majority">BUEGESS, J.

This is ejectment for the possession of a tract of land in Cooper county. The petition is in the usual form. The ouster is laid on March 20, 1898. The damages claimed are two hundred and fifty dollars, and monthly rents is alleged to be twenty dollars.

The defendants answered separately. In McIntyre’s answer, he denied all allegations in plaintiff’s petition, and then alleged that he was in possession of the land as the tenant of his co-defendant Lawson.

The separate answer of defendant Lawson, after denying generally all the allegations in plaintiffs petition, proceeds as follows:

“This defendant further answering states that on the 22nd day of September, 1896, one T. J. Wallace was the owner of the lands in the plaintiff’s petition described; that on said date this defendant traded for said land with said Wallace, giving in exchange therefor mining stock in the Sedalia Cripple Creek Mining Company, of the par value of six thousand five hundred dollars; that at the date of said trade or exchange said stock was of the market value of twenty-five cents on the dollar, or one thousand, six hundred and twenty-five dollars for the block lot so traded; that said mining stock was duly delivered by this defendant to the said Wallace, and accepted by the said Wallace in exchange for said land on the twenty-fourth day of September, 1896; that immediately upon the delivery of said stock as' aforesaid, Wallace put this defendant in possession of the said land and agreed to execute and deliver to this defendant a warranty deed to same; that said defendant after being put in possession of said land, as aforesaid, made valuable and lasting improvements upon the same, and continued in possession thereof up to the fifth day of February, 1897, on which said date he conveyed said land by quitclaim deed to C. I. Wilson, which said deed was duly recorded *64in the recorder’s office of Cooper county, Missouri, in deed book 16, at page 299, on the eighth day of February, 1891; that said Wilson has been in continuous possession of said land by tenants, after same was conveyed to him by this defendant, up to the nineteenth day of May, 1898, on which date said Wilson reconveyed said land to this defendant by quitclaim deed, and that this defendant is now in possession through his co-defendant as tenant.

“This defendant further states that he has complied with all of the conditions of his said contract with said Wallace aforesaid on his part, but said Wallace has failed, refused and neglected to comply with his part of said contract in this, to-wit, that he has failed, refused and neglected to deliver to this defendant a warranty deed to said land as by said contract he agreed to do.

“This defendant further answering states that whatever claim, if any, the plaintiff may have to said land, he acquired long after this defendant owned said land and with full notice, actual and constructive of this defendant’s and this defendant’s grantor’s right, title and claim to said land.

“This defendant further states that whatever claim the plaintiff may have to said land he received the same without any consideration whatever and holds the same for the mere purpose of prosecuting this suit.”

Plaintiff made reply to both answers denying all new matter in them, and pleaded the statute of frauds with respect to the contract set up by defendant Lawson.

The court, over the objection of plaintiff, submitted the following question to the jury, to-wit: “Did T. J. Wallace and defendant Lawson, on September 22, 1896, enter into an oral contract for the exchange of the land for mining stock.”

To sustain the issues upon his part, plaintiff read in evidence a deed from T. J. Wallace and wife to him for the land, *65dated March 10, 1898, and duly recorded in the recorder’s office of Cooper county. He then proved the monthly value of the rents and profits and rested.

The facts briefly stated are substantially that on the twenty-second day of September, 1896, defendant Lawson and Thomas J. Wallace met at Bunceton, Missouri. Lawson was the agent of the Sedalia Cripple Creek Mining Company, and was selling its stock, and offered to exchange Wallace stock of said company for the land in controversy. They were unable to agree for 'the time being, as to the amount of stock to be given, but Wallace finally agreed to take stock of the face value of $6,500, and to consummate the trade the next day, the twenty-third of September, at the residence of B. C. Wells, who was president of said mining company. Wallace failed to appear at Wells’s place to consummate the arrangement, but sent a note by a boy. Wells and Lawson were uncertain as to whom the note was addressed, but thought it was to Lawson. Lawson delivered it to Wells, however, but it was not produced at the trial because it was said to be lost. Wells claimed to have made a slight search for it after he was subpoenaed as a witness, but failed to find it. The contents of the note as stated by Wells, made no reference to the land. Lawson, in his testimony, over plaintiff’s objection, said that the note or letter stated that Wallace was sick and that Wells would attend to that matter. Lawson prepared a written application for stock in the Sedalia Cripple Creek Mining Company and Wells afterward signed Wallace’s name to this application, or memorandum, and delivered it to Lawson, who went to Sedalia, and later sent to Wells envelopes addressed to differ-. ent parties, supposed to contain certificates of stock. Wells took to Wallace’s house one of the envelopes which was addressed to him, and handed it to him, and he said he did not *66want it, bnt took it and laid it on a desk by tbe side of bis bed in wbicb be was lying sick, and wben be started away Wallace picked up tbe stock and banded it to bim and stated to Wells that be wished a talk with bim before be finished tbe trade. Wells took tbe envelope back and bad it in bis possession at tbe time of tbe trial. Tbe application was subsequently destroyed by Lawson. Tbe note or letter from Wallace to Lawson made no reference to tbe real estate or to tbe terms of any agreement. Lawson claims to bave taken possession of tbe land about September 30, 1896, and to bave put defendant McIntyre on it. McIntyre testified that be entered upon tbe land October 20; that be knew at tbe time that Wallace claimed to own the land. Lawson, in a short time after tbe alleged verbal contract of September 22, 1896, called to see Wallace at bis bouse; Wallace then denied ever having made tbe contract set up by Lawson, or that be bad ever agreed with Lawson to exchange tbe land for mining stock; be became angry with Lawson and ordered bim out of bis bouse. Wallace did not know that, Lawson claimed to bave taken possession of tbe land until the date of this interview.

Tbe plaintiff was put on tbe stand by defendants; be stated that Wallace told bim at tbe date be purchased tbe land, March 10, 1898, that be bad never traded or sold tbe land to Lawson. Lawson conveyed tbe land by quitclaim deed, dated February 5th, and acknowledged February 6, 1897, to I. C. Wilson, one of bis attorneys, for tbe express consideration of one dollar. Wilson, by bis quitclaim deed, dated May 1, 1898 (after this suit was commenced), re-conveyed tbe land to Lawson.

At tbe close of all tbe evidence plaintiff asked tbe court to instruct tbe jury as follows:

“Under tbe evidence in this case tbe jury will find the issues for tbe plaintiff.

*67“Although the jury shall believe from the evidence that Thos. J. Wallace had some negotiations with one C. O. Lawson about exchange of the land in the petition described for certain mining stock, the court instructs you that the plaintiff is entitled to recover unless the jury shall believe from the evidence that there was an agreement entered into and a meeting of the minds of said Wallace and Lawson, and unless there was a contract entered into whereby Wallace agreed to sell the land to Lawson for mining stock.”

Which instructions were refused and plaintiff duly excepted.

No instructions were given.

There was a verdict and judgment for defendants. Plaintiff appeals.

While it is conceded by counsel for plaintiff that this is an equity suit (as to which we express no opinion. Sec. 721, R. S. 1899; Major’s Heirs v. Rice, 57 Mo. 384) and as a sequence, the right of the court, if at any time during the progress of the cause it was of the opinion that it was necessary to determine any fact in controversy by the verdict of a jury, to direct an issue to be made up for that purpose (sec. 722, R. S. 1899), they claim that the submission to the jury was of a single issue, that is, whether or not T. J. Wallace and defendant Lawson on September 22, 1896, did enter into an oral contract for the exchange of the land for mining stock, when all the issues in the case should have been submitted, if any. But under section 722, Revised Statutes 1899, the court was authorized to submit such issues to the jury as it thought necessary. The vice of the issue submitted, however, was that it was one of law which was for the decision of of the court, and not one of fact to be passed upon by the jury. A contract is an agreement between two or more persons competent to contract, upon a sufficient consideration to do or not *68to do some particular thing; the. essential elements of which “are the existence of two or more contracting parties, a meeting of their minds by which each gives his voluntary assent to the thing agreed upon, and an obligation, either created or dissolved, which constitutes the subject matter of the undertaking.” [7 Am. and Eng. Ency. of Law (2 Ed.), 98.]

The court should have told the jury, either in submitting the issue or in appropriate instructions, what was necessary under the facts disclosed by the record in this case, what were the necessary essentials, to make a contract between Wallace and Lawson, with respect to the exchange of the land in question for mining stock in the Sedalia Cripple Creek Mining Company, and not left them in the darky as it did, with respect to this necessary information. However, as the verdict of the jury yras merely advisory, we do not think the judgment should be reversed upon that ground alone. But with due regard for the verdict of the jury, and the judgment of the court to the contrary, we are unable to concur in the conclusion reached by them, for there was wanting the essential elements to the contract, the meeting of the minds of the contracting parties with respect to its terms and conditions, the delivery of the stock and its acceptance by Wallace, and the want of authority on the part of Wells from Wallace to enter into it, as is claimed by defendants to have been done. The only authority which it is claimed that Wells had from Wallace to make the contract seems to have been contained in a note written and sent to Lawson the morning next succeeding the day that he and Wallace had the conversation in Bunceton in which Lawson proposed to exchange mining stock for the land, and the most that is claimed for it is, that Wallace suggested in it that Well's would attend to the matter for him, but this fell far short of an'authority upon the part of Wells to close the trade for the land, and to receive in payment therefor mining *69stock. But even this uncertain and indefinite note was lost or mislaid and could not be found and was not therefore produced on the trial. But this is not all. After Wells received the mining stock from Lawson, he went to Wallace’s house, found him in bed sick and handed it to him, and he said that he did not want it, took it, and laid it upon a desk beside his bed, and when Wells started to leave, Wallace picked up the stock and handed it to him remarking that he wished to talk with him before he finished the trade. Wells took the stock and has kept it in his possession ever since. There can not be, under these facts, any escape from the conclusion, that Wells had no authority to enter into the contract in the first place, and that the minds of the contracting parties never met with respect to its terms and conditions in' all its parts in the same sense, which was absolutely necessary in order to constitute a contract. [Green v. Cole, 103 Mo. 70.]

But even if there was such an agreement, and Wallace received in payment for the. land the certificates of stock as agreed upon, as the contract was in parol this did not take it out of the statute of frauds, which requires all such contracts to be in writing. [Sec. 5186, R. S. 1889 ; Lydick v. Holland, 83 Mo. 703.] Defendant however insists that he took possession of the land under the contract, after complying with its terms on his part, by and with the consent of Wallace, and this was such part performance as to take the case out of that statute. But the evidence shows that Lawson .did not take possession with the consent of Wallace; upon the contrary it shows that Lawson, in a short time after it is claimed by him that the contract was entered into, went to see Wallace at his house, when he denied having made the contract, or that he had ever agreed with him to exchange the land for mining stock, became angry, and ordered Lawson out of his house, and that he did not know that Lawson claimed to have taken pos*70session of the land until after the time of this interview.

It follows that, upon any theory of the ease, plaintiff was entitled to recover.

We therefore reverse the judgment and remand the cause with directions to the court below to enter up judgment for plaintiff for the possession of the premises, with an order to inquire as to the amount of damages; rents and profits, to be included in said judgment.

Sherwood, P. J., and Qantt, J., concur.

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