Rabsuhl v. Lack , 35 Mo. 316 ( 1864 )

Bates, Judge,

delivered the opinion of the court.

The plaintiff alleges that lie was indebted to the defendant and conveyed to the defendant a house and lot in the town of Washington, upon the agreement that the defendant should finish the house which was then not quite finished, and sell the house and lot, and of the proceeds of the sale should pay himself his debt and pay the surplus to the plaintiff; that the defendant had sold the .house and lot for a sum which paid his debt and left a surplus, and prays judgment for the surplus. The defendant denies that the consideration of the conveyance to him was as alleged by the plaintiff; but alleges that the consideration was the sum named in the deed as such, all of which had been paid.

At the trial, after evidence had been given by both parties, the court at the instance of the plaintiff gave several instructions, to the giving of which no exception was taken by the defendant. The court also gave one instruction asked by the defendant. The court refused six instructions asked by the defendant, and the defendant excepted to the refusal.

No. 1 was properly refused, because it was inapplicable to the case. The petition admitted that the deed was absolute, and sought a recovery for a portion of the alleged consideration.

No. 2 was properly refused. There was no averment or evidence that the agreement was not to be performed within one year.

No. 3 was properly refused. A demand was not necessary. (R. C. 1855, title Costs, art. 1, § 34, p. 448.)

Nos. 4 and 7 were properly refused. The matters recited in them may have been entitled to consideration, as tending to show that the consideration of the plaintiff’s deed to the defendant was not the agreement alleged by the plaintiff; but they did not raise any such presumption as to put the plaintiff upon proof of a subsequent promise by the defendant, or recognition by him of the continuance of the original agreement, and certainly did not of themselves disprove the agreement.

No. 5 was given.

No. 6 was properly refused, because it declared that the statute of limitations began to run from the time of the making of the deed from the plaintiff to the defendant, whereas no action accrued to the plaintiff until the sale of the property by the defendant, (the plaintiff having taken no steps to hasten the sale.)

Judgment having been given for the plaintiff, the defendant filed a motion for a new trial, which was supported by his affidavit of surprise at the trial, but it does not comply with the rules in such cases, and is not insisted on in this court.

Judgment affirmed.

Judges Bay and Dryden concur.