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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The above constitutes the material portions of the testimony of both Broadhead and Krum, taken at the first and second trials. An examination of it shows most conclusively that there is really no difference. In substance and sense it is precisely the same. Some paragraphs are changed so as to stand in different order *611in the arrangement, and the phraseology in some instances is changed; but it would puzzle the most acute and refined intellect to point out any real difference in substance. To talk about harmonizing the evidence of these two witnesses is simply ridiculous and absurd. In essential parts they flatly and squarely contradict each other. The truth is, the matter was faded and dim in their minds, and they had different impressions. But one thing is abundantly apparent, and that is that Broadhead had no authority to compromise and dismiss the $7,000 suit, and that Grumley was wholly ignorant that any arrangement had been made respecting it until after his return from Memphis, many months subsequent. Broadhead unequivocally disclaims any authority from Grumley to compromise this suit for $7,000, but has an impression that it was to be dismissed. If the judgment and suit were both included in the settlement, why was not ihe order for the dismissal, as well as the other two papers, signed by Grumley ? When they want a receipt that will bind Grumley, and an order for entering satisfaction on the record, then his signature is procured; but the order of dismissal is strangely and unaccountably withheld from him. It would not do to say that the clerk would not know his signature, for the clerk would know it as well in the one case as in the other. The parties were willing to risk his signature in the matter of the receipt and the entry of satisfaction on the record. Why not risk it also to the order of dismissal if that came within the terms of the agreement ? No attempt has been made to answer this question, and I imagine it would be found very difficult to answer. Broadhead says that he cannot give any satisfactory explanation of how he came to settle the second suit; and Krum says he cannot give any satisfactory explanation of how it happened that Sharp & Broadhead signed the order of dismissal, instead of Grumley. In these statements-I am of the opinion that they are both correct. This examination! of the evidence, in connection with my prior dissenting opinion1,, must suffice. One of the concurring judges, to evade the statute of frauds, uses this language: “ One who sells his equitable inters est in land, receives the consideration and yields ^possession, will not be permitted to say afterward that the assignment was not in *612writing; or, if tbe bolder of tbe equity surrenders to birn wbo bas tbe legal title, accepts tbe consideration and gives possession, the contract is executed, bis equity is dead, and no court of equity could enforce it.” I readily admit that this is tbe law, but it bas no application to this case.

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