Grumley v. Webb, 48 Mo. 562 (1871)

Citation: Grumley v. Webb, 48 Mo. 562 (1871)
Parent Document: Grumley v. Webb, 48 Mo. 562 (1871)
Jurisdiction: Missouri (state)
Effective Date: 1871-10-15
Original Source: https://www.courtlistener.com/opinion/8046745/grumley-v-webb/ ↗

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Per Curiam.
1. Practice, civil — Supreme Court — Stare decisis. — Where,'upon a second appeal to the Supreme Court, the two records are the same, the former find-ng should control, unless injustice to the rights of parties would be done by adhering to the first opinion.
Per Wagner, Judge, dissenting.
2. Statute of frauda — Sale by parol — Transfer of possession — Payment of purchase money. — Where an equitable estate is sold by parol, a transfer of possession is essential to take it out of the statute of frauds. The mero payment of the purchase money will not have that effect.
yy*. Myers, with Geo. W. Cline,
for the motion, pressed the point that the evidence in the two cases was essentially the same, and quoted extensively from the testimony of Krum and Broad-head as given at the two trials. It was urged that the words of the receipt, “ or either of them,” were common in legal documents, and meant simply “jointly or severally;” that Broadhead’s statement that he “explained” the receipt to Grumley, on which the court laid so much stress, amounted to nothing; that such a statement was not evidence, but a legal conclusion; that what he said, what Grumley said, whether the explanation was before or after the settlement, did not appear. Counsel also contended that Webb’s statement at .the second trial, showing a balance in, Grumley’s favor-of $4,089.19, .was..purely ex.parte, and admitted in .evidence below simply as a. part of the res gestae, showingwhat Webb claimed,, not what was in fact due; that in Webb’s statement .he charged himself with no interest, but debited. Grumley with 8.per cent,.;commissions amounting to $1,417.78 ; that on his own showing, after deducting his .com-* •missions, Webb owed. Grumley, on'January 1, 1864, $5,506.97;' that had. Grumley received possession on his return from Europe, and a new lease,, as;the court said he should have, done, he would have had rents up to January 1,1864, worth, according to Broad-head, from $8,000 to $9,000, and the lease from 1864 to 1874, worth,, as conceded, not less than $12,000 besides — in, all about $20,000; — instead of all which he received $6,500, a large part of which he -has paid for attorneys’ .fees, made necessary by Webb’s unjust refusal to surrender.
*599For the reasons given in the foregoing opinion, I entirely dissent from the judgment of the majority of this court, and think that the decree rendered in the court below should be affirmed. --- 070rehearing by Bliss --- On Motion for Rehearing.

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