Bernhardt v. Walls , 1888 Mo. App. LEXIS 71 ( 1888 )

I.

Hall, J.

The counsel for the plaintiff contend, first, that the court erred in giving the instruction for the defendant, for the reason that the statute of frauds was not pleaded by the defendant, the general denial not raising the défence of the statute. The rule on this subject was early stated in this state by Judge Hyland, as follows: “ Where the defendant, in his answer, denies the contract, it is not necessary for him to insist upon the statute as a bar.” Wildbahn v. Roubidoux, 11 Mo. 166. But the plaintiff, in such case, must produce legal evidence of the existence of the agreement, which cannot be established by parol proof. Hook v. Turner, 22 Mo. 335. The authority of this case was somewhat shaken by the statements made in subsequent cases. Gardner v. Armstrong, 31 Mo. 539; Sherwood v. Saxton, 63 Mo. 79. And was expressly denied in Donaldson v. Newman, 9 Mo. App. 242. But, in Springer v. Kleinsorge, 83 Mo. 156, the cases in this state are reviewed, the apparent conflict between the various decisions of our Supreme Court explained, and shown not to be real, and the rule laid down in Hook v. Turner, supra, re-announced; see, also, Allen v. Richard, 83 Mo. 59. This rule must now be regarded as firmly established in this state.

II.

Shares of stock are included in the term, goods, wares, and merchandise, used in our statute. Rev. Stat., sec. 2514; Fine v. Hornsby, 2 Mo. App. 61.

III.

The instruction properly declared the law, unless the defendant is estopped, on the ground that the plaintiff: has performed the contract on his part, in whole or in part, from setting up the statute as a defence. The plaintiff in no wise or part performed the contract unless the purchase» of the shares of stock by him be deemed such performance. Such purchase was preparatory and ancillary to the contract in suit, and was not, therefore, such performance as to take that contract out of the statute of frauds. Lydick v. Holland, 83 Mo. 707.

With the concurrence of the other judges the judgment is affirmed