Leak v. Elliott, 4 Mo. 446

Opinion delivered by Wash Judge. This was an action of assumpsit, instituted by Leak v. Elliott, in the Ralls circuit court, to recover back a sum of money paid by the appellant to appellee on a parol contract, entered into between the parties, then resident in the State of Kentucky, for the conveyance by Elliott to Leak,, of a tract of land tying in said State of Kentucky, Elliott pleaded non assumpsit and the statute of limitations,.and had a verdict and judgment; from which Leak has appealed to this court.

The facts are preserved by bill of exception, from which it appears that about sixteen years before the institution of this suit, Elliott sold Leak a tract of land in the State of Kentucky, where they both resided at that time, for the sum of two hundred dollars, which Leak paid to Elliott. That Elliott put Leak into possession of the land, who proceeded to split rails upon the land, and after working thereon for a day, was threatened with a suit, if he did not desist: and thereupon desisted from working further upon said land, and abandoned the possession thereof to some person having a counter claim.

No deed of conveyance was ever executed by Elliott to Leak, but it was proven by several witnesses, that Elliott admitted a short time before the institution of this suit, that he had received from Leak two hundred dollars for the land. - That Leak had no writing to show for it; that he had never denied it, and was willing at any time to make Leak a deed for the land; either a general warranty deed or such deed as he held &c. Upon this state of facts, the plaintifi’ in the circuit court moved for the following instructions to the jury: 1st.

That if they shall believe from the evidence that the money demanded was originally due; and that from the acknowledgment of the defendant, it now remains unsatisfied, then they must find for the plaintiff. 2nd. That if they believe from the evidence, that the money demanded was given in consideration of a parol contract concerning the sale of land, that the said contract is void in law. 3rd.

That if they shall believe from the evidence in the cause, that the defendant acknowledged within five years last past, before the institution of this suit, that he had received two hundred dollars from the plaintiff, in consideration of a parol contract for land, made between the plaintiifand defendant, and professed' his readiness to, complete said contract, .that the said' acknowledgment takes the case out of the operation of the statute, and that they must find for the plaintiff.

The court refused to give the first and third instructions, prayed for by the plain tiff; and gave the second instruction; and the plaintiff excepted to the opinion of the court, in refusing the instructions. Opinion of the court.

If an action of assumpsit is brought to recover money paid on a contract made in Kentucky, and alleged to be void, it devolves on the pltf. to show that by the laws of Ky. the contract was void, The court will _ notice1 of the laws ef another state, The defendant then moved the court to instruct the jury, that unless they believe from the evidence that the defendant has promised the plaintiff to pay him the money in question, or made some acknowledgment amounting to a promise to pay it within ten years next before the commencement of this action, they must find for the defendant. 2nd.

That unless they believe from the evidence in the case, that the defendant made an unqualified and unconditional acknowledgment, within ten years next before the commencement of this action, that he was originally bound to pay the money in question to said plaintiff, or that he so promised to pay it, they must find for the defendant. 3rd. That if they believe from the evidence, that the acknowledgment of the defendant was made with a view to a compromise, and to bury the hatchet or make peace, it.is not binding on the defendant, except for the purpose made by the defendant.

Which instructions prayed for .by the defendant, were given by the court: to the giving of which, the plaintiff excepted. The plaintiff then moved for a new trial, because the verdict was against law and evidence; and because the court refused to give proper, and gave improper instructions to the jury. Which motion was overruled by the circuit court, and excepted to by the plaintiff’s counsel. It is now assigned for error, that the' circuit court misdirected the jury, and refused to grant anew trial.

It is not shewn how the laws of Kentucky would regard this contract, or whether a parol contract for the sale of land, would or would not be valid. We take it, that the instructions were predicated on the belief that the laws of Kentucky on this subject, are like the laws of Missouri: and we may know, apart from the record, that they are so: yet, we cannot undertake .judicially, to know the laws of Kentucky. The remedy upon the contract, must be enforced according to the laws of Missouri. And the second instruction given for the defendant, was clearly wrong.

A promise to pay upon condition, may as well take the case out of the statute, as any absolute provided. In such case, it would only be necessary to show that the condition had been complied with, the contingency had arisen, upon which the payment was provided. The judgment of the circuit court, must therefore be reversed, and the cause remanded for a new trial. In order to entitle the plaintiff to recover, it will be necessary to show, that by the laws of Kentucky, the contract between himself and Elliott for the sale and purchase of the land, was null and void at the time it was entered into.

We have not thought it essential at present, to dispose of the other points that have arisen in this cause.