author: WALKER, P. J.

text:
    C. H. RANCK, Plaintiff in Error, v. SARAH ANN WICKWIRE.
    Division Two,
    February 17, 1914.
    1. SPECIFIC PERFORMANCE: Defective Description of Land: Admission of Contract. Tlie contract for the sale of lands need not so fully and accurately describe them that they may be identified from a mere reading of tbe description; but it must afford tbe means whereby tbe identification may be made definite and certain by parol evidence. A contract describing tbe land as “280 acres of land in St. Clair Co., Mo., belonging to tbe party of tbe second part” contains a description sufficiently definite to enable tbe land to be identified by tbe introduction of parol evidence; especially, where tbe owner did not plead tbe Statute of Frauds, and admitted tbe execution of tbe contract.
    2. -: Defects in Title: Trivial Objections: Release of Other Party. Where tbe contract for tbe exchange of lands provided “both parties to furnish a clear title and abstract, with deed of said ■ properties, soon as same can be brought down to date,” trivial objections by plaintiff to defendant’s title, made when her abstract was furnished, which be insisted must foe corrected, even when informed that they could not foe corrected, thereby in effect refusing to accept her title as then submitted, afforded defendant a reciprocal reason for a refusal to perform, since time was of the essence of the contract, and its requirements for a deed as soon as the abstract could be brought down to date meant that each party would in good faith comply with them within a reasonable time, and that neither would interpose objections which, if trivial, would serve only to delay or defeat performance.
    3. -: -: Failure to Remove. Before plaintiff can have enforced a contract for the exchange of lands, it becomes his duty where the abstract of his lands shows an outstanding contingent remainder or missing patents or defective deeds, to either remove the defects or to look up the evidence in pais necessary to reasonably satisfy the defendant that the title is good and that the apparent defects do not, in fact, exist; especially, where he knew at the time the contract was made that the remainder had become vested, but did not inform defendant of that fact when he was apprised of the fact that it seemed to be contingent, and knew that no patents had been issued by the Government and he did not attempt to procure them until long after he was told the abstract failed to show them. He who seeks equity, must do equity.
    4. -: Delivery of Deed. Where the contract for the exchange of land provided that at the time of the exchange of abstracts, deeds should be delivered, a failure by plaintiff to deliver a deed to defendant, sending it only to the bank in which certain papers pertaining to the transaction were deposited, and tendering it at the trial, may be of minor importance, but indicates that he was not zealous for the performance of his part of the contract.
    5. -: Destruction of House by Fire: Prior to Compliance With Conditions. Where, before the submission to defendant of an abstract showing a clear title in him and tendering a deed, things the contract for the exchange of lands required, a valuable dwelling house on plaintiff’s lands burns by accident, while there is no depreciation in the value of defendant’s property, and plaintiff offers nothing by way of reparation, he cannot have specific performance.
    6. -: Not an Absolute Right. Specific performance of a contract to exchange lands is not a matter of absolute right, but of sound judicial discretion. Much less strength is required on the part of a defendant to resist a bill to perform than is required on the part of a plaintiff to maintain it, because if denied, the plaintiff may have a remedy at law for damages. Performance will be denied in any case where, under all the circumstances, it would be inequitable.

      Error to Jackson Circuit Court. — Hon. Walter A. Powell, Judge.
    Affirmed.

      A. F. Evans and Bruce Barnett for plaintiff in error.
    (1) The description of the land in the contract sued on is sufficient. The identification of the land is made certain by parol evidence at the trial of this cause. Keator v. Realty Co., 231 Mo. 676; Tetherow v. Anderson, 63 Mo. 96; Shewalter v. Pimer, 55 Mo. 218; Hammond v. Johnson, 93 Mo. 198; Marvin v. Elliott, 99 Mo. 616; Bacon v. Leslie, 52 Kan. 494; Bacon v. Leslie, 34 A. S. R. 134; Hurley v. Brown, 98 Mass. 545, 96 Am. Dec. 671; Mead v. Parker, 115 Mass. 413, 15 Am. Rep. 110; Waring v. Ayres, 40 N. T. 357; Preble v. Abrahams, 88 Cal. 245, 22 A. S. R. 301; Land Co. v. Dayton, 42 Minn. 73. (2) . Defects, if any, in the defendant’s title constitute no defense to this action. The defendant will not be permitted to take advantage of the weakness of her own title. The plaintiff is entitled to such a deed as. the defendant can give. Real Estate Co. v. Spelbrink, 211 Mo. 671; 26 Am. & Eng. Ency. Law, 83, par. 4; Meek v. Hurst, 223 Mo. 688; Coal & Iron Co. v. Long, 231 Mo. 605; Lanyon v. Chesney 186 Mo. 540 ; 36 Cyc. 740. (3) Where trustees have no other title to property except as trustees, any conveyance from them, for a valuable consideration, will be deemed to be in pursuance and execution of the trust. That is to say, that the courts are loath to construe an instrument as having no effect or purpose, but on the contrary are prone to put upon an instrument a construction which will give it some force and effect. Reilly v. Chouquette, 18 Mo. -229; Pease v. Iron Co., 49 Mo. 126; Owen v. Ellis, 64 Mo. 77; Campbell v. Johnson, 65 Mo. 439; Boyer v. Allen, 76 Mo. 498; Scheidt v. Crecelius, 94 Mo. 322; Underwood v. Cave, 176 Mo. 1; Collier’s Will, 49 Mo. 328; 22 Am. & Eng. Ency. Law (2 Ed.), 1112. (4) Defendant’s answer complains that no patents appear to have been issued to parts of the land, but patents, were introduced in evidence covering every portion of plaintiff’s land involved in the contract. (5) There is a dispute between the parties as to whether Mr. Ranck or his attorney refused to waive the defects in defendant’s title, but conceding for argument’s sake that plaintiff did refuse to waive these defects, this constitutes no. defense for the reason that defendant had contracted not only to exchange properties, but to furnish a clear title. The contract contains the words “and both parties to furnish a clear title.”

      Thomas A. J. Mastin and Joseph 8. Brooks for defendant in error.
    (1) A decree for specific performance is not a matter of absolute right but a matter of discretion— sound judicial discretion. Sease v. Company, 141 Mo. 488.; Paris v. Haley, 61 Mo. 453; Yeth v. Gierth, 92 Mo. 97; Pomeroy v. Fullerton, 131 Mo. 181; Davis v. Petty, 147 Mo. 374; Pomeroy, Spec. Perf., secs. 35, 36, and notes. (2) When a vendor is called upon to exhibit a perfect title, he must exhibit a title which is perfect to a moral certainty, one which does not disclose a patent defect suggesting the possibility of a lawsuit to defendant. The title must be free from reasonable doubt. This rule is not applicable only in eases of perfect title, but also in cases where the contract calls for a good title or a clear title as the contract in this case requires. Gerhart v. Peck, 42 Mo. App. 644; Hymers v. Branch, 6 Mo. App. 511; Pomeroy, Spec. Perf., secs. 198, 199, 200; Luckett v. Williamson, 31 Mo. 57. (3) Before plaintiff can successfully invoke the powers of a court of equity to enforce the specific performance of a contract to purchase land, he must have been “ready, willing and eager” to perform the contract on his part. Hollmann v. Conlon, 143 Mo. 369. (4) A greater degree of certainty is required in the terms of a contract which is. to he specifically executed than is necessary in a contract which is to be the basis of an action at law for damages. Mastin v. Halley, 61 Mo. 196. (51) The contract must be certain and definite and there must be no uncertainty about it. It must be so precise and exact in its terms that neither party could reasonably misunderstand them and these terms must be satisfactorily established by the evidence. Mastin v. Halley, 61 Mo. 196; Paris v. Haley, 61 Mo. 453; Taylor v. Williams, 45 Mo. 80. (6) And though the court may entertain a favorable opinion of the title, yet if that opinion may be questioned by competent persons, specific performance- will not be decreed. Hymers v. Branch, 6 Mo. App. 511. (7) If after exhibiting to the vendee such chain of record title as g*rantor may have, it appears that there is. a break or gap in it, the vendor and not the vendee must look up. the evidence necessary to supply the gap and to show the title good, and this evidence he must communicate to the vendee before the latter can be put in the wrong for refusing to take the title. Gerhart v. Peck, 42 Mo. App.. 642; Birge v. Bock, 44 Mo. App. 69. (8) A plaintiff who refuses to accept a title cannot insist upon specific performance of a contract to convey land when the title he will get is precisely the title which he refused. Goldthwait v. Crowther, 9 Utah, 186-. (9) A written contract for the sale of land is insufficient under the Statute of Frauds if the land cannot be identified from its terms without having recourse to parol proof. Such a contract cannot rest partly in writing and partly in parol. King v. Wood, 7 Mo. 389; Shelton v. Church, 10 Mo. 774; Beckman v. Mepham, 97 Mo. App. 161; Fox v. Courtnay, 111 Mo. 147; Weil v. Willard, 55 Mo. App. 376; Pomeroy, Spec. Perf., p. 226 and notes; Parkhurst v. Van Cortland, 1 Johns. Ch. 280; Reed’s Heirs y. Homback, 4 J. J. Marsh. 377; Whelan v. Sullivan, 102 Mass. 204; White v. Hermann, 51 111. 243 ; Johnson v. Fecht, 185 Mo. 345; Ringer v. Holtzclaw, 112 Mo. 519; Reigart v. Co., 217 Mo. 142; Mason v. Small, 130 Mo. App. 251; Hain v. Burton, 118 Mo. 577
   WALKER, P. J.

This is. a suit in equity in which the plaintiff seeks a decree for the specific performance of a contract for the exchange of plaintiff’s two hundred and eighty acres of land in St. Clair county, for certain lots in Kansas City, belonging to defendant. Upon a hearing before the circuit court of Jackson county, at Independence, at its September term, 1908, the court found the issues in favor of the defendant, and a decree was rendered accordingly. The case is here on a writ of error brought by plaintiff.

The contract in question, omitting the signatures, is as follows:

This agreement made this 5th day of Jan. 1,907, between Mrs. Sarah Ann Wickwire of Bates Co., Mo., party of the first part, and C. H. Ranck, of Cedar Rapids, la., party of- the second part. Said party of the first part, agrees to exchange lots (11)-(12)-(23)-(24) in Bismark Place, Addition Kansas City, Mo., for 280 acres of land in St. Clair C'o., Mo., belonging to the party of the second part; and party of the first part agrees to assume mortgage of $4000 in favor of A. W. Hudson, at 5y2 per cent interest, on said land in St. Clair Co., Mo.; party of the second part to assume $50 note in favor of Eugene Lindsay, and both parties to furnish, a clear title and abstract, with deed of said properties, soon as same can be brought down to date.

The pleadings, omitting captions and signatures, are in substance as. follows:

Petition. The plaintiff alleges that he has a good and indefeasible title to the land (particularly describing it) which he had agreed to transfer to defendant; that defendant has title to the lots in Kansas City ■which she had contracted to convey to plaintiff. The contract is then set ont according to its terms; and plaintiff further -alleges that he has furnished defendant with abstracts of title to the land he proposes to convey to her, showing clear and indefeasible title in him, and has offered to convey said land to defendant by a deed of warranty executed by himself and wife, and has demanded that defendant in consideration thereof convey to him her said real estate in Kansas City, and that she has refused and still fails and refuses so to do. Wherefore he asks judgment for specific performance, etc.

Answer. Defendant admits she entered into the contract with plaintiff by which she agreed to exchange certain lots, described as in the contract, to plaintiff for 280 acres of land in St. Clair County, that said land was not described in the contract, and that same did not show what land was intended to be conveyed,- following this, with admissions of the further agreements appearing in the contract, not necessary to be repeated here; that in January, 1907, plaintiff caused an abstract of title of certain lands in St. Clair county to be delivered to her, and about said date she submitted same to her attorneys, who, after examining same, reported to her, on January 26, 1907, that the title to the lands of the plaintiff was defective in the following respects: that about 200 acres of said land, particularly described in said answer, was affected by a contingent remainder therein specifically set forth; and that a certain forty acres of said land appeared from the abstract to have been held at one time by trustees and to have been transferred by them as agent, and that as to eighty acres of said land no patents or title appeared in said abstract to have emanated from the Government; that the report and conclusion of her said attorneys had been delivered or offered to be delivered to plaintiff, -stating her objections to said title, and that no effort had been made by plaintiff to correct the defects therein except that plaintiff had offered to institute a suit for the purpose-of correcting the deed made by the trustees as agent following this are specific allegations in which defendant sets up the defects in plaintiff’s title heretofore-generally pleaded.

Defendant further alleges that plaintiff and defendant, under said contract, were to furnish clear' titles and abstracts showing same, with deeds to said properties, as soon as said abstracts could be certified to date, and that no deed conveying plaintiff’s lands in said St. Clair county was furnished with said abstract and delivered to defendant or to anyone for her, as required by said contract; -that no time was stated in said contract for the perfecting of said title-to the lands, but that it was provided that a deed was to be furnished as soon as the abstract could be brought down to date and a clear title to said lands' was to be furnished at the time said abstract and deed were delivered; that defendant on or about the 7th day of February, 1907, at the request of plaintiff, delivered his abstract of said St. Clair county land to-one Abernathy in Kansas City, and that same was by Trim subsequently returned to the plaintiff; that at said time negotiations were still pending between plaintiff and defendant for the purpose of concluding the exchange of properties between them; that about the time of the return of said abstract by defendant, plaintiff caused to be delivered to her a certain report upon the title to her property in Kansas City, which she had agreed to transfer to plaintiff, in which report-plaintiff set forth more than twenty specific objections'to the title of the defendant to the said property in Kansas City, and that all of said objections were-frivolous; that defendant was led to believe and did believe, on account of the conduct of the plaintiff in his requiring the return of the abstract and his frivolous objections to defendant’s, title, that he intended to rescind and did thereby rescind the contract between him and defendant. Further answering- she ■denies each and every allegation in plaintiff’s petition ■contained. Following this is a counterclaim for damages set up by defendant, on which the trial court found against her, and no appeal was taken from this finding; the counterclaim is, therefore, not for consideration.

Reply. Plaintiff for his reply states that defendant went upon and examined the land belonging to plaintiff in St; Clair county, the same which he had contracted to transfer to her, and at the time of the ■execution of said contract defendant wéll knew the location and boundaries of said land. He denies that his title to said land is defective in the particulars set ■out in defendant’s answer, and states that at all times in the petition mentioned, he had a clear and marketable title to the land, subject only to the encumbrance referred to in the contract, and that he caused abstracts of title to the lots in said petition described as belonging to defendant, to be examined, and that based upon said examination he made certain objections in writing, to the title to said lots, which objections defendant failed and refused to remedy, and which plaintiff then waived and withdrew, aud offered to accept such title as defendant had to said lots, notwithstanding said defects.

Following this is a denial of each and every allegation of new matter in defendant’s answer not hereinbefore admitted.

The material testimony is as follows:

The defendant, put on the stand by plaintiff, admitted the execution of the contract and that she had not complied with same.

Plaintiff testifying in his own behalf, said that he never at any time owned any other than the 280 .acres of land in St. Clair county, mentioned in the contract; that upon entering into the contract he gave his abstract of the land to a Mr. Abernathy, of a bank in Kansas City, to have it brought down to date, and then to be delivered to T. A. J. Mastin, who represented the defendant; that plaintiff was directed so to do by the defendant.

The abstract in question was, introduced in evidence, about which there is no question, except as to its showing defects in the title; that Mastin wrote a letter to plaintiff, acknowledging receipt of the abstract ; that plaintiff subsequently received letters from Mastin and defendant concerning said abstract, these he turned over to his local attorney at Cedar Rapids, Iowa, where plaintiff then lived; that plaintiff went to Kansas City in April, 1907, and with John F. Francisco, his attorney, of Butler, Missouri, called on Mastin concerning his contract with defendant. Objections to plaintiff’s title were made at said meeting by Mastin and J. S. Brooks, also counsel for the defendant; that Mastin, among other things, declared he didn’t intend the defendant should exchange property with the plaintiff; that plaintiff then said he was ready and willing to cure any defects, in his title if he knew what they were.

On cross-examination plaintiff stated that since the making of the contract the residence or building on the St. Clair county land had been destroyed by fire; that when he and Francisco went to Mastin’s office and had a conversation about plaintiff’s title, plaintiff did not remember whether anything was said about the specific objections made by defendant’s counsel to his, plaintiff’s, title; that if any patents were obtained to any part of his land, it was after he visited Mastin’s office, and that such patents had not been issued at the time he made this contract; that it was over six months before this trial when plaintiff heard that the building on his land had been destroyed by fire; that heretofore he had brought suit against the defendant in Bates county, for damages on account of her failure to comply with her contract with him, that is, his attorney had begun some kind of a suit, as he had not been down there himself, but that it had since been dismissed; that the abstract of title he had furnished defendant’s counsel was returned to him, at Cedar Rapids, Iowa, he doesn’t remember whether by counsel for defendant, or Abernathy of Kansas City; that plaintiff afterwards brought the abstract to Kansas City and gave it to Bruce Barnett, his attorney, employed in this suit; plaintiff is uncertain whether his attorneys made an effort to correct the defects noted in the abstract; he doesn’t remember what was done; he wrote to Abernathy to get Mastín’& objections to the abstract and he would try to perfect the title. It was admitted that no suit had been brought to perfect any alleged defects in plaintiff’s title to the land; that he may have employed attorneys named Francisco and Clark, of Butler, to bring suit to correct his title; that after he met Francisco in Kansas City, when they visited Mastin’s office, there was no employ-’ ment of Francisco. During the plaintiff’s cross-examination, the letter of counsel for defendant, addressed to plaintiff, in which they set up in detail their statement of the'defects in plaintiff’s- title, was introduced in evidence. It contains the specific objections set forth in the answer.

Plaintiff on redirect examination stated that the defendant personally examined his St. Clair county land, and wrote him, the next day thereafter at Cedar Rapids, Iowa; that on the Thursday before they entered into the contract defendant told him that she had examined the land, and also on the day the contract was made; that plaintiff’s abstract was returned to him directly after he wrote to Abernathy for it; that he is now ready to execute a warranty deed to the 280 acres described in the petition, to the defendant, and has been ready at all times since the contract was made; that he will make said deed and deposit it in the manner the court may direct, and in other respects comply with the contract.

John F. Francisco, attorney, testified that he went with the plaintiff to Mastín’s office when the plaintiff stated that he would remedy any defects in the title to his land that could be remedied, and wanted them pointed out. On cross-examination witness stated he remembered that counsel for defendant referred to the outstanding contingent remainder as shown in plaintiff’s abstract of title, and that parties who had held portions of the land as trustees had deeded the same as agent, but doesn’t remember whether anything was said about large .judgments- outstanding against St. Clair county.

Bert Dines, a former tenant of plaintiff, on the St. Clair county land, testified he removed therefrom about the first of March, 1907, because the plaintiff told him he had sold the farm, and that defendant and her brothers came down there and said they guessed they had traded for the land; that defendant said she thought she had traded some lots she owned in Kansas City for the farm, and wanted to bring some personal property there and leave it; that witness gave her permission so to do, and said he would give possession of the land the first of March anyway; that defendant at that time proposed to sell witness eighty acres of the land; that defendant looked over the farm with witness; that defendant was at witness’s house on the land twice; that these visits were prior to the letter written by Mastín to plaintiff, objecting to the title to the land on account of defects therein shown in the abstract. Witness upon refreshing his memory says that the two visits of defendant to plaintiff’s land were on December 16,1906, and January 23,1907; that since he vacated the premises, until the house burned down, it had no tenant; that the house was destroyed about a year ago, or possibly a little later. Testimony of this witness and that of one John Swofford was also introduced to prove by their personal knowledge of the persons named in the deed creating the contingent remainder, that same had become vested. A patent issued to a fractional forty acres of plaintiff’s land by the United States' Government, under date of June 16', 1908, or a year and a half after the execution of the contract in question introduced in evidence. Counsel for plaintiff at the time of offering same contended there were no corrections to be made in the title or in the abstract to plaintiff’s lands; that the patent received by plaintiff was not necessary to enable him to enforce the contract.

Recalled, plaintiff stated that on the 8th day of January, 1907, he and his wife executed a deed to defendant to the St. Clair county land, and sent same to a Mr. Abernathy of the First National Bank of Kansas City, it being understood between plaintiff and defendant that said bank should be used as a depository for their respective papers. 'The deed itself was excluded because it had not been tendered to defendant. Upon the refusal of the court to admit the deed in evidence, counsel for plaintiff tendered same to the court to be deposited with the clerk, or held in such manner • as it may direct for the purpose of. transferring the title from the plaintiff to the defendant, of the St. Clair county land, in return for which plaintiff’s counsel demanded that the title to defendant’s property be transferred to plaintiff.

The testimony for the defendant, of Jos. S. Brooks, one of her counsel, was, that he had examined and reported on the titles as submitted in the abstract furnished by plaintiff; that upon completing this examination, reports of the result of same were made in detail to the defendant about January 26, 1907; that he was present when plaintiff and Francisco visited his and Mastin’s office; that the special defects which had been reported to the defendant in regard to the plaintiff’s title were then discussed at length with plaintiff and his counsel, among which was the contingent remainder, shown by the abstract to be outstanding, and that plaintiff and his counsel were asked for a showing as to such contingent remainder that plaintiff or his counsel stated that they thought the parties were living and that deeds could be obtained from the children, but they did not know; that anyhow, the title could be cured; that considerable discussion was had in regard to the matter of the contingent remainder, and it was explained to the plaintiff and his counsel how the title could be corrected, but nothing was said by plaintiff or his counsel about the death of the party shown in the abstract to have held the land in trust; that the large judgments then outstanding against St. Clair county were discussed, and it was stated by counsel for defendant if the other defects in the title were corrected perhaps they would not lay any stress upon the existence of these judgments against the county; that plaintiff had made about twenty objections to the defendant’s title to her Kansas City property, and it was stated by counsel for defendant that unless plaintiff would waive them they could not be corrected and the deal could not be closed. A copy of plaintiff’s objections to the defects in defendant’s title was then offered in evidence. "Witness stated that plaintiff said he would not waive any of these objections, that he would make his title good and that he wanted her to malm her title good. A list of the judgments rendered against St. Clair county in favor of holders of bonds, of said county, was then introduced in evidence.

T. A. J. Mastin, one of defendant’s counsel, testified that he was present when plaintiff and Francisco visited witness’s office; that witness stated to plaintiff he had not personally examined the abstract, knew nothing about it, but would and did call his associate, J. S. Brooks, who was familiar with the matter; “that in a general way witness recalled that they discussed the procuring of deeds to cure the defect as to the contingent remainder, and also as to the transfer of the property by the trustees as agent; that Brooks said to plaintiff that the latter’s lawyer - in Iowa had made a lot of trivial objections to defendant’s title, which Brooks said could not be corrected, whereupon plaintiff said that they would not be waived. Other conversation was had in regard to suits to correct the title, but nothing definite was determined upon or ■done.

Defendant testified in her own behalf that she had visited the property the plaintiff had contracted to deed to her, and that the house which she since understood had been destroyed by fire, was worth about one thousand dollars; that at the time she expected to take the land and asked the tenant Dines if she could sell him eighty acres of same, provided she traded for it; that she knew of no defects at that time in the title, and did not know of them until so informed by her attorneys, who reported against her acceptance of the deed after her second visit to the land; that she arranged with the tenant for his removal from the land in the event she traded for it, he saying he was going to buy a place and move away anyway; that she wanted the land if the title was all right.

Further evidence was introduced in regard to the judgments of bondholders against St. Clair county, stated by Brooks, upon being further examined, to be’ $2,000,000. This was all the testimony.

I. The assignments of error, in this case, if our review be confined thereto, are too general and indefinite to merit consideration. It, therefore, becomes necessary, unless we allow the letter of the law of appellate procedure, as announced in our Rule 15, to prevail, to look elsewhere in the record to determine in what respect plaintiff contends that he has been injured by the rulings of the trial court. His brief, although foreign in its. principal features to the assignment of errors, submits matters occurring during the trial, of which he complains, and under the rule announced in Collier v. Catherine Lead Co., 208 Mo. 246, we will review it.

II. In the contract plaintiff’s land is described as “280 acres of land in St. Clair county belonging to the party of the first part; ” in his petition, the land which he alleges is the same as that referred to in the contract, is described by Government subdivisions or by sections, townships, and ranges. Defendant in her answer does not plead the Statute of Frauds, but alleges that the description of the land in the contract is not such as will enable it to be identified or located, or, in effect, that there is no sufficient description of the land in the contract, and that her liability must be measured by that instrument alone.

Without reviewing at length the numerous rulings of this court in reference to the sufficiency of descriptions of lands in contracts for specific performance, it may suffice to say, as was said by Marshall, J., in Johnson v. Fecht, 185. Mo. l. c. 344, in which Fox v. Courtney, 111 Mo. l. c. 150, was cited with approval: ‘ ‘ ‘ The writing must be a guide to find the land, must contain sufficient particulars to point out and distinguish the tract from any other.’ ” And in the later case of Keator v. Realty Company, 231 Mo. 676, 680, Valliant, J., speaking for the court, after citing with approval Springer v. Kleinsorge, 83 Mo. 152, and Black v. Crowther, 74 Mo. App. 480, says: “The land need not be fully and actually described in the paper so as to be identified from a mere reading of the paper. But the writing must afford the means whereby the identification may be made perfect and certain by parol evidence.” Guided by these well-defined declarations. of law, we are of the opinion that the description of the land in the contract is sufficiently •definite to enable same to be rendered certain by the introduction of parol evidence (Fowler v. Fowler, 204 Ill. 82, 97), especially in view of the fact that the Statute of Frauds was not pleaded by the defendant and she admitted the execution of the contract. Ever since the ruling by Scott, J. (1842), in McGowen v. West, 7 Mo. 284, it has been held here that one making a parol contract to convey lands may or may not insist on the protection of the Statute of Frauds. If he confesses the contract and does not insist on the statute, i. e., plead the same, the performance of his agreement will be enforced against him. The following cases, with many others, reiterate this, rule: Missouri R. E. Syndicate v. Sims, 179 Mo. l. c. 685; St. L. K. & N. W. Ry. Co. v. Clark, 121 Mo. 169; Aultman v. Booth, 95 Mo. l. c. 389; Maybee v. Moore, 90 Mo. 340.

III. As we interpret, the evidence, defendant did not attempt to take advantage of any weakness in her own title to defeat plaintiff’s action, but averred in her answer and so contended at the trial, by the introduction of testimony in relation thereto, that plaintiff had urged in his conference with her counsel many objections to her title, all of which were alleged to be trivial, which was not denied by him at the trial, but that plaintiff had insisted upon their correction, and when informed that it could not be 'done, he declared that he would make his. title good and that she must do likewise; thus, in effect, refusing to accept her title .as then submitted. This course, defendant contends, was indicative of a purpose on the part of the plaintiff to refuse in good faith to perform his part of the contract, and hence reciprocally afforded her a reason for a like refusal.

The contract requires that each was to furnish the other an abstract showing a clear title, with deeds to their respective properties, as soon as same (evidently referring to the abstracts) could be brought down to date. This meant that each party was to comply in good faith with these requirements within a reasonable time (and in a case of this character time is of the essence of the contract; Taylor v. Longworth, 14 Pet. 172, 174; Holgate v. Eaton, 116 U. S. 33, 40), and that neither would interpose objections which, if trivial, would only serve to delay or defeat performance on the part of the other. That plaintiff’s objections were trivial is attested by his subsequent proposal to waive same. This, in onr opinion, did not, within tbe time contemplated by the terms of the contract, indicate a bona-fide purpose on plaintiff’s part to perform same, and defendant’s attitude in regard thereto is not without foundation.

IV. It is not necessary to a proper disposal of this case to determine whether the outstanding contingent remainder, the defective deed and ^he missing patents constituted, in fact, defects in plaintiff’s title. They appeared as such in the abstract submitted to the defendant, from which she was to determine the character of plaintiff’s tenure. If there is a break or gap in a record title, it becomes the duty of the owner to look up the evidence in pais necessary to satisfy the vendee that the title is good. [Gerhart v. Peck, 42 Mo. App. 644, 652.] It became the duty of the plaintiff, therefore, to remove these defects in his title appearing in the abstract or satisfy the defendant that they did not exist. It appeared at the trial that plaintiff or his counsel knew at the time of the negotiations that the contingent remainder had become vested, but they did not apprise defendant of this fact. While some preliminary talk was indulged in between plaintiff, his counsel and counsel for the defendant, at the time the conference was held in Mr. Mastin’s office, in regard to the institution of a suit by plaintiff to correct the defective deed, nothing was done, nor were the missing patents procured until long after the conference ; in fact, there is nothing to indicate their procurement until a short time before the trial. He who seeks equity, must do equity. Plaintiff’s failure to perform his part of the contract does not commend him to a court of conscience. While asking relief, it is meet that he should be able to show that he has done all he agreed to do. Having failed in this regard that is sufficient to prevent his prevailing in this proceeding. [Lanyon v. Chesney, 186 Mo. 540, 553.]

V. ■ It will be recalled that one of the requirements of the contract is that the parties shall at the time of the exchange of abstracts, also deker deeds, each to the other, of their respective lands. This plaintiff did not do, but sent his deed to a party in Kansas City, tendering it to defendant only at the time.of the trial. In this particular instance, plaintiff’s failure, in view of the other facts, may be regarded as of minor importance, but it was one of the express conditions of the contract, and if plaintiff had been zealous in the performance of his part of same, he would have complied with this requirement.

VI. It was disclosed during the trial that the dwelling house or residence on plaintiff’s land at the time of the contract, estimated to have keen worth one thousand dollars, had been destroyed by fire some months after the contract was entered into and about a year before the trial. Plaintiff offered nothing by way of reparation for this loss, but simply ignored defendant’s proof in regárd to same. Land, especially a farm, is of much less value without than with a dwelling house thereon. Plaintiff is, therefore, demanding that defendant be required to accept in exchange for her property, which from the evidence is, at least, as valuable now as when the contract was made, property of the plaintiff worth one thousand dollars less now than when she agreed to accept it, when its depreciation is. not to be attributed to any act of hers. Equity will not lend its aid to the consummation of such a purpose on the part of the plaintiff. [Huguenin v. Courtenay, 21 S. C. 403, 53 Am. R. 688.] Under other conditions than existing here, the destruction of the building would not have availed as a defense. To illustrate: If the plaintiff had fully complied with his part of the contract before- the building was burned, by the submission to the defendant of an abstract showing a clear title to the lands in him and had tendered her a proper deed, the contract might be held to have been consummated so far as he was concerned, and the subsequent accidental destruction of the building would not have availed as a defense to the performance of the contract. [Brewer v. Herbert, 30 Md. 301, 96 Am. Dec. 582; Lombard v. Chicago Sinai Cong., 64 Ill. 482.]

VII. Finally this fact should be borne in mind; that the specific performance of a contract is not a mat^er absolute right, but of sound discretion of the court; hence much less strength of case is required on the part of a defendant to resist a bill to perform a contract than is required on the part of the plaintiff to maintain it, because if the court refuses to enforce the specific performance, the plaintiff may be left, in a proper case, to his- remedy at law. [Veth v. Gierth, 92 Mo. l. c. 104.] The remedy will be denied in any case where, under all the circumstances, the decree would be inequitable. [Real Est. Co. v. Spelbrink, 211 Mo. 671, 710; Pomeroy v. Fullerton, 131 Mo. 581, 592.] We hold that it would be here.

It follows, therefore, that the judgment of the trial court should he affirmed, and it is so ordered.

Brown, J., concurs; Faris, J., concurs in the result and in all except paragraph two.


source: Caselaw Access Project

author: PARIS, J.

license: Public Domain

text:
    H. P. LINDERMAN et al. v. CHARLES M. CARMIN, Administrator, Appellant.
    Division Two,
    February 17, 1914.
    1.PRACTICE: Matter for Jury or Court: Different Reasonable Inferences. Where upon the undisputed facts in the case, though all the evidence he produced by plaintiff, reasonable men can draw more than one fair inference from them, it is for the jury to resolve the facts, and not for the court as matters of law.
    2. -: -: Conclusion of Witness: Money Advanced. Where the witness, both on direct and cross-examination, was permitted to testify that plaintiffs (her parents) had “advanced” the money to defendant to go to California to identify the body of his wife (their daughter) who had been killed in a railroad accident, and defendant did not ask for the exact words used, defendant must be held to have waived his right to require a detailed statement of the conversation, and the jury were justified in drawing from the testimony the strongest reasonable inference in plaintiffs’ favor which it would bear, and therefore in finding that the money was a loan and not a gift.
    3. -:---: -: -: Meaning of Advanced. The term “advanced” when used in a contract, or as describing the transfer of money from one person to another, usually means “furnished with the expectation that it will be returned.” So that where the testimony is in words that plaintiffs “advanced” money to defendant, and defendant accepts that mere conclusion of law, without asking the witness to detail the words actually used, the jury are authorized in finding ’ that the money was not a gift, but was a loan, to be returned.
    4.--: -: -: -: —;-: Weighing the Testimony. And though there was some testimony to the effect that plaintiffs, having furnished money to defendant, after-wards by letters and conduct indicated that they did not expect him to return it, the court cannot say that the jury were not justified in finding as a fact that a debt was created, and the money was not a gift, if one witness unequivocally say& it was an advancement, since for the court to say that the letters and conduct rebutted and overthrew the testimony of said witness would be for the court to weigh the evidence, and find a fact — a thing it cannot do.
    5. -: -: Declarations Against Interest: Presumption, Declarations of plaintiffs against their interest are presumed to be true, because against interest; but the presumption is not a conclusive one and the court cannot tell the jury how much weight they must give to either conduct or declarations that may be in conflict with plaintiffs’ position at the trial, Ror undertake to balance them off against positive testimony that, standing alone, would justify a verdict in their favor.
    Appeal from Greene Circuit Court. — Hon. Alfred Page, Judge.
    Affirmed.

      Patterson & Patterson for appellant.
    (1) Tbe court erred in submitting tbe first item of respondent’s case, to'-wit, tbe $320 less ten dollars, to tbe jury, for tbe reason that there was no evidence that said sum was furnished to L. L. Carmin, as a loan, but all the evidence was to tbe effect that tbe said Carmin was respondent’s agent, and that tbe said money was used 'in consummating tbe purposes of tbe agency. (2) It is within tbe province of an appellate court to set aside tbe judgment when tbe record shows no substantial evidence to support tbe verdict on which it is based, since tbe question whether tbe evidence adduced in a given case possesses probative value is one of law and not of fact. Bond v. Railroad, 122 Mo. App. 213. When plaintiff’s own evidence demonstrates that tbe alleged fact on which be predicates bis right to recover cannot exist, it cannot be said that tbe testimony of one of tbe witnesses that such fact does exist is any substantial evidence thereof. DeMaet v. Moving Co., 121 Mo. App. 104; Phippin v. Railroad, 196 Mo. 343; Champagne v. Harney, 189 Mo. 726; Stafford v. Adams, 113 Mo. App. 717; Sanguenet v. Railroad, 196 Mo. 494; Klockenbrink v. Railroad, 172 Mo. ■678; 6 Ency. PI. & Pr. 678; Uhrich v. Osborn, 106 Mo. App. 492; Taussig v. Wind, 98 Mo. App. 129; Mexico v. Jones, 27 Mo. App. 534; Morrow v. Car Co., 98 Mo. App. 351.

      A. F. Drake and Hamlin <& Seaivell for respondents.
    (1) There was an implied promise on the part of Car-min to repay the money advanced him by respondents. Moore v. Renick, 95 Mo. App. 202; Stobie v. Earp, 110 Mo. App. 73. (2) To “advance” money is to pay it before it is due, or it is to furnish money for a specified, purpose, understood between the parties, the money or some equivalent to be returned. R. S. 1909, sec. 1001; 1 Words and Phrases, p. 214; Thorne v. French, 24 N. Y. Supp. 694. It was the legal duty of Carmín to pay all the expenses of burying his wife. 8 Am. & Eng. Ency. 'Law, 838; Matter of Weringer, 100 Cal. 345; Patterson v. Patterson, 59 N. Y. 574, 17 Am. Rep. 384; Jenkins v. Tucker, 1 H. Bl. 90; Ambrose v. Harrison, 10 C. B. 776; Seybold v. Morgan, 43 111. App. 39; Santer v. Scrutckfield, 28 Mo. App. 156; Cunningham v. Reardon, 98 Mass. 538. (3) The court will not reverse a cause unless error has been committed ■“materially affecting the merits of the action.” R. S. 1889, sec. 865. The court should have instructed the jury that it was the duty of Carmín to have paid the -expense of burying his wife and that if it found from the evidence that Carmín received the money from respondents for the purpose of defraying said expense, then it should find the issues for the respondents. But the trial court went further and instructed the jury that it must find that there was an understanding and intention between Carmín and the respondents at the time respondents furnished the money that it would be repaid to them. In fact, the court made that fact prominent, as it gave two instructions on that one point. Of course the evidence shows that there was an understanding at the time, but we contend that under the law respondents would not have to show that fact. But be that as it may, the appellant is in no position to complain, and if the trial court committed error in giving said instruction it was in favor of the appellant. This court should not disturb the verdict, as it is under the law and the evidence for the right party. Haniford v. Kansas City, 103 Mo. 172; Hanna & Co. v. Insurance Co., 109 Mo. App. 157.
   PARIS, J.

This case comes to us from the Springfield Court of Appeals upon the dissent of a judge of that court and the suggestion that the opinion of the majority of the court therein is contrary to the decisions of this court in the cases of state ex rel. v. Elliott, 157 Mo. l. c. 618, and Knorpp v. Wagner, 195 Mo. l. c. 662. The facts will be found stated in the opinion of the Court of Appeals written by Judge Cox, which we shall, with a slight modification, adopt as expressing our views.

The point upon which the case split in the Springfield Court of Appeals is, we think, upon the concrete facts before us, almost wholly academic. This point is thus stated by Judge Cray, upon whose dissent we acquire jurisdiction:

“Where there is no conflict in the evidence and if all comes from plaintiff’s witnesses and the written-admissions made by the plaintiff, then it is the duty of the appellate court to pass upon the testimony as a matter of law.”

On the other hand the majority opinion in this case as written by Judge Cox and concurred in by Judge Nixon, states the rule thus:

“The jury must weigh the testimony even though it all comes from one side and he uncontradicted. ”

It was said by this court in the case of State ex rel. v. Elliott, supra: “There is no conflict in the testimony, and therefore the legal effect of the uncontradicted evidence is open to inquiry in this court.”

In the case of Knorpp v. Wagner, supra, it was said: “If, however, the substantive facts are undisputed, or if reasonable men can draw only one inference from the facts proved, the matter may resolve itself into a question of law. ’ ’

In the case of Finnegan v. Railroad, 244 Mo. l. c. 653, the below rule from 2 Thompson on Negligence, 1179, was quoted with approval: “Where the facts are undisputed, or where but one reasonable inference can be drawn from them, the question is one of law for the court; but where the facts are left by the evidence in dispute, or where fair minds might draw different conclusions from them, it must go to the jury to resolve the dispute in the one case, or to draw the inference in the other. ’ ’

We think that one paragraph of the majority opinion of the Court of Appeals is not in accord with the views expressed oh the point in the cases above cited. We have therefore stricken this paragraph from the opinion, because it expresses a view of the law on the point up for ruling, which, if it is not contrary to our holdings is at least misleading, and because the paragraph eliminated is not, in our opinion, necessary to a decision of the case for the reason given in the next sentence below.

We are clearly of the opinion that this is a case which turns upon the facts, and that on the undisputed facts in the case, reasonable men can with the utmost fairness, draw more than the one inference which favors the insistence of the defendant; and so the facts in the case are for the jury to resolve as the triers of fact, and not for us to determine as matters of law. That this is true might well he urged from the concrete fact now confronting us and which causes this case to come before us, that reasonable men are drawing wholly different inferences from the undisputed facts. It is upon this ground, as the majority opinion as we amend it and adopt it, well expresses the facts and well rules upon the law, that we are disposed to defer to the finding of the jury; regardless of the fact that we might have drawn a different conclusion and might have entertained different presumptions of fact if we were sitting where the triers of fact sat.

With this explanation and emendation of the opinion of the Springfield Court of Appeals we adopt it, both as a statement of facts and as an expression of the law of the case. The opinion follows:

• “This lawsuit originated in the probate court of Greene county, in 1908. The plaintiffs are the -parents of Yernie Carmin, who was the wife of L. L. Carmin, deceased. The defendant is the administrator of the estate of said L. L. Carmin. The demand presented in the probate court was originally for the sum of $939, made up of five items, to-wit: ‘$220 for money loaned L. L. Carmin to defray traveling expenses to California; $100 to defray funeral expenses of his wife; $129 to defray undertaker’s expenses for the burial of the wife of L. L. Carmin; $200 for money had and received, and $300 for money had and received.’
“In the probate court the plaintiffs prevailed and were allowed the claim in full. The defendant appealed to the circuit court, and on trial before a jury, on June 28, 1909, the plaintiffs again obtained a judgment for $439, but subsequently entered a remittitur for $129, leaving the judgment stand for $310. The cause is now here on appeal by the defendant.
“On the trial in the circuit court, an instruction was given to the jury that plaintiffs were not entitled to recover on the items of $200 and $300 for money had and received, and as the remittitur was entered for the $129 sued for as additional funeral expenses, the only items before us for review are the $220 item for money advanced for traveling expenses to California, and $100 loaned to defray funeral expenses.
“The facts of the case are as follows':
‘ ‘ The' deceased, L. L. Carmín, married the daughter of the plaintiffs in 1899, and they afterward moved to Kansas City, and the old folks gave them a restaurant business. They continued in the restaurant business for about a year, when the father of the wife purchased the restaurant and gave her $500 in cash therefor. After this, the parties had no permanent home, but lived a part of the time with the plaintiffs at Sheffield. The daughter, Yernie, left her husband in 1906, and was last heard from at Sulphur Springs in September, 1906, from which place she wrote a card to her folks, stating she would write again in a few days. The next heard of her was in November,' 1907, when her parents saw in a newspaper that she had been killed in California. Upon the receipt of this information, her father willed her husband to come to Kansas City. He immediately went to Kansas City and there was a conversation between him and his father-in-law in regard to going to California after the remains. As a result of this conversation $220 was furnished to Carmín by Linderman, and he went to California.
“The next heard of him was a telegram asking for an additional $100. The amount was wired to him. "When he returned, he brought for burial the body of his wife, and returned to his father-in-law ten dollars, being the amount he had left unexpended. The father made arrangements for the burial and paid, a few days after the burial, the expenses thereof, amounting to $129.
“In order to determine the merits of this controversy, it is necessary for a further understanding of some other financial transactions between the parties. When the wife left the husband in 1906, he made some bitter complaint to her parents to the effect that she had taken his money and property (although it is practically conceded he had none), and he was threatening to put her picture in the newspapers and advertise for her. In order to save this threatened humiliation, a written contract was entered into between the parents and the husband by the terms of which they agreed to give, and did give, him a note for $1000, due in a year, conditioned that the same should be null and void in case the husband and wife became reconciled within the period, and also the note was accepted by the husband as a full and complete settlement of all property disputes between him and his wife and her parents, and it was further agreed that all property and effects belonging to the wife should be turned over to the parents as security for the note and the husband relinquishing to his wife all of his right, title, interest and claim in and to the property.
“The husband, after securing this note and contract, did not turn over to the parents any of the property in his possession, belonging to his wife. After his return from California, he represented to the old folks that if they would take up the old contract and give him the one thousand dollars, he would see to his wife’s property in California, take care of it for them, and also ship her things -to them as soon as he got to Springfield. Whereupon they executed to him three notes, one for $300, two for $250 each, and gave bim $200 in cash, to take up the $1000 note. They after-wards paid the $300 note and the two items of the account presented in the probate court were to recover the $200 cash, and the $300 paid in taking up the $300 note. After getting this money and notes, the son-in-law again absolutely failed to carry out his part of the contract. These items, however, were taken out by the court below, and are not now before us.
“The defendant offered in evidence a letter written by his mother-in-law, Mrs. Linderman, on January 11, 1908, from which we gather that the husband, in violation of the contract upon which he obtained the $200 in cash and the three notes, made a claim to the property of his wife, and in this letter the mother-in-law says:
Sheffield, Mo„ Jan. 11, 1908.
Mr. L. L. Carmin,
Dear Sir:
Lu, we were surprised when we got the letter from Mr. Barnett. We trusted you to go out there and paid every cent for you, never thinking that you would swear to the statement you did. Now this compels us to make oath as to where Vernie got the money. Her pa payed her five hundred dollars for the restaurant, and the other she made by hard work in the restaurant. Her pa was with her when she went to the New England Bank here in K. C., the morning of the 2.7th of Sept. 1905, and had the money changed for the thousand dollar bill, which you made oath on the witness stand that she stole from you, and that it came from your mother’s estate. Lu, how could you have sworn to such a falsehood. Vernie told me, and you did too, that she gave you the money to keep for her while in Hot Springs, she was going out somewhere, and you never would give it back to her, and, of course, as it never was yours, only in your trust, you should have given it back to her without her having to take it. Now as we are paying you the thousand dollars and you are out nothing, not even a meal while you was out in California, you never told the people out there that we was paying all of your expenses for you. We are so sorry that we ever had you go there, but we trusted you and thought you would do what was right, but found we was deceived by you. I don’t,know what kind of a turn this will make in California, but we are duty bound as parents to Vernie to protect her now in regards to how she came by the money. The poor child’s life has been a failure. But' I pray to the God above who knows all things that the poor little thing’s spirit is now at rest, and now, Lu, I will close, hoping to hear from you at an early date, and you will send me all of her things as you promised.
Very respectfully,
Mbs. H. P. Lindekman.
“The only error assigned is the refusal of the court to. sustain a demurrer to the testimony.
“Appellate courts do not -weigh, evidence and should never set aside the verdict of a jury where it is supported by substantial testimony, or where the facts bearing on the issues are disputed or undisputed, but admit of different conclusions or inferences upon which reasonable minds might differ. [Williamson v. Transit Co., 202 Mo. 345; Vincent v. Means, 207 Mo. l. c. 713.]
“A court may determine what is substantial testimony (Stafford v. Adams, 113 Mo. App. 717); but when that is done the court has exhausted its power and the duty of weighing the evidence belongs exclusively to the jury.
“In support of this verdict the respondent has the right to every reasonable inference which may be drawn from the evidence. [Wilson v. Board of Education, 63 Mo. l. c. 140; Heether v. Huntsville, 121 Mo. App. 495.] The appellate court usurps its power when it attempts to substitute its own judgment for that of the jury as the law that gives the court the right to declare the law gives the jury the right to find the facts. [Levels v. Railroad, 196 Mo. l. c. 617.]
“The only items to be considered on this appeal are .$220 furnished Carmin before he started to California, and $100 wired to him after he reached there. Was there substantial evidence in this case to support the verdict for these two items? The testimony on which plaintiffs rely is as follows:
“Stell Linderman, a daughter of plaintiffs, testified in relation to what transpired between her father and Carmin at the time the $220 was furnished, and this was all the direct testimony in relation to that matter. Her testimony on that question is as follows: ‘Q. Did you hear any conversation between Mr. Carmin and your father in regard to going to California? A. Yes, sir. Q. Tell the jury what he said. A. He said he wanted to go to California, but wasn’t able to go. Said he didn’t have the means to go on, and my father advanced him the money. Q. How much money? A. $220.’ Then follows testimony to the effect that her father, after-wards, on receiving a telegram from Carmin, wired $100 to him. On cross-examination we find this testimony. ‘Q. Did your father wire for him to come to Kansas City? A. Yes, sir. Q. Tell him that Vernie, yonr sister, had been killed? A. Told him it was in the paper. Q. And asked him to go to California? A. My father intended to go and Mr. Carmin said he knew he conld identify the body better and wanted to go. Wanted to know if my papa and mamma would not advance the money. Q. They advanced the money? A. Yes, sir; they advanced the money for him to go on.’
“We note that this witness does not give the language of the parties, but only her conclusions from it. This was permitted without objection and the attorney for the defendant, in the cross-examination, led her to repeat her testimony in practically the same language. Now, if we take the language used by the witness and give it the interpretation most favorable to plaintiff, what does it mean? She testified that her father advanced to Carmin $220. The term “advance, ’ ’ when used in a contract, usually means money furnished with an expectation that it shall be returned. [Hartje v. Collins, 46 Pa. St. 268; Balderston v. National Rubber Co., 27 Atl. 507; Powder Co. v. Burkhardt, 97 U. S. 110.]
“Webster’s definition carries the same idea. Abbott’s Law Dictionary defines it as follows: ‘To furnish value before it becomes due, or in aid of an enterprise from which a return is expected.’ If this language had occurred in a written contract wherein one party had agreed to advance money to another and the court were called on to construe it, there can be no question but that it would be held to mean that the money was to be repaid, and it could not be construed to mean a gift, unless it was expressly so stated. Such, language might he used in connection with a gift. It does not necessarily mean that money advanced must, under all circumstances, be returned; yet, that is the sense in which it is most commonly used. Had an objection been made and the witness been required to give the language used by the parties, such language might have shown a clear understanding that the money was to be repaid, or it might have shown it to have been a gift; but having permitted the witness to testify to her own conclusion of the matter, the defendant must now be held to have waived his right to require a detailed statement of the conversation and the jury must be permitted to draw from the testimony, as given, the strongest reasonable inference in plaintiffs’ favor which the testimony will bear.
“If this testimony, above quoted, had been all the evidence in the case, we have no hesitancy in saying that it would support this verdict.
“The defendant contends, however, that the subsequent conduct of plaintiffs, in signing notes and paying money to Carmín, and the letter written by Mrs. Linderman, are inconsistent with the claim that Car-min was, at that time, indebted to them, and raises the presumption that no such debt as now claimed by them existed and for that reason the demurrer to the testimony should have been sustained. This contention is not sound. To so hold would be for the court to say that these facts rebutted and overthrew the testimony of Stell Linderman, which tended to show that the money was furnished with the understanding that it should be returned and to do that would place the court in the position of weighing the testimony,-which it cannot do. Declarations of a party against his interest are presumed to be true because against his interest, but this presumption is not a conclusive one, and the court cannot tell the jury how much weight they must give to either the acts or the declarations of a party that may be in conflict with his position at the trial. . . .
“Such testimony could not do more than raise a presumption of fact; that is, the jury might presume from these facts that Carmin was not indebted to them, or said debt would have been settled at that time, but whether such presumption should follow or not was as much the province of the jury to determine as it was the province of the jury to weigh any other testimony in the case.
“In Ham v. Barret, 28 Mo. 388, this language is used: ‘Where a presumption is one of fact merely, the court is not warranted in declaring it to the jury as a presumption authoritatively raised by law, but should direct them that from the evidence it is their province to determine whether they will raise the presumption or not. . . . Where the facts are before the jury, the presumptions or inferences they warrant are questions purely for them.’
“This case has been followed and approved in Sowders v. Railroads, 127 Mo. App. l. c. 124; Morton v. Heidorn, 135 Mo. l. c. 617; Bluedorn v. Railroad, 121 Mo. l. c. 270, and has never been criticised or overruled for the very substantial reason that the principle therein announced is absolutely sound and must remain the law as long as the right of trial by jury is to be preserved. And while this is a claim against an estate we know of no reason why it should not be determined by the same principles applicable to other cases.
“If we are right in holding that the testimony of Stell Linderman, daughter of plaintiffs, as to what took place at the time the money was furnished to Carmin, would warrant the jury in finding that the parties understood at the time that it was to be repaid, then the court would not be warranted in telling them that the presumption of fact which they might, or might not raise, in their discretion, from the subsequent acts of the plaintiffs, as above detailed, had so completely rebutted and overthrown the direct testimony of this witness that the jury must disregard it; yet this is, in effect, what the court would have done had it given the peremptory instruction as asked by defendant.
“Much stress is laid upon the fact that when Carmín returned from California he gave back to Mrs. Linderman ten dollars of the money which he had furnished. We do not think this fact is entitled to any great weight, for the reason that the payment of ten dollars at that time was in no way inconsistent with the finding of the jury that at the time the money was furnished, the parties understood that it should be repaid, for if Mr. Linderman had furnished to .Carmín the money to pay his expenses to California, either as a gift or as a loan, the return of such portion of the money as was not needed for the trip would be to our mind as consistent with one theory as with the other. The weight to be given to this circumstance, as with the other testimony, was purely a question for the jury and not for the court.
“Our conclusion is that there was sufficient testimony to take the case to the jury, and as this is the only error complained of, the judgment will be affirmed.”

It follows that the opinion of the circuit court of Greene county should be affirmed, and it is so ordered.

Walker, P. J., and Brown, J., concur.