Kansas City Stock Yards Co. v. A. Reich & Sons, 250 S.W.2d 692 (1952)

Citation: Kansas City Stock Yards Co. v. A. Reich & Sons, 250 S.W.2d 692 (1952)
Parent Document: Kansas City Stock Yards Co. v. A. Reich & Sons, 250 S.W.2d 692 (1952)
Jurisdiction: Missouri (state)
Effective Date: 1952-07-14
Original Source: https://www.courtlistener.com/opinion/1775918/kansas-city-stock-yards-co-v-a-... ↗

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The appellant next insists that the agreement, if made, was not in writing, was not to be performed within a year and therefore came within the provisions of the Statute of Frauds, which requires agreements that are not to be performed within one year from the making thereof to be in writing. We might observe that defendant, by its second amended answer, pleaded that this was an oral agreement. The plaintiff filed no reply and did not set up the defense of the Statute of Frauds. Neither was any objection made to the testimony on that ground. The statute should have been pleaded if it was to be interposed as a defense, State ex rel. Place v. Bland, 353 Mo. 639, 183 S.W.2d 878; Section 509.090 RSMo 1949, V.A.M.S.; McGuire v. Hutchison, 240 Mo.App. 504, 210 S.W.2d 521, but be that as it may, both parties agree that it was a tenancy from month to month, that it could be terminated by the proper statutory notice. In fact, representatives of plaintiff at one time told representatives of defendant that it was their intention to terminate it. It could have been terminated by either party by giving 30 days' notice. Section 441.060 RSMo 1949, V.A.M.S. The fact that they continued the tenancy from month to month from 1938 to 1949, does not bring it within the Statute of Frauds. The law relative to this question is so clearly and succinctly stated in 37 C.J.S., Frauds, Statute of, § 55, p. 562, that we quote it:

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