Martin v. Printz. dence, does not conflict with the rule that obligations of written contract may be waived by conduct of the parties occurring after its execution. Riley v. Insurance Co., 117 Mo. App. 229. (4) An oral contract for the sale of land, which has been completely executed, is not within the Statutes of Frauds, and a written contract may be abrogated by a subsequent verbal agreement entered into between the same parties. See v. Mallonee, 107 Mo. App. 721. (5) Plaintiff did not plead the Statute of Frauds in his reply to defendant' answer. And to be available as a defense in a court of record, the Statute of Frauds must be pleaded. Hackworth v. Zeitinger, 48 Mo. App. 32; Bless v. Jenkins, 129 Mo. 647. (6) Where a contract which the Statute of Frauds requires to be proved by writing has been clearly shown to have been fully performed, the performance takes it out of the operation of the statute. Maupin v. Railroad, 171 Mo. 187; Hall v. Harris, 145 Mo. 614. (7) It is immaterial that said Printz had no written agreement with said Martin, authorizing defendant to consummate the sale of the real property from Milentz et al. to said Martin, as defendant was acting merely as agent for plaintiff. Bird v. Blackwell, 135 Mo. App. 23. Wyrick & Eaken for respondent. The instrument sued upon was a sufficient writing to bring it within the requirements of a contract. It was a complete expression of the intent of the parties and was not a mere receipt. The contract need be signed only by the party to be charged. Ivory v. Murphy, 36 Mo. 534; Cunningham v. Williams, 43 Mo. App. 629; Smith v. Wilson, 160 Mo. 467. The memorandum must state the contract with reasonable certainty so that its essential terms can be ascertained from the writing itself without resort to parol evidence. Ringer v. Holtzclaw, 112 Mo. 519; Kelly v. Thuey, 143 Mo. 422. Martin v. Printz. The note or memorandum must contain the whole agreement. Rucker v. Harrington, 52 Mo. App. 481; Leesly Bros. v. Fruit Co., 162 Mo. App. 195. ALLEN, J.-Plaintiff instituted this action for the recovery of $1000 alleged to have been received by defendant from plaintiff for the purpose of purchasing for the latter a deed of trust upon property in the city of St. Louis, and for which the defendant executed the following receipt: "St. Louis, June 3, 1908. Received of Oscar Martin One Thousand and no/100 Dollars, to be placed on first deed of trust 5 per cent loan in Dixie Place, for 3 years. "1000 ARTHUR G. PRINTZ." Plaintiff in his petition avers that defendant failed to so invest the money, and refused to repay the same to plaintiff. The answer admits the execution of the receipt, but avers that, at plaintiff's instance and request, the money was used by defendant for plaintiff in part payment of the purchase price of a house and lot in the city of St. Louis. The defendant is a real estate agent in the city of St. Louis; and plaintiff, who is a cousin of the defendant, placed in the latter's hands $1000 on or about June 3, 1908, for which defendant executed the receipt above set out. Plaintiff's testimony in chief went to show that defendant did not apply the money as agreed, and had ever refused to repay the same to plaintiff. And plaintiff denied that he had given defendant authority to otherwise invest the money. On behalf of defendant it was sought to show that after the money had been placed in the defendant's hands it was agreed, and plaintiff directed, that it be used in the purchase of a house and lot; that the same was done, and a warranty deed to the property executed to plaintiff on February 1, 1909; and that plain Martin v. Printz. tiff, on the last-mentioned date, executed a note for $1200 and six semi-annual interest notes, together with a deed of trust securing such notes, in order to complete the purchase of such property. Plaintiff, on cross-examination, admitted the execution of the notes, but denied having signed the deed of trust and claimed that if the title to the property was acquired in his name it was done without his knowledge or consent. Defendant, as a witness in his own behalf, undertook to testify to the alleged subsequent agreement regarding the disposition of the money and plaintiff's directions in the premises, and to introduce in evidence the warranty deed and deed of trust above mentioned. The court, however, sustained objections to the admission of substantially all of the evidence thus sought to be introduced in support of the defense set up by the answer. It is unnecessary to refer to these rulings in detail. It is sufficient to say that the court excluded practically everything offered in support of this defense. The defendant thereupon rested; and, judgment going for plaintiff, defendant has brought the matter here for review. ་ Respondent's argument appears to be that the receipt constituted a written contract between the parties which could not be varied by parol. But there is clearly no merit in this. The receipt is not a written contract, though as a memorandum it constitutes evidence of the original oral agreement between the parties, subject, however, to explanation by parol testimony. Neither was the contract itself one required to be in writing under the Statute of Frauds, for it constituted a mere agreement as to what disposition the defendant was to make of plaintiff's money, acting as the latter's agent. And had the original contract been in writing, it could be varied or altered by a subsequent parol agreement between the parties. It is said that plaintiff did not plead, or offer to prove, compliance with the original contract. This is La Rue v. Kempf. quite true; but defendant did plead, and sought to show, that the original agreement had been subsequently modified by the parties, in accordance with which defendant acted in investing plaintiff's money. This, if true, is a complete defense to plaintiff's claim. And the defendant was entitled to introduce the evidence brought forward by him to substantiate this defense, and which tended very strongly to support it. It was plainly error for the court to exclude this evidence. But respondent urges that, as the case was tried without a jury and no findings of fact were made and no declarations of law requested or given, the judgment should be affirmed, unless it is so manifestly erroneous that it cannot be sustained upon any theory supported by the evidence. This is true, where no reversible error of law intervenes below. Here it is quite clear that reversible error was committed in the exclusion of evidence, whereby a perfectly valid defense sought to be introduced was altogether ruled out of the case and excluded from consideration. The judgment must be reversed, and the cause remanded. It is so ordered. Reynolds, P. J., and Nortoni, J., concur. ALICE LA RUE, Appellant, v. PAUL KEMPF, Respondent. St. Louis Court of Appeals, December 8, 1914. 1. DIVORCE: Parent and Child: Liability of Father for Support of Child. In the absence of a provision made for the support of minor children, the father continues primarily liable therefor after divorce, and the mother, having their custody, may ordinarily recover from him for their maintenance, if he fails or refuses to furnish it; but where, in connection with the divorce proceedings, a settlement is made, whereby the father 2. La Rue v. Kempf. makes provision for the future support of the minor children, which is accepted by the mother as satisfactory, he is no longer liable, in an action by her, for support furnished them by her, whatever liability may otherwise continue to attach to him, growing out of his legal duty to provide for his offspring. : : Defenses. In an action by a divorced wife to recover from her former husband for the support of their minor children, whose custody had been awarded to her, the fact that he had repeatedly offered to take the children himself and support them was no defense to the action; her refusal to permit him to take them not justifying his refusal to provide for their maintenance. 3. APPELLATE PRACTICE: Harmless Error. The giving of erroneous instructions and the erroneous admission of evidence is innocuous, where, under the evidence, the court should have directed a verdict for the party in whose favor such errors were committed. 4. RES ADJUDICATA: Issues Concluded: Action on Same Demand: Action on Different Demand. There is a difference between the effect of a judgment as a bar or estoppel against the prosecution of a second action upon the same claim or demand and its effect as an estoppel in another action between the same parties upon a different claim or cause of action. In the former case, the judgment, if rendered upon the merits, constitutes an absolute bar to a subsequent action, concluding the parties and those in privity with them, not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose. But where the second action between the same parties is upon a different claim or demand, the judgment in the prior action operates as an estoppel only as to those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered. 5. 6. 7. -: Rationale of Doctrine. The doctrine of res adjudicata proceeds upon the theory, on the one hand, that it is to the interest of the State that there should be an end to litigation, and, on the other hand, that the individual should not be twice vexed for the same cause. : Matters Determined: Parol Evidence. Where the record, in a former action, does not show what questions were determined therein, that fact may be shown by extrinsic parol evidence. :Issues Concluded: Facts Stated. In an action by a divorced wife, who had been awarded the custody of the minor |