100; Langstaff v. City, 246 Mo. 223, was originally made with a person who is liy151 S. W. 456; Harding v. Bedoll, 202 Mo. ing and competent to testify, where a young 625, 100 S. W. 638; Nickey v. Leader, 235 negro rendered services for his aged and diseas
ed grandfather for a number of years, nursing Mo. 30, 138 S. W. 18.
the old man and working to support the family, There is nothing before us but the record the testimony of his sister, who likewise had proper, and, since the only error claimed by lived with her grandfather, that the old man plaintiff relates to matters of exception, it services, was admissible; since plaintiff's ac
had repeatedly promised to pay plaintiff for his follows that the judgment must be affirmed. tion was not founded on a joint contract made It is so ordered. All concur.
by the grandfather with plaintiff and his sister,
or that she was a proper witness. On Motion for Rehearing.
[Ed. Note.-For other cases, see Witnesses,
Cent. Dig. $$ 574, 575; Dec. Dig. Cw138.] JOHNSON, J. Appellant insists in his mo- 2. EXECUTORS AND ADMINISTRATORS C 227– tion for a rehearing that at the argument ALLOWANCE OF CLAIM-FORM OF PRESENTAof the cause in this court leave was granted
TION. him to file a supplemental abstract correct- embodying plaintiff's contractual claim against
Where the demand filed in the probate court ing the error in the original abstract to a decedent's estate was not attacked by motion which respondents had called attention in or otherwise prior to trial, the point being first their brief. We did not hear argument on raised by an objection to the introduction of the questions of the sufficiency of the ab- in working decedent's farm might have been suf
evidence that the first item for services rendered stract or of appellant's right to remedy any ficient, but that, when the second was added, material defect therein at that time, but took containing a charge for caring for and waiting those questions with the case and allowed on decedent, together with a charge for board the proffered supplemental abstract 'to be indefinite as to be an insufficient statement on
and provisions furnished, the whole became so filed, subject to the solution of the questions which to base a finding, such demand was suffiwe thus reserved for future decision. We cient, since no formal pleadings are required are convinced of the soundness of the view in the presentation of demands for allowance in
the probate court, and, if the demand presented we expressed in the foregoing opinion that be sufficient to advise the opposite party of the the omission of the abstract of the record nature of the claim and to bar another action on proper to show the filing and overruling of the same cause, all other defects will be cured the motion for a new trial precluded con- by the defendant if he suffers the case to go to
trial on the merits without attacking the desideration of matters of exception on appeal. mand. After respondents made the point of a de- [Ed. Note. For other cases, see Executors and fective abstract, permission to correct the Administrators, Cent. Dig. SS 811-818, 342; defect by amendment should not be granted Dec. Dig. Ow227.] the appellant except for good cause.
3. EXECUTORS AND ADMINISTRATORS Omw221
DISPUTED CLAIM-DECEDENT'S PROMISE TO  And leave to amend cannot be infer
PAY-SUFFICIENCY OF EVIDENCE. red from the mere granting of permission to In an action against the estate of an aged file a supplemental abstract received subject and diseased negro to recover for his grand