On’the nineteenth day of November, 1890, plaintiff sold to the defendant an undivided one half interest in a mining lot rin Webb City, Missouri, and certain machinery and mining tools, for a consideration of $1,000. No money was paid, nor any conveyance made at the time of the sale. But plaintiff executed and delivered to defendant the following:
‘‘CONTBACT OP SALE.
“Webb City, Mo., Nov. 19, 1890.
“Know all men by these presents that I agree to sell, transfer and assign all of my undivided one half interest in Mining Lot No. 65, together with hoister, tools, etc., thereto belonging to me, on the C. C. M. & S. Co. land at Webb City, Jasper county, Missouri, to G-. W. Beasley, on condition that he pays or cause to be paid $500, with interest, on or before May 19, 1891, and $500, on or before November 19, 1891, as agreeable to his two promissory notes given this day, and described above, and further, if the said Gr. W. Beasley should prefer to pay off said notes at any time before said notes are due, he can do so, but if the said GL W. Beasley should want to sell said lot before the maturity of either of said notes, then I will transfer my interest on the payment of said notes and interest.
“In witness whereof, I have hereunto set my hand and seal this day and year above written.
“[seal] • J. B. OvEBSTBEET.”
At the time of the execution of the foregoing contract, Beasley made the two notes provided therein, reciting that they were “given as part payment on the undivided one half interest in Mining Lot 65,” etc. *319This action was brought to enforce payment of those two notes. In the answer, among other defenses relied on, was a total failure of consideration, in that plaintiff did not, at the time of the sale or at any time, own an undivided half interest, or any title whatever, in the lot sold, and never was in a position to sell or convey the same, and in fact never conveyed or offered to convey any interest in said lot to defendant. From the evidence it appears that plaintiff and defendant had been jointly engaged in mining on said lot 65, and that there was, on the property, a hoisting machine, a derrick and some mining tools in which the plaintiff owned a half interest. But it is clear that plaintiff had no title to the real estate and never offered to convey the same to defendant. At the close of the testimony the court gave a peremptory instruction for defendant; plaintiff took a nonsuit with leave, and after an unsuccessful motion to set the same aside, the case was brought here by appeal.
The written agreement signed by plaintiff Over-street, was a clear and unequivocal contract to convey to defendant a fee simple title to the one half interest in the land mentioned. An agreement to sell land generally is in contemplation of law an agreement to sell an estate in fee; and the purchaser may refuse to complete his contract if the vendor is unable to make out a title to, and convey, such estate. 2 Add., Cont., sec. 514. The oral evidence offered by plaintiff which tended to prove that the contract between the plaintiff and defendant was not as written, but was merely for the sale of a mining license, was on the plainest principles incompetent and should have been rejected. It was a manifest purpose to contradict and vary the terms of a written contract by a contemporaneous oral evidence. The parties in this instance had incorporated the terms of *320their agreement in a writing, and by it their rights must be adjudged.
The case in hand is simply this: Plaintiff, in consideration of $1,000 to be paid to him by defendant (and which was evidenced by the promissory notes sued on as also by the written agreement), contracted in writing, to sell and convey to defendant certain land. Plaintiff never owned the land and was unable- therefore to convey the same. This was, as to the land, a failure of consideration and to that extent was a good defense to the notes. But the evidence tends to prove that the agreement was for the sale of certain personal property in addition to the sale of the land. Plaintiff sold also to the deferídant a half interest in some machinery and tools, which the defendant took possession of and presumably converted to his own use. At all events the defendant received this property and has never returned the same. This personal property interest entered into the consideration of the notes, and to that extent plaintiff is entitled to recover. Armstrong v. Johnson Tobacco Co., 41 Mo. App. 255. The case, then, is not one of total, but of partial failure of consideration.
In order, then, to permit plaintiff t<3 avail himself of this right of partial recovery, the judgment will be reversed and cause remanded.
All concur.