Reynolds v. Davis. The instruction is further criticized on the ground that it assumes defendant knew Bower and the plaintiffs had previously been associated in business. We do not think the instruction is justly subject to such criticism. It required a finding of previous business relations and then proceeded "and if you further find that the defendant, knowing this, employed the said C. M. Bower," etc. It required not only a finding of the employment, but also knowledge of such prior business relationship. The evidence shows that Bower told defendant he had some "friends" he thought he could interest in the purchase of the land. Defendant admitted that he secretly gave Bower a rebate or commission of about $3000, which was not given to the plaintiffs. There is also evidence tending to show that the checks given by Bower for his one-third interest were not cashed by the appellant. We think there is substantial evidence in the record tending to prove that defendant knew plaintiffs relied upon Bower because of prior business relations and that defendant took full advantage of plaintiffs' confidence in Bower. There is evidence of statements made by Bower regarding the land which had a tendency to lessen their vigilance in dealing with defendant. The assignment of error in respect to the giving of Instruction Three is overruled. VI. Defendant complains of the refusal of his requested Instruction A, which was as follows: "The court instructs the jury that if you find for the plaintiffs under the instructions given in this case, then you will assess their damages at the difference between what plaintiffs paid defendant Davis for Damages. the lands purchased by them from him and the reasonable, fair market value of said lands at the time of the purchase thereof by plaintiffs from defendant Davis." Measure of What we have above said concerning the sufficiency of the petition to authorize a recovery represented by the difference between the real value of the land and its value if it had been as represented shows that this instruction Reynolds v. Davis. improperly limited plaintiffs' recovery and that its refusal was proper. VII. Defendant complains of the refusal of Instruction C, which was as follows: "The court instructs the jury that the plaintiff cannot recover upon the ground that C. M. Bower was paid a commission.” Commission. The petition did not seek, nor did any of the instructions given for plaintiffs authorize, a recovery on the ground that Bower was paid a commission. We are unable to understand on what theory Instruction C was offered by defendant. The evidence that Bower was paid a commission or given a rebate and that his checks were not cashed was clearly competent, but such facts were not pleaded, nor relied upon as a basis for recovery. Such evidence was merely corroborative proof of the existence of the basic facts in the case. VIII. Error is assigned because the trial court refused defendant's Instruction D, which was as follows: "The court instructs the jury that if you find and believe from the evidence that the plaintiffs, by the exercise of ordinary care, could have investigated and ascertained the kind and character of Personal Investigation. the Bert West land for farming purposes and what it produced the preceding (year) here, then you will find the issues in favor of the defendant upon the allegation of misrepresentation as to the agricultural value and agricultural productiveness of said land." This instruction ignored the evidence of the previous business relation of plaintiffs and Bower and the effect of such business relations upon the extent of the investigation plaintiffs were required to make because of such relationship. The instruction was therefore properly refused. IX. Complaint is made of the admission of testimony in respect to defendant's reasons for wishing to sell; that Bower said twenty-acre mining leases could be Reynolds v. Davis. Reasons for sold for $2500 each; that the royalty would pay for the land in a short time. It is said defendant's reasons for selling were immaterial, and that the testimony as to such statements and representations did not constitute actionable fraudulent representations. Even if all this be true, all such statements were part of the transaction which plaintiffs were entitled to show. The trial court did not authorize the jury to find for plaintiffs upon such statements. Complaint is also made because the trial court refused to strike out said testimony. If the testimony was admissible in the first instance, and we think it was, the trial court properly refused to strike it out. Knowledge of Fraud. X. Error is assigned in the refusal of the trial court to permit defendant to show knowledge on the part of plaintiff Reynolds that Bower was paid a commission. It appears that the first payment had been made at the time such knowledge is said to have been acquired by Reynolds. Plaintiffs could then have refused to go on with the contract and could have sued for the money then paid or they could go on with their contract and sue for damages if the property was not as represented. [Ryan v. Miller, supra, 1. c. 509.] They chose the latter course and it is no defense to such action that plaintiffs, after partially performing their contract, obtained knowledge of such fact and afterward performed the contract on their part. XI. The final contention is that error was committed by the trial court in permitting plaintiffs to show by the deposition of witness Caruthers that the reputation of defendant for honesty and fair dealing was bad. This testimony was offered in rebuttal and for the purpose of impeaching defendant as a witness. This was proper. Defendant cites Black v. Epstein, 221 Mo. 1. c. 304, 305; Bank v. Richmond, 235 Mo. 1. c. 542 and Gourley v. Callahan, 190 Mo. App. 1. c. 670. The cases are not in point. Heller v. Jentzsch. In Black v. Epstein, appellant sought to show the good reputation of defendant for honesty and fair dealing when it had not been attacked. In Bank v. Richmond, the testimony of a witness was offered to support one whose reputation had not been attacked. In Gourley v. Callahan, it was held that where defendant was asked about attempting to violate a young woman other than the plaintiff, evidence of his good character was admissible. In this case defendant took the stand and was subject to impeachment like any other witness. Evidence that his reputation for honesty and fair dealing was bad had a direct bearing upon the credit the jury should give to his testimony as a witness. The evidence was properly admitted. [Pioneer Stock Powder Co. v. Goodman, 201 S. W. (Mo. App.) 576 and cases cited; Williamson v. McElvain, 199 S. W. (Mo. App.) 567.] XII. It is our conclusion that the case was well tried and that the record before us is free from reversible error. The judgment is affirmed. Walker, J., concurs; White, J., concurs in result and in all except Paragraph I. WILLIAM HELLER v. AUGUST JENTZSCH, AUGUST JENTZSCH, Appellant, v. WILLIAM Division Two, April 7, 1924. 1. SPECIFIC PERFORMANCE: Oral Contract: Part Payment. If the parties orally agreed upon the terms of sale, and the vendor put the vendee in possession of the land in pursuance to the agreement, the vendee at the same time paying a part of the agreed purchase price, those things, nothing further appearing, take the transaction out of the operation of the Statute of Frauds, and entitle the vendee to specific performance. 2. : Terms: Character of Proof. To authorize a decree compelling the specific performance of a contract to sell land, the agreement must be clear and unequivocal in its terms; and Heller v. Jentzsch. where the contract was oral the evidence to prove its terms must be clear, cogent and convincing, so as to leave no reasonable doubt that the contract in the terms alleged was agreed upon. Where the defendant was the sole owner of three tracts and an undivided interest, with his four brothers and sisters, in a fourth tract, and the petition alleges and the plaintiff testifies that defendant orally agreed to convey his interest in the three tracts and the entire interest of himself and of his brothers and sisters in the fourth tract, and defendant testifies that the agreement was that he was to convey only his own interest in the four tracts, and the preponderance of the evidence was against plaintiff's version of the contract, specific performance cannot be decreed. 3. UNLAWFUL DETAINER: Injunction: Adequate Defense at Law. Whatever may be the merits of an action of unlawful detainer, the defendant has an adequate remedy at law in defending it, and is not entitled to an injunction to enjoin its prosecution. 4. 5. 6. -: Finding By Trial Court. The trial court, sitting as a jury in an unlawful detainer suit and rendering judgment for plaintiff, must be presumed to have found every fact warranted by the evidence and necessary to sustain its judgment for plaintiff. Whatever version of the arrangement between the plaintiff and defendant by which the defendant went into possession that would support the judgment, is presumed to have been found as a fact by the trial court. : Misunderstanding: Right to Possession: Tenant at Will. Where the plaintiff agreed to sell the land, and upon payment of one hundred dollars of the purchase price, put defendant into possession, and the contract of sale was so indefinite in terms that it cannot be enforced, and they so misunderstood each other that their minds never met on its terms, then the defendant went into and remained in possession through mutual mistake, which is not inconsistent with good faith, but he remained in possession under a void contract, and therefore as a tenant at will, and the relation of landlord and tenant is implied. If there was a total misunderstanding, the interest of the defendant, after discovery of the misunderstanding, was "created by livery and seizin only" under the statute (Sec. 2167, R. S. 1919), and he was likewise a tenant at will, or if not that a tenant at sufferance only. In neither case is he entitled to retain possession indefinitely. Tenant at Will: Notice: Contractual Relation: Repudiation. A tenancy at will of farm lands is construed to be a tenancy from year to year, and if the tenant chooses to continue the relation sixty days' notice to quit is required; but one in possession, whether as tenant or vendee, under an executory contract of pur |