Martin v. Printz , 186 Mo. App. 52 ( 1914 )

ALLEN, J.

— Plaintiff instituted this action for the recovery of $1000 alleged to have heen received by defendant from plaintiff for the purpose of purchasing for the latter a deed of trust-upon property in the city of St. Louis, and for which the defendant executed the following receipt:

“St. Louis, June 3, 1908. Received of Oscar Martin One Thousand and no/100 Dollars, to be placed on first deed of trust 5 per cent loan in Dixie Place, for 3 yc-ars.

“1000 Arthur. G. Printz.”

Plaintiff in his petition avers that defendant failed to so invest the money, and refused to repay the same to plaintiff.

The answer admits the' execution of the receipt, but avers that, at plaintiff’s instance and request, the money was used by defendant for plaintiff in part payment of the purchase price of a house and lot in the city of St. Louis.

The defendant is a real estate agent in the city of St'. Louis; and plaintiff, who is a cousin of the defendant, placed in the latter’s hands $1000 on or about June 3, 1908, for which defendant executed the receipt above set out. Plaintiff’s testimony in chief went to show that defendant did not apply the money as agreed,- and had ever refused to repay the same to plaintiff. And plaintiff denied that he had given defendant authority to otherwise invest the money.

On behalf of defendant it was sought to show that after the money had been placed in the defendant’s hands it was agreed, and plaintiff directed, that it be used in the purchase of a house and lot; that the same was done, and a warranty deed to the property executed to plaintiff on February 1, 1909; and that plaintiff, on the last-mentioned date, executed a note for $1200 and six semi-annual interest notes, together with a deed of trust securing such notes, in order to complete the purchase of such property. Plaintiff, on cross-examination, admitted the execution of the notes, but denied having signed the deed of trust and claimed that if the title to the property was acquired in his name it was done without his knowledge or consent.

Defendant, as a witness in his own behalf, undertook to testify to the alleged subsequent agreement regarding the disposition of the money and plaintiff’s directions in the premises, and to introduce in evidence the warranty deed and deed of trust above mentioned. The court, however, sustained objections to the admission of substantially all of the evidence thus sought to be introduced in support of the defense set up by the answer. It is unnecessary to refer to these rulings in detail. It is sufficient to say that the court excluded practically everything offered; in support of this defense. The defendant thereupon rested; and, judgment going for plaintiff, defendant has brought the matter here for review.

Respondent’s argument appears to be that the receipt constituted a written contract between the parties which could not be varied, by parol. But there is clearly no merit in this. The receipt is not a written contract, though as a memorandum it constitutes evidence of the original oral agreement between the parties, subject, however, to explanation by parol testimony. Neither was the contract itself one required to be in writing under the Statute of Frauds, for it constituted a mere agreement as to what disposition the defendant was to make of plaintiff’s money, acting as-the latter’s agent. And had the original contract been in writing, it could be varied or altered by a subsequent parol agreement between the. parties.

It is said that plaintiff did not plead, or offer to prove, compliance with the original contract. This is quite true; but defendant did plead, and sought to show, that the original agreement had been subsequently modified by the parties, in accordance with which defendant acted in investing plaintiff’s money. This, if true, is a complete defense to plaintiff’s claim. And the defendant was entitled to introduce the evidence brought forward by him to substantiate this defense, and which tended very strongly to support it. It was plainly error for the court to exclude this evidence.

But respondent urges that, as the case was tried without a jury and no findings of fact were made and no declarations of law requested or given, the judgment should be affirmed, unless it is so manifestly erroneous that it cannot be sustained upon any theory supported by the evidence. This is true, where no reversible error of law intervenes below. Here it is quite clear that reversible error was committed in the exclusion of evidence, whereby a perfectly valid defense sought to be introduced was altogether ruled out of the case and excluded from consideration.

The judgment must be reversed, and the cause remanded. It is so ordered.

Reynolds, P. J., and Nortoni, J., concur.