¶1Defendant sold to plaintiff ten acres of land in Vernon county, Missouri, for $100, in divided and deferred payments. Plaintiff took possession by cultivation and made several payments to defendant. Afterwards, defendant abandoned his contract with plaintiff and sold the land to a third party who went into possession. Plaintiff thereupon brought this suit against defendant to recover back the payments he had made him. He recovered judgment in the circuit court and defendant appeals.
¶2It is suggested that the justice of the peace before whom the case originated had no jurisdiction since it involved title to real estate. There is nothing in the point. The suit is to recover money paid on a contract which defendant is charged with abandoning. The fact that it was necessary to prove that defendant had sold the land to another did not involve a question of title. It was merely a matter of evidence in proof of a fact.
¶3It seems that some of the payments were made by plaintiff out of the time required by the contract and that taxes were not paid by him, etc. Defendant contends that such being the ease plaintiff must rely upon a waiver by defendant since the latter accepted of the payments without insisting on the terms of the contract, and that relying- upon a waiver he should have pleaded it, as seems to be required in this state in all cases except they be insurance cases. Lanitz v. King, 93 Mo. 513; McCullough v. Ins. Co., 113 Mo. 606, 616. But this case originated before a justice of the peace where technical rules; of pleading are not enforced. The statement of plaintiff’s cause of action was sufficient to admit the evidence as given.
¶4We do not regard the point of conflict in the descriptions of the land contained in defendant’s contract with plaintiff and his deed to the third party gs being meritorious.
¶5*346We have gone carefully over appellant’s brief and argument in connection with the evidence and find that the judgment is manifestly for the right party and it will therefore be affirmed.