* Headnote 1. Frauds, Statute of, 27 C.J. section 425; Money Received, 27 Cyc. p. 868 (1925 Anno); 2. Vendor and Purchaser, 39 Cyc. p. 2004; Specific Performance, 36 Cyc. p. 552; 3. Appeal Error, 3 C.J. section 626. Plaintiffs, who are husband and wife, sued to recover $1000 paid by them in a real estate deal. The cause was tried before the court, and the finding was against plaintiffs and they appealed.
Plaintiffs signed what was intended to be a contract for the purchase of certain described lands in Greene County. Defendant Hood was the owner of the land, and defendants Hays composed the real estate firm who negotiated the deal. The consideration was $10,000 and $1000 was to be paid upon the signing of the contract, and the deal was to be completed in sixty days. The deal failed because of a failure to agree upon the length of time a $6000 deferred payment should be carried by defendant Hood.
There is but one point in the case. Plaintiffs contend that their petition is for money had and received, and in effect plead the Statute of Frauds, and that the contract is void upon its face, because of the absence of *Page 487 definite specification as to the loan or deferred payment. Defendants contend that plaintiffs' petition is bottomed upon an alleged breach of contract, that the cause was tried upon that theory, and decided in the trial court upon that theory, that plaintiffs did not plead the Statute of Frauds, and that they cannot stand here upon a theory entirely different to that upon which the cause was tried below.
The petition is not set out in full in the abstract of the record, but plaintiffs state its substance as follows: "That the defendants Ed Hays and Hugh Hays were partners engaged in the real estate business under the firm name of Hays Brothers; that the said plaintiffs and the defendant Hood signed a written agreement by the terms of which the plaintiffs agreed to buy from the defendant Hood the above described property for the sum of ten thousand dollars, that the defendants Hays Brothers were the agents of the said Hood in making said sale, and, at the time of making contract, the plaintiffs deposited one thousand dollars with the defendants Hays Brothers to be turned over to Hood and applied on the purchase price of said land if the title was found to be vested in Hood, and he afterward executed and delivered to plaintiffs a warranty deed to the property and complied with the other conditions of the contract.
The contract further provided that the balance of the purchase price for said land should be paid as follows:
`Three thousand dollars at the closing of this deal, and that the party of the first part (Hood) agrees to carry a loan of six thousand dollars, but parties of the second part (plaintiffs) have the privilege to pay all in cash if they prefer.'
That at the time of signing said contract and depositing the one thousand dollars with the agents, Hays Brothers, it was understood between plaintiffs and Hays Brothers that the six thousand dollars loan which Hood was to carry should be evidenced by plaintiffs' promissory note, bearing legal rate of interest, secured by *Page 488 deed of trust on the property purchased and which said note should mature in from three or five years, the customary date of maturity of real estate loans.
Said contract further provided that if the plaintiffs failed to comply with the requirements on their part for a period of sixty days, the said one thousand dollars deposited with the Hays Brothers should be forfeited and should be divided equally between the said Hood and Hays Brothers.
That before the expiration of the sixty days they offered to pay the sum of three thousand dollars, the balance of the cash payment, to give their note for six thousand dollars due on or before three years after date and secure the same by deed of trust on the property, that they demanded a deed but that said Hood refused to execute a deed and claimed a forfeiture of the one thousand dollars deposited with Hays Brothers. After plaintiffs failing to obtain a conveyance of said property from defendant Hood, they demanded the return of the one thousand dollars deposited with Hays Brothers and they (Hays Brothers) declined and refused to return said deposit and plaintiffs pray judgment for the one thousand dollars together with interest and costs."
Plaintiffs cannot escape from their petition. It is bottomed upon a breach of contract. They allege the whole contract which they say was agreed upon, and ask judgment for the amount paid because defendants failed to complete the deal on the basis of what plaintiffs contended was the contract. The case, as is shown by the evidence, was tried on the theory that plaintiffs were seeking to recover on the ground that defendants had failed to comply with the contract. Both parties agreed that plaintiffs were to have time on the $6000, and that the deferred payment was to be evidenced by plaintiffs' note secured by trust deed on the land. Plaintiffs contended that the time was to be from three to five years, while defendants said the time was not to exceed one year. Plaintiffs did not allege, even inferentially, that *Page 489 the contract was void or unenforceable under the Statute of Frauds for lack of definiteness or because of the absence of essential terms; and nowhere in the record does it appear that plaintiffs relied upon the invalidity of the contract as one for the sale of lands.
Plaintiffs could waive the right to invoke the Statute of Frauds if they so desired. (Aultman v. Booth, 95 Mo. 383, 8 S.W. 742); or they might have, in a separate count, invoked the statute, section 1221, Revised Statutes 1919, and if the contract was unenforceable, then they would have recovered as for money had and received. [Allen v. Richard, 83 Mo. 55.]
Assuming that the contract was valid and that defendant Hood refused to perform, plaintiffs could then have recovered back the amount paid, or they could have tendered performance on their part and enforced performance on the part of defendants. Plaintiffs proceeded as though the contract was valid, and that defendant Hood refused to perform, and sought to recover on that theory. That plaintiffs cannot proceed here on a different theory is well-settled law in this State. [Farmers Bank of Deepwater v. Ogden, 192 Mo. App. 243, l.c. 254, and cases there cited.]
There are instances where the Statute of Frauds may be invoked when not specifically pleaded (Hamburger v. Hirsch, ___ Mo. App. ___, 212 S.W. 49), but the point here is not that the statute was not pleaded, but that the case was not tried on the theory of an unenforceable contract.
The judgment should be affirmed and it is so ordered. Cox,P.J., and Farrington, J., concur. *Page 490