text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Plaintiff-Appellant, v. KING BROTHERS MOTEL, INC., a Corporation, et al., On Exception of Edward J. Keller and Emma J. Keller, Defendants-Respondents.
    No. 31510.
    St. Louis Court of Appeals. Missouri.
    March 16, 1965.

      Robert L. Hyder, Jefferson City, Samuel C. Ebling, Kirkwood, for plaintiff-appellant.
    Husch, Eppenberger, Donohue, Elson & Cornfeld, Carroll J. Donohue, Myron Gol-lub, St. Louis, for defendants-respondents.
   DOERNER, Commissioner.

This appeal recently came to the writer by a reassignment. By this action the State Highway-Commission condemned right-of-way for the improvement of U.S. Highway 40TR, otherwise known as the Daniel Boone Expressway, from Lindbergh Boulevard east to Brentwood Boulevard in the County of St. Louis. Both the plaintiff and the Kellers, the landowners here involved, filed exceptions to the Commissioner’s report and the-cause was tried to a jury. From a verdict and judgment in favor of the defendants for $16,000 the plaintiff appealed. Since the plaintiff admitted a minimum damage of $2350 the amount in dispute, exclusive of costs, is $13,650, and we therefore have jurisdiction. State ex rel. Burcham v. Drainage District No. 25, Mo., 271 S.W.2d 525.

The property affected by the appropriation consisted of an irregularly shaped lot containing one acre, described as Lot No. 1 in Daniel Boone Subdivision, in the City of Ladue. The improvement thereon consisted of a ranch type residence built of Roman brick, 100 feet in length, containing a living room, dining room, family room, kitchen, three bedrooms, two baths, and an attached garage. The house faced approximately northeast. The surrounding neighborhood was composed of single family, high quality type homes of substantial'value. Prior to the changes made by plaintiff the property was bounded on the north by a ramp running from Route 40 (an east-west highway) to McKnight Road; on the east by McKnight Road; and on the south and west by adjoining tracts. Thus it was located on the southwest corner of the ramp and McKnight Road, and had a large expanse of rolling, landscaped ground to the south and west. In general, the changes made by plaintiff in the immediate vicinity of defendants’ property consisted of widening Route 40; building a new ramp, on a higher grade than the old; widening McKnight Road; and constructing a reversed “S” outer roadway 30 feet wide through defendants’ lot, starting at the southwest corner thereof and emerging on McKnight Road at about the middle of the south property line. Three separate portions of defendants’ land were taken, totalling .21 of an acre, and a triangular piece of ground of .19 of an acre was separated from the rest by the newly built outer roadway. Plaintiff deeded to defendants an area of .16 of an acre on the north, and defendants eventually sold the separated parcel of .19 of an acre to a neighbor for $600. Plaintiff also condemned temporary construction easements 10 feet wide on either side of the outer roadway and as much as 30 feet wide along part of the east property line, for the use of construction machinery and equipment. As a result of the changes made defendants’ property is now an island, surrounded on all four sides by roadways.

Plaintiff asserts that the court erred in the admission of certain evidence, in the giving of Instruction No. 3, and that the verdict of the jury is excessive.

Defendants called as their witness one Stuart M. Mertz, and qualified him as a professional landscape architect. Mertz testified that he had examined plaintiff’s property before work began, as well as afterwards, and was familiar with the trees and shrubs located on the land appropriated. He was asked by defendants’ counsel whether he had an opinion as to the reasonable market value of such trees and shrubs, and after he replied that he did, was asked to state it. Plaintiff objected on the ground that the market value of the trees and shrubs could only be reflected in the total value of the property before and after the taking and could not be evaluated independently of the entire property. The court overruled the objection and Mertz then gave his opinion of the reasonable market value of the various trees and shrubs. Plaintiff contends that the court erred in admitting such evidence, “ * * * for the reason that growing trees and shrubs cannot be valued separately and apart from the land upon which they grow.” This assignment overlooks the distinction between the award by the jury and the evidence which may be introduced for the jury’s consideration in making the award. Of course, the jury may not return separate awards for land, for the improvements thereon, for fixtures, or for other elements which may enter into the overall value of the realty. But where it is established that the land was enhanced in value by reason of the addition thereon of buildings, fixtures and other improvements, evidence of the separate value of the land and such additions is admissible. State of Mo. ex rel. State Highway Commission of Missouri v. Dockery, Mo., 300 S.W.2d 444; City of St. Louis v. Turner, 331 Mo. 834, 55 S.W.2d 942; City of St. Louis v. Rossi, 333 Mo. 1092, 64 S.W.2d 600. There is no logical reason why the same principle should not apply to trees and shrubs which are shown, as in this case, to have enhanced the value of residential property, and the authorities hold that such evidence is admissible. 4 Nichols on Eminent Domain, 3rd Ed., Sec. 13.21, pp. 406, 407 ; 2 Lewis On Eminent Domain, 3rd Ed., Sec. 724, p. 1267 ; 29 CJ.S. Eminent Domain § 173, p. 1042; 18 Amer.Jur., Eminent Domain, Sec. 343, p. 986.

Over plaintiff’s objections defendant Keller was permitted to state that there was traffic on the newly constructed outer roadway, of service trucks and people who live in the adjoining subdivision, which was constant day and night; that the lights of vehicles using the road swung across the west end of his house containing the bedrooms, as they made the curve, and that at times there was a tremendous amount of noise, and at odd hours, such as emergency brakes, sirens, trucks, and “hot-rod” automobiles. Witness Mertz was also permitted to testify that one of the reasons for his recommendations that a stone wall be built along the outer roadway and that shrubs be planted along the top, was to obtain privacy and screen out the traffic. Plaintiff contends that the evidence as to traffic, noise and car lights “are items of general damage shared by the entire public and were not shown to be special damages to the Respondent”; and that it was therefore prejudicial error to admit such evidence. If the noise of heavy traffic on a highway constructed through residential property, within 35 feet of the owner’s home, where none existed before, diminishes the value of the portion of the land not taken by the condemnation; and if it is the law that “ * * * anything which is directly injurious to such capability or special adaptation for a particular use, and thereby affects the market value of the property, is therefore competent to be shown as a legitimate factor in bringing about the total damage sustained for which it is contemplated that the owner shall receive just compensation,” City of St. Louis v. Paramount Shoe Mfg. Co., 237 Mo.App. 200, 168 S.W.2d 149, 153, quoted with approval in State ex rel. State Highway Commission v. Bruening, Mo., 326 S.W.2d 305, then it would seem that such evidence should be admissible. But in State Highway Commission, State ex rel. v. Turk, Mo., 366 S.W.2d 420, 421, it was held' that the amount of noise on the highway is not a proper element to be taken into consideration in arriving at the damage resulting from the condemnation of land for State highway uses. We must therefore agree with plaintiff that the court erred in admitting evidence as to the factors of traffic and noise on the outer roadway. However, by Instruction No. 4, given at the request of the plaintiff, the court instructed the jury that it should not consider the amount of increased traffic or the noise resulting therefrom as elements of damage reducing the reasonable market value of the defendants’ remaining property. We are of the opinion that by this instruction the court effectively removed whatever prejudice may have resulted from the erroneous admission of the evidence as to traffic and noise. As to the headlights which shone into defendants’ bedrooms, we cannot agree that this was an item “of general damage shared by the entire public * * Presumably plaintiff did not so consider it at the time of trial, for it did not include the item of lights with those of traffic and noise in its Instruction No. 4. Furthermore, the evidence was that the outer roadway approached the defendants’ house on a downgrade and on a curve, and so far as shown on the plats introduced in evidence it was the only house in this section of the improvement which was so situated, and the only house which would be subjected to the glare of headlights. • It cannot be said, therefore, that this was an item of general damage which was “ * * * common to the other land owners in the neighborhood * * * ” Chicago, Great Western Railroad Co. v. Kemper, 256 Mo. 279, 296, 166 S.W. 291, 295.

In the course of presenting their case the defendants were permitted to introduce evidence that after the completion of the changes made by plaintiff they expended the sum of $4100 to build a retaining wall, plant various trees and shrubs, and other items, all in an effort to restore their property to its highest adaptable use as a residence. At the close of the case and at the request of defendants the court gave Instructions Nos. 1, 2 and 3. The latter read:

“The jury is instructed that in determining the fair market value of the remainder of defendants’ property immediately after the appropriation of the property taken by plaintiff on August 23, 1960 (and including in such remainder the adjoining tract deeded to defendants by the State of Missouri), you should take into consideration all the facts in evidence relating to the condition of the said remainder which would naturally impress a reasonably prudent buyer in negotiating for the purchase of said remainder, including: (1) The destruction of trees on the land. (2) Its separation into two tracts by the roadway. (3) The effects of the position and proximity of the roadway to the house; in this connection, if you find those effects to have been such as to make necessary re-landscaping in order to minimize or overcome them, so as to restore as nearly as possible the said remainder of defendants’ property to a condition of its most advantageous previously available use, then you may take into consideration the reasonable cost and expense of such relandscaping, including planting of trees, moving of fences, construction of a retaining wall and removal and relocation of air conditioning equipment. (4) The use of the temporary construction easements on defendants’ property; in this connection you may consider all the facts and circumstances in evidence concerning such use and the damages which, at the time of the taking, could reasonably have been expected to follow and which would naturally impress a reasonably prudent buyer in negotiating for the purchase of said remainder of defendants’ property.”

Plaintiff asserts that the apparent basis for the italicized portion of the foregoing instruction is the statement in State ex rel. State Highway Commission v. Bruening, Mo., 326 S.W.2d 305, 311, that where evidence of restoration costs is introduced “ * * * A proper instruction so as to avoid any question of double damages, such as Instruction No. 3 given for plaintiff in Smith v. Kansas City, 128 Mo. 23, 30 S.W. 314, could have been given, and on retrial should be given.” Seizing upon the words, “ * * * such as Instruction No. 3 given for plaintiff in Smith v. Kansas, * * *” plaintiff contends that defendants’ Instruction No. 3 is dissimilar to Instruction No. 3 in the Smith case, and therefore erroneous, in that it does not contain any limitation on the amount of damages which the jury might award.

An examination of Instruction No. 3 in Smith reveals that it contained no words or figures of limitation. As plaintiff recognizes the limitation “ * * * not to exceed five thousand dollars ($5,000.00) * * * ” appear in Instruction No. 2 given in Smith. To understand why they may have been necessary there, and not in the instant case, requires a review of the issues and evidence present in that case. The action in Smith was to recover damages for the lowering of the grade of the street on which plaintiffs’ property abutted. The plaintiffs alleged in their petition that they had been damaged in the sum of $5,000. Their evidence was that to lower the grade of their lot and let down the improvements thereon, so as to restore the premises to the same relative height above the street as that which existed before the cut was made, would cost from $4,000 to $6,000; and that the fair market value of their property had been depreciated from $3500 to $5,000. Plaintiffs offered, and the court gave, four instructions. By No. 1 the jury was required to find that the market value of the property had been depreciated by the grading. By No. 2 it was told that if it found for plaintiffs its verdict should be for such sum, not to exceed $5,000, as it might find from the evidence would equal the amount that the market value of the property had been diminished by the act of the city. Instruction No. 3 read:

“ ‘If the jury find for the plaintiffs, in estimating the damages to said property they may take into consideration as elements of damage, with other evidence in the case, the cost, if any, necessary to grade down said property to the grade as changed by defendant, and lowering and replacing the improvements thereon, and the necessary destruction of any trees or shrubs that you may find and believe to be on said property, also of the cost, if any, of building retaining walls, if you find it necessary or proper that any be built, allowing, however, as an offset, any appreciation or increase in value of said property by reason of the grading of said street.’ ”

And the term “market value” was defined by plaintiffs’ Instruction No. 5. The defendant in that case complained that Instruction No. 3 permitted the jury, in estimating plaintiffs’ damages, to take into consideration, with the other evidence in the case, the cost of adjusting plaintiffs’ premises to the condition of the street created by defendant’s act. In rejecting the attack the court said:

“ * * * The general rule is, that when the reasonable cost of repairing the injury by restoring the premises to their former condition, as near as may be, is less than the diminution in the market value of the property by reason of the injury, such cost of restoration is the proper measure of damages. On the other hand, when the cost of restoring is more than such diminution, the latter is generally the true measure of damages, and proof of the cost of restoring the land to its former condition, and proof of the diminution in the market value are both admissible on the question of damages to be awarded for an injury thereto. * * * ”

The factual differences in the two cases are both numerous and obvious. In Smith, plaintiffs in their petition prayed for a recovery of only $5,000; so far as the record before us shows, the defendants in the instant case did not by any pleading so limit the amount they sought to recover. Of even greater importance, under the plaintiffs’ evidence in Smith, the jury might have found that the cost of restoration, $6,000, was greater than the diminution of $5,000 in the value of their property; in the case at bar, defendants’ evidence was that the cost of partial restoration, $4,100, was far less than the depreciation of $20,-100 in the fair market value of their property. Thus no words of limitation in the amount of the award were needed in the instant case for there was no possibility, as there was in Smith, that the jury might return a verdict in an amount greater than the diminution in the value of defendants’ premises.

Plaintiff also contends that the jury might have concluded from Instruction No. 3 that double damages could be awarded defendants, that is, the amount of depreciation plus the cost of partial restoration. This argument ignores both the text and the pattern of defendants’ instructions. By Instruction No. 1 the jury was plainly told that * * * the damages due defendants is the difference between the fair market value of defendants’ property immediately before and immediately after the appropriation of the property taken by plaintiff * * gy Instruction No. 2 the jury was informed that in determining the fair market value of the property immediately before the appropriation it should take into consideration all the facts in evidence “ * * * which would naturally impress a reasonably prudent buyer in negotiating for its purchase, including: The location of the property; * * *” and other specified factors. It is apparent that Instruction No. 3 followed the same pattern as that of Instruction No. 2, except that it related to the fair market value of the property immediately after the appropriation, and to those factors which would impress a reasonably prudent buyer in negotiating for the purchase of the property, including, among other factors, the cost of partial restoration. Furthermore, by defendants’ Instruction No. 4 the jury was again told that in determining defendants’ damages, “ * * * you will find the fair reasonable market value of the whole of defendants’ land as it stood on the date of appropriation August 23, 1960, and then you will find the fair reasonable market value of the portion of the defendants’ land remaining in its then condition after the appropriation, including the triangular parcel of land deeded by the State Highway Commission to the defendants on September 27, 1960, and the difference, if any, will be the damages sustained by the defendants in this proceeding. * * * ” Thus by Instruction No. 3 the jury was clearly told that it could consider the cost of restoration only as it might affect the after market value in the eyes of a prudent buyer. And in equally plain and unmistakable language the jury was told in the other instructions, for both plaintiff and defendant, that the defendants’ right of recovery was limited to the difference in fair market value immediately before and immediately after the appropriation. As the court said in Smith v. Kansas City, supra, 128 Mo. p. 32, 30 S.W. p. 316:

“Reading the instructions altogether, as they should be read, the fact that plaintiffs’ recovery is to be limited to the amount of the depreciation in the market value of the property by the injury complained of is found to be made unusually prominent by frequent reiteration, in plain and unmistakable language; and, when so read, instruction No. 3 for plaintiffs is found to be entirely consistent with that idea, and harmonious with all the other instructions in the case.”

Plaintiff’s final criticism of Instruction No. 3 is that the part regarding restoration costs “ * * * was contrary to the evidence due to the fact that there was no testimony relating or in any fashion connecting the cost of restoration to the after value of the Respondents’ property. * * ” There is no reason why such evidence was necessary. State ex rel. State Highway Commission v. Bruening, Mo., 326 S.W.2d 305, 311(6). As the court said in Smith v. Kansas City, supra, 128 Mo. p. 31, 30 S.W. p. 316:

“Such evidence is admissible, not only for the purpose of disclosing the true measure of damages, but when, as in this case, the measure disclosed is the market value of the property before and after the change of grade, to enable the jury, by a knowledge of the real situation and condition of the premises, and the expenditure necessary to make them conform to the new grade, to form a better idea of the effect of the change on its market value. Such information throws light upon, and to an intelligent jury of the vicin-age is invaluable in testing the worth of expert opinion as to, such market value.”

The concluding point in plaintiff’s brief is that the verdict of $16,000 “ * * * could only be the result of passion and prejudice on the part of the jury based upon other erroneous matters heretofore stated in this appeal” and is excessive. As we have held, there were no other erroneous matters and “ * * * nothing is added here that causes us to change our conclusion * * Jackson County v. Meyer, Mo., 356 S.W.2d 893, 899. Nor were there any incidents during the course of the trial, as was claimed in that case, which might have prejudiced the plaintiff in the eyes of the jury. In fact, counsel on both sides, as well as the court, are to be complimented on the highly professional manner in which the case was tried.

In connection with its claim of excessiveness plaintiff points out that the commissioners appointed by the court awarded defendants damages of only $10,000, and cites State ex rel. State Highway Commission v. Wright, Mo., 312 S.W.2d 70 as authority for its claim that we may consider such fact in determining whether or not this case should be retried or whether a remittitur would meet the ends of justice. Such a determination, of course, begs the initial and basic question of whether the verdict was excessive. Two expert witnesses, Barngrove and Alt, testified on behalf of defendants and two, Scott and Hallauer, on behalf of plaintiff. Barngrove’s before value was $55,000, Alt’s $57,600, Scott’s $39,700 and Hallauer’s $39,500. Barn-grove’s after value was $35,000, Alt’s $37,-500, Scott’s $36,030, and Hallauer’s $37,-150. Thus the diminution in value as found by each was Barngrove $20,000, Alt $20,-100, Scott $3670, and Hallauer $2350. It is of interest to note that the difference in the opinions of the two sets of experts related to the variation in their before values, for all of their after values are relatively close; and to note, also, that defendant Keller’s unchallenged testimony was that he had paid $46,287 for the property in August 1956, and had thereafter expended $4500 in adding air conditioning and other improvements prior to the appropriation by plaintiff. In any event, the jury’s award of damages was supported by substantial evidence and we have no valid reason to interfere with it. Jackson County v. Meyer, supra; City of St. Louis v. Vasquez, Mo., 341 S.W.2d 839; Taney County v. Addington, Mo., 304 S.W.2d 842.

The judgment should be affirmed. The Commissioner so recommends.

PER CURIAM.

The foregoing opinion by DOERNER, C., is adopted as the opinion of the court. Accordingly, judgment is affirmed.

RUDDY, P. J., WOLFE, J., and FRANK W. HAYES, Special Judge, concur.


source: Caselaw Access Project

author: SAMUEL E. SEMPLE, Special Judge.

license: Public Domain

text:
    Eileen MATHEWS, Plaintiff-Respondent, v. KNOLL ASSOCIATES, INC., a Corporation, Defendant-Appellant.
    No. 31824.
    St. Louis Court of Appeals. Missouri.
    March 16, 1965.

      Switzer, Barnes & Toney, Thomas E. Toney, Jr., St. Louis, for defendant-appellant.
    Lewis, Rice, Tucker, Allen & Chubb, Robert S. Allen, St. Louis, for plaintiff-respondent.
   SAMUEL E. SEMPLE, Special Judge.

This is an action brought by plaintiff Eileen Mathews, respondent herein, for recovery of commissions under a contract of employment between plaintiff and defendant Knoll Associates, Inc., appellant herein. The cause was tried before the court and resulted in a finding and judgment for plaintiff against defendant in the amout of $1,964.15 plus interest. From this judgment defendant has perfected an appeal to this court.

Defendant Knoll Associates, Inc., which was engaged in the business of manufacturing and selling furniture and fabrics, employed plaintiff, Miss Eileen Mathews, for the period from 1958 to December 31, 1961. During the years 1960 and 1961, Miss Mathews was employed under written contract as the Regional Manager of the business in St. Louis. In the latter part of 1961 defendant offered plaintiff a new contract for the years 1962 and 1963 which called for a lower salary and lower commissions. In December of 1961 plaintiff rejected the new contract proposed by the defendant and her employment terminated at the expiration of her contract on December 31,1961.

Miss Mathews’ contract with Knoll for the years 1960 and 1961 provided for a salary of $8,000 plus commissions based upon sales in excess of specified quotas. She was paid her salary for 1961 and was paid commissions on all sales in excess of the quota on which shipments were made by Knoll prior to December 31, 1961. Miss Mathews claimed she was entitled to commissions on additional sales obtained by her which were confirmed by Knoll in 1961, but on which the merchandise was not shipped until after December 31, 1961. The defendant received payment in full for the merchandise invoiced and shipped. The parties stipulated that the amount of commissions in dispute was $1,964.15. The basic question raised in the case is whether plaintiff earned her right to commissions on Sales obtained in 1961 even though the defendant shipped and received payment for the goods in 1962.

The pertinent portions of the written contract are as follows:

“1. Regional Managers subject to this plan will be paid a basic annual salary and commissions based upon sales.
******
“3. Commissions based upon sales will be at the rates set forth in ‘4’, will be computed in accordance with the principles set forth in ‘S’, and will be paid at the times set forth in ‘6’.
“4. Commissions based upon sales will be at the following rates:
* * * * * *
“5. Commissions based upon sales will be computed in accordance with the following principles:
“A. Sales subject to commission will be:
(a) Net sales of merchandise bearing the 71/2% commission rate credited to your territory in excess of three-fourths (¿4ths) of your territory’s quota for sales of merchandise bearing the 7%% commission rate.
******
“B.) ‘Net sales’ means invoiced shipments of merchandise less returns, allowances, credits and discounts (except cash discounts for customers’ prompt payment) and exclusive of sales or other taxes.
* * * * * *
“6. Commissions based upon sales will be paid at the following times:
* * * * * *
“9. Upon termination of Knoll’s employment of a Regional Manager, salary and commissions shall be computed to the date of termination of employment and paid within 15 days thereafter. * * * No commission or compensation whatsoever shall be paid by Knoll on account of sales made to customers on or after the date of termination even though such sales relate to orders confirmed prior to the date of termination. After termination of employment, Knoll shall have the right to continue to engage in business with any and all accounts without any liability and free from the payment of any compensation with respect thereto.”

The trial court in substance held in its findings that the contract was not clear and unambiguous and applied the rule that such a contract prepared by the defendant must be construed and interpreted adversely to the defendant on all points of ambiguity; that “The fair and reasonable interpretation of this contract is that the word ‘sales’ should be construed in accordance with its usual and ordinary meaning for the purpose of a salesman’s right to commissions * * * ”; that plaintiff was entitled to commissions on sales which were made and confirmed by defendant during the period of the contract; that the definition of net sales in Paragraph 5-B was merely to exclude the possibilities of defendant being required to pay commissions on merchandise never shipped to customer or on merchandise which wag later returned or on merchandise on which an allowance, credit or discount was granted; that the provisions of Paragraph 5-C indicating the date of crediting net sales on (he Regional Manager’s account to be the date of shipments showing on the invoice was to be properly construed as indicating in which quarter the commissions were to be paid as provided in Paragraph 6 and that it would not be just to construe this provision as making the shipment date equivalent to the sale date; that the provisions of Paragraph 9 that no commission shall be paid on sales made “to customers on or after the date of termination even though such sales relate to orders confirmed prior to the date of termination * * * ” does not refer to shipments after the date of termination but to sales made after date of termination; that the words “relate to” merely mean that the later sales have a relationship with orders confirmed and sales made prior to the date of termination.

The defendant contends that the plaintiff is precluded from receiving commissions on orders not invoiced and shipped until after the date of termination of the contract even though the orders were obtained and confirmed prior to the termination because of the specific provisions in Paragraph 9 of the contract that: “* * * No commission or compensation whatsoever shall be paid by Knoll on account of sales made to customers on or after the date of termination even though such sales relate to orders confirmed^ prior to the date of termination. * * * ” Defendant argues that the contract in clear and definite terms defines “sales” as meaning “net sales” (Section SA) which are further defined as “ * * * invoiced shipments of merchandise * * * ” (Section SB) and therefore under the specific provisions of the contract, the event which determines the earning of commissions by plaintiff is the shipment of merchandise by defendant on invoice. The defendant further argues that while in the case of the typical salesman, the taking of an order may be the com-missionable event, however, in this case, the contract in clear and unambiguous language provided that invoiced shipments of merchandise would be the event which determines the earning of commissions and that the express provision of the contract must control, citing Baldwin v. Corcoran, 320 Mo. 813, 7 S.W.2d 967; and when the language of a contract is plain there can be no construction because there is nothing to construe, Hahn v. Forest Hills Construction Co., Mo.App., 334 S.W.2d 383, 385, and cases therein cited; and that a court should not and cannot, now reformulate the contractual agreement voluntarily arrived at between the parties, Chicago R. I. & P. Ry. Co. v. Maryland Casualty Co., 8 Cir., 75 F.2d 596.

We cannot agree with defendant’s contention that the contract is so clear and unambiguous as not to require construction of its terms. The contract repeatedly uses the phrase “commissions based upon sales” (Paragraphs 1, 3, 4, and 5) and in Paragraph 9 uses the phrase “ * * * commission or compensation * * * on account of sales * * all of which refer to the payment, rates and the method of computing commissions, but there is no provision to be found in the instrument which sets out or defines what services must be done to earn a commission based on sales or when such services need be performed.

A cardinal rule of construction of a contract is that the intention of the parties must be ascertained and given effect and that such intention of the parties must be ascertained from within the four corners of the written instrument and the surrounding circumstances and conditions. Warnecke v. Rabenau’s Estate, Mo.App., 367 S.W.2d 15, 18. In this case a part of plaintiff’s duties as Regional Manager for defendant was to sell defendant’s merchandise and for her services as a saleswoman she was to be paid commissions. She had no control or responsibilities with respect to the manufacture or the filling of orders. These functions were performed by other employees of defendant.

A “sale” insofar as a salesperson is concerned is the obtaining of an order, and that is what he is employed to do and that is what he is paid commissions for doing. It has been held by this court that a salesman is entitled to a commission if he was the procuring cause of a sale. Weisels-Gerhart Real Estate Co, v. Epstein, 157 Mo.App. 101, 107, 137 S.W. 326; and that it is not essential to the right to recover a commission to show the sale was completed within the time prescribed in the contract of employment provided that it sufficiently appears that the agent initiated the transaction of purchase within the prescribed time and may therefore be regarded as the procuring cause, Cole v. Crump, 174 Mo.App. 215, 220, 221, 156 S.W. 769; and this court has also affirmed findings that a salesman was entitled to commissions on bona fide orders obtained even though in those cases the orders were not delivered. Porter v. Fickenwirth, Mo.App., 217 S.W.2d 738, and Paul E. Wolff Shirt Co. v. Sacks, 184 Mo.App. 157, 168 S.W. 641. Here the plaintiff had obtained the orders and the orders were confirmed by defendant prior to the termination of the contract and plaintiff had thus accomplished all that she had within her power to do to earn her commissions. The completion of the transaction thereafter by the defendant was not material to the question of plaintiff earning her commissions except that under the express provisions of the contract there could have been events which operated as conditions subsequent to divest her of her right to commissions, such as cancellation of the order by defendant, return of the merchandise or nonpayment by the customer. Here, under the facts stipulated, the defendant did invoice and ship the merchandise and was paid in full by the customers.

Section 5 of the contract relied on by defendant does not define “sales” referred to in Paragraphs 1, 3, 4, and 9 of the contract with reference to what plaintiff must do to earn a commission or spell out when such earned services should be performed. Section 5 enunciates principles upon which commissions based upon sales will be computed and subparagraph B thereof in defining “net sales” as meaning invoiced shipments of merchandise is a definition for the purpose of fixing the amount of sales as the basis for computing commissions. Subparagraph SC deals with crediting sales in the territory but does not refer to when the commissions are earned.

Defendant contends that the provision in Paragraph 9 that “ * * * No commission or compensation whatsoever shall be paid by Knoll on account of sales made to customers on or after the date of termination even though such sales relate to orders confirmed prior to the date of termination * * * ” clearly indicated that the word “sales” refers to something other than confirmed orders. Defendant argues that the trial court’s interpretation that the word “sales” in effect means confirmed orders and that the reference was to “supplementary sales” or “related sales” is a distortion of the clear meaning of the clause “ * * * even though such sales relate to orders confirmed prior to the date of termination * * * ” and that it creates a redundancy since the last sentence of Paragraph 9 provides for supplementary or related sales as follows: “* * * After termination of employment, Knoll shall have the right to continue to engage in business with any and all accounts without any liability and free from the payment of any compensation with respect thereto.”

These contentions of defendant cannot be sustained. The clause in Paragraph 9 does not deprive plaintiff of commissions on sales made to customers on orders obtained before the termination of the contract but does exclude commissions on sales made after the termination which “relate to orders” obtained prior to termination. In this case plaintiff makes no claim for commissions on sales which “relate to pri- or orders” but her claim is based on orders obtained in 1961 and on those orders, not on “related orders.”

Plaintiff presented evidence that much of the business was with large customers, such as architectural firms who handled large jobs and that the main volume of business for the show room such as plaintiff managed came from three or four good customers. That repeat business would come from these customers on different jobs or on the same job as the work progressed.

We believe the trial court properly construed Paragraph 9 when it found: “ * * * This provision does not refer to shipments after date of termination but to sales made after date of termination. It can only be properly construed to mean in effect supplementary sales of merchandise identical with prior sales. The words ‘relate to’ merely mean that the later sales have a relationship with orders confirmed and sales made prior to the date of termination” and the trial court properly construed the last sentence of Paragraph 9 with reference to “accounts” when it found: “The last sentence in Paragraph 9 has the function of protecting defendant from any obligation to pay commissions on sales made after termination of the contract to accounts whose interest had been aroused during the time of the contract but to whom the particular sale had not been made.”

Some of the fundamental rules of construction of a contract to be used in examining the phraseology of a particular instrument are set forth in Veatch v. Black, 363 Mo. 190, 250 S.W.2d 501, 507:

“A contract of doubtful meaning will be given a construction which will make it fair and reasonable between the parties and will not give one party an unfair advantage of another. * * * Consideration is given to the contract as a whole and the fundamental rule for construing its language is to ascertain and give effect to the intention of the parties. * * * Greater regard is given the clear intention of the parties than the particular words used in attempting to express it.”

Reading the contract as a whole it is clear that the provisions for payments of commissions based upon sales by defendant was for the purpose of encouraging plaintiff to obtain sales of defendant’s merchandise. It is also obvious that plaintiff never intended that she would perform services for which she would not receive compensation under the contract. To interpret the contract as defendant contends would deprive plaintiff of her commissions on orders which she obtained for the defendant by her own efforts made prior to the termination of the contract.

We believe that the trial court properly made a finding that: “The fair and reasonable interpretation of this contract is that the word ‘sales’ should be construed in accordance with its usual and ordinary meaning for the purpose of a salesman’s right to commissions. Apparently defendant desires to get the benefit of the salesman’s service rendered during the effective period of the contract, without having to pay the usual percentage of commissions. The contract cannot fairly be construed as giving defendant the unilateral right to determine whether there shall be payment of commission by its control of the date of shipment.”

Defendant also contends that the trial court’s construction of the contract works a substantial injustice to the defendant while giving plaintiff “a windfall” in the amount of $1,964.15. This contention is apparently based on the theory that plaintiff got a credit in 1961 for shipments of orders obtained in 1960 and thus allows plaintiff to include sales over a period greater than twelve months in determining by how much she exceeded her quota for the year. This contention is without merit. There was no continuation of employment after December 31, 1961. It can hardly be said that plaintiff would be receiving “a windfall” by receiving commissions on services plaintiff had earned by obtaining confirmed orders prior to the termination of the contract. To say otherwise would be to grant defendant “a windfall” of an additional $1,964.15 in profit on confirmed orders obtained and earned by plaintiff during the period she was employed.

The trial court correctly construed the contract. The judgment should be and is affirmed.

RUDDY, P. J., and WOLFE, J., concur.


author: BRADY, Commissioner.

text:
    Earl VENINGA, Plaintiff-Appellant, v. LIBERTY MUTUAL INSURANCE COMPANY, Defendant-Respondent.
    No. 31794.
    St. Louis Court of Appeals. Missouri.
    March 16, 1965.
    Robert T. Ebert, St. Louis, for plaintiff-appellant.
    Evans & Dixon, Ralph C. Kleinschmidt, St. Louis, for defendant-respondent.
   BRADY, Commissioner.

This is an action to compel the respondent, hereinafter referred to as the defendant, Workmen’s Compensation carrier for the plaintiff’s employer, to pay to the appellant, hereinafter referred to as the plaintiff, one-half of the trial expenses incurred by plaintiff in the trial of plaintiff’s action instituted against a third party. The trial court entered judgment in favor of defendant.

The case was submitted to the trial court on an agreed statement of facts, the material portions of which show that the defendant was the Workmen’s Compensation insurance carrier for the Mueller Erection Company. The plaintiff, an employee of the Mueller Erection Company, sustained accidental injuries arising out of his employment for said company while on the premises of the Harbison-Walker Refractories Company, Inc. As a result of this accident, the plaintiff filed a claim for Workmen’s Compensation benefits and was paid a total of $5,489.81 by the defendant for medical and disability benefits.

Some three years later the plaintiff instituted a suit against the Harbison-Walker Refractories Company, Inc. to recover damages for the personal injuries he sustained on the occasion heretofore mentioned. Some three months after this suit was filed the defendant’s claim supervisor wrote plaintiff’s attorneys as follows: “We have been advised that you have filed suit against Harbison Walker, of Fulton, Missouri, as a result of injuries sustained on or around November 12, 1957. We are the Workmen’s Compensation carrier for Mueller Erection Company, Inc. Our attorneys advise that in the event of judgment or settlement in behalf of the employee, we should expect full recovery of all expenditures we have been required to make under the Workmen’s Compensation Act of Missouri. We would like to discuss this matter further with you, and if this is possible, please contact this office at your earliest convenience.” Later the defendant’s adjuster wrote plaintiff’s attorneys a letter wherein he itemized the expenses incurred by defendant with respect to the compensation claim. There is no evidence that the defendant employed or retained plaintiff’s attorneys to represent them in regard to the recovery of these itemized expenditures nor that they employed or retained any other counsel to do so.

Prior to the trial of the third party action plaintiff’s attorneys inquired of the defendant the amount it would accept in satisfaction of its subrogation claim. The defendant took the position that since no offer of settlement by Harbison-Walker had been made, negotiations with regard to the settlement of the subrogation claim were premature. Plaintiff’s attorneys made a formal demand upon Harbison-Walker in the amount of $15,000.00 which was to represent settlement of all claims including the defendant’s subrogated interests. Upon rejection of this settlement offer the matter proceeded to trial with the resulting verdict and judgment for the defendant. That judgment has become final.

The amount with which we are here concerned arises from an after-trial demand on behalf of plaintiff that defendant reimburse plaintiff for one-half of the trial expenses incurred by plaintiff in preparation for the trial of the third party action against Har-bison-Walker.

The plaintiff contends that the defendant “* * * expressly requested plaintiff to include its interests in the pending litigation * * *” and that the law will therefore imply a promise on the part of the defendant to pay its proportionate share of the trial expenses. This contention is not pertinent to the instant case for the reason that the facts do not show the defendant expressly requested plaintiff to include its interests. We cannot read the letter from the defendant’s claim supervisor directed to the plaintiff’s attorneys as doing so. The second letter which simply itemizes the defendant’s expenditures certainly cannot be thus interpreted. The purpose of these letters was merely to place the plaintiff on notice of the defendant’s indemnity rights and to give plaintiff the amount of indemnity involved. They cannot be interpreted as doing anything more. We do not rule the question of whether an express request to include the defendant’s interests in the plaintiff’s third party action would render the defendant liable to the plaintiff for one-half of the expenses of such litigation when the result was unsuccessful. Here there was no such express request.

It is well settled that the employee or the employer may proceed j ointly or separately against a negligent third party to recover damages on account of personal injuries sustained by the employee. If they proceed separately, whichever brings the action becomes the trustee of an express trust for the benefit of the other in that portion of the recovery to which the other is entitled. O’Hanlon Reports, Inc. v. Ben Needles & Son Hauling & Exp. Co., Mo.App., 360 S.W.2d 382. The statute which governs the rights and liabilities of the employer and employee with respect to third party actions is § 287.150, RSMo 1959, V.A.M.S. Of the four subsections in that paragraph only subsections 1 and 3 are pertinent here. § 287.150, 1, supra, provides that the employer “* * * may recover any amount which such employee or his dependents would have been entitled to recover * * *” and that if the employer does so, any amount of recovery in excess of the compensation paid by the employer “ * * * after deducting the expenses of making such recovery * * * ” shall be paid to the employee or to his dependents and shall be treated as an advance payment by the employer on account of any further installments of compensation. Subsection 3 of the statute deals with the allocation of expenses when the employee makes a recovery and provides that “ * * * the employer shall pay from his share of the recovery a proportionate share of the expenses of the recovery * * Subsection 3 has been interpreted as offering an incentive for the employee to bring the third party action and if he brings the action, he may secure a greater net recovery than he will if the employer or insurer effects the recovery. Knox v. Land Construction Co., Mo.App., 345 S.W.2d 244, l. c. 248. It is therefore apparent that while either the employer or the employee has the right to bring the action seeking to effect a third party recovery and while either has the right to intervene in an action brought by the other, O’Hanlon Reports, Inc. v. Ben Needles & Son Hauling & Exp. Co., supra, neither party can force the other to bring the action. That is a matter for their separate election. The plaintiff’s cited cases do not hold otherwise nor is this court aware of any authority supporting a contrary view.

Since the § 287.150, supra, does not provide for the sharing of expenses in the event the third party action is unsuccessful, we can find no basis in the Workmen’s Compensation Act for the plaintiff’s action. Having previously found the factual situation insufficient to support any implied agreement to pay one-half the expenses based upon the defendant’s express request to include its interest in the plaintiff’s third party action, it follows the judgment should be affirmed. The Commissioner so recommends.

PER CURIAM.

The foregoing opinion by BRADY, C., is adopted as the opinion of the court. The judgment is affirmed.

RUDDY, P. J., ANDERSON, J., and FRANK D. CONNETT, Jr., Special Judge, concur.

WOLFE, J., not participating.


author: STONE, Judge.

text:
    Jean SCHRECK, Adm’x. of the Estate of Joe W. Scales, Deceased, Plaintiff-Respondent, v. William Frank PARKER, Ruby Marlene Parker, Mercantile Mortgage Company, a corporation, and Roger A. Bailey, Trustee, Defendants-Appellants. Jean SCHRECK, Adm’x. of the Estate of Joe W. Scales, Deceased, Plaintiff-Respondent, v. Joe PENERMAN and Mamie Penerman, Defendants-Appellants. Jean SCHRECK, Adm’x. of the Estate of Joe W. Scales, Deceased, Plaintiff-Respondent, v. Walter C. KLEIN and Olga H. Klein, Defendants-Appellants. Jean SCHRECK, Adm’x. of the Estate of Joe W. Scales, Deceased, Plaintiff-Respondent, v. Jimmy PEQUES and Bevador S. Peques, Defendants-Appellants. Jean SCHRECK, Adm’x. of the Estate of Joe W. Scales, Deceased, Plaintiff-Respondent, v. Willie Myrtle GOOCH, Bank of Sikeston, a corporation, R. A. Bailey, Trustee, and W. S. Corrigan, Trustee, Defendants-Appellants. Jean SCHRECK, Adm’x. of the Estate of Joe W. Scales, Deceased, Plaintiff-Respondent, v. W. O. CHAPPEL, Beulah Mae Chappel, C. E. Stauffer, and Marshall Craig, Trustee, Defendants-Appellants.
    Nos. 8324-8329.
    Springfield Court of Appeals. Missouri.
    March 17, 1965.

      Roger A. Bailey, Sikeston, Thomas L. Arnold, Benton, for defendants-appellants.
    W. Clifton Banta, Charleston, for plaintiff-respondent.
   STONE, Judge.

This opinion deals with the appeals by defendants (property owners) in six cases (here consolidated) instituted by the same plaintiff, Joe W. Scales, as the assignee of tax bills, to enforce the lien thereof against lots in Sikeston, Missouri, a city of the third class. The improvement, for which the City of Sikeston (hereinafter referred to as the city) issued these (and a multitude of similar) tax bills, was the grading, rolling and oiling of streets under Section 88.643, RSMo 1949 [repealed and substantially reenacted Laws of 1953, p. 312; amended Laws of 1959, H.B. No. 280, and renumbered as Sec. 88.811, RSMo 1959, V.A. M.S.J.

By four ordinances enacted by the city council on April 24, 1950, the city created four districts numbered 1 to 4, inclusive, each of said districts “being comprised of all of the unpaved streets within the boundaries” of the ward identified by the same number, and directed the city engineer to prepare plans, specifications and estimates of cost for “grading and oiling” designated streets. By four ordinances enacted on April 28, 1950, the city approved and adopted plans and specifications for “the improving by grading, rolling and oiling” of the designated streets in each district, authorized and directed the mayor and city clerk to enter into written contracts with National Road Builders, Inc. (hereinafter referred to as the contractor), authorized the mayor “to serve as supervising agent in charge of said improvement work,” and provided for payment by issuance of special tax bills against abutting property on the basis of sixteen cents per linear foot.

The plans and specifications, identical as to all districts except in one minor particular hereinafter noted, are summarized as follows: (1) “Streets in this program shall first be graded to the satisfaction of the city representative and then rolled with an eight ton roller to the satisfaction of said city representative.” (2) One of three designated “types of liquid asphalt,” to wit, SC-1, MC-0 or A.E.S. 1, “as desired by the city representative” was to be applied. (3) The contractor was to use a distributor with a 20-foot spray bar, equipped with a fifth-wheel tachometer, and asphalt was to be laid at a temperature of- approximately 120° F. by a pump “capable of * * * pressure from 20 to 50 pounds.” (4) The application of asphalt was to be for a width of 21 feet and at the rate of 0.4 to 0.7 gallon per square yard (except in District No. 4, where the rate was to be 0.4 to 0.8 gallon per square yard), depending upon the nature and condition of soil being dust coated. (5) All street and alley intersections were to be dust coated at no additional cost. (6) The contractor was to “protect work from traffic until ready for use” and to furnish a construction bond in the penal sum of $10,000.

Under date of May 16, 1950, the city and the contractor executed four written contracts (a separate one for the work to be done in each district) by which the contractor agreed “to grade, roll and oil the roadway” of designated streets in accordance with the plans and specifications approved and adopted by the city council. Pursuant to ordinances subsequently enacted, the city council accepted the work and, in payment therefor, tax bills (including those in suit) were issued in the name of the city and thereafter assigned to the contractor.

After the timely filing of the instant cases in June 1955, they remained pending on defendants’ motions until March 10, 1960, when those motions were overruled. In the meantime, to wit, during January 1960, the death of plaintiff Scales had been suggested to the court and, upon motion, Jean Schreck, administratrix of Scales’ estate, had been substituted as party plaintiff. V. A.M.R. Rule 52.12(a). On May 9, 1960, defendants filed their answers in which they alleged that the tax bills in suit were void because (a) the city council “was not regularly in session when the three ordinances upon which [the tax bills were] based were passed,” (b) “the tax bill ordinance was based upon a fictitious approval of the work,” (c) “the contractor did not do the work as required by the contracts] and specifications,” and (d) the tax bills were “fraudulently procured.” On July 14, 1961, the regular judge disqualified on his own motion and a special judge was appointed.

On August 11, 1961, defendants filed their motions to dismiss “for failure to prosecute to a conclusion within a reasonable time.” The motions pleaded no fact other than that the cases had been “on the docket for more than five years.” No hearing was had, and no evidence was offered, on the motions; and on December 19, 1962, they were overruled. One of the points here urged is that the trial judge erred in denial of these motions to dismiss. Of course, a trial court has the inherent power to dismiss for failure to prosecute with due diligence. However, whether any given ease should be dismissed for want of prosecution does not depend solely upon the length of time during which the case has been pending [17 Am.Jur., Dismissal, etc., § 77, l.c. 152] but must be determined, in the exercise of a sound judicial discretion, upon all of the facts and circumstances of that particular action. Levee Dist. No. 4 of Dunklin County v. Small, Mo.App., 281 S.W.2d 614, 618(12); 27 C.J.S. Dismissal & Nonsuit § 65(2), l.c. 435, 437. With the presumption always being that the decision of the trial court was correct and the burden always resting upon appellants to make an affirmative showing of error as a condition precedent to reversal, and with no evidence whatever as to who was responsible for, or as to what caused, the delay in the instant cases, we may not convict the trial court of error in overruling motions to dismiss for failure to prosecute.

On July 17, 1963, the cases were tried and taken under advisement; and, on December 26, 1963, the court in each case made a general finding for plaintiff and then entered judgment that the principal of and interest on the tax bill in suit and the court costs were “to be levied on and made out of the property charged with the lien of said special tax bill” and specifically described in the judgment. Defendants-appellants here complain that the trial court “erred in granting a judgment in personam against the defendants in each case.” True, judgments in suits for the collection of local assessments and special benefits are judgments in rem, not in personam, and can be only for the enforcing of a lien against the particular property assessed. Schwab v. City of St. Louis, 310 Mo. 116, 142, 274 S.W. 1058, 1066(12); City of St. Louis to Use of Bruennell v. Bressler, 56 Mo. 350, 351(2). But, on this point, counsel for instant plaintiff replies that the judgments under scrutiny are judgments in rem which “may be satisfied only out of the property charged with the lien”; and, without burdening this opinion by including one of the judgments in haec verba, suffice it to say that we are of the same mind as to the import, meaning and effect of these judgments. Robinson v. Levy, 217 Mo. 498, 520-521, 117 S.W. 577, 584(10). Another of defendants’ points is that “the ordinances authorizing the contracts for the work to be done and the issuance of tax bills therefor were not passed at a regular meeting, a special meeting, or at a regularly adjourned meeting of the city council and therefore were void.” One of defendants’ attorneys vigorously pressed the same point on precisely the same evidence in a previous suit upon another tax bill issued pursuant to the same ordinances; and we there carefully considered, exhaustively discussed, and plainly ruled this point adversely to the defendants in that case. Scales v. Butler, Mo.App., 323 S.W.2d 25, 27-29. No effort now is made to demonstrate error in that holding. Rather, it simply is ignored. In these circumstances, the same point neither requires nor deserves repetition and reiteration of what we previously recorded as to the relevant facts and wrote as to the applicable law.

All of the other points (five in number) in defendants’ brief are directed to a single issue, namely, whether the contractor substantially •performed the work in accordance with the plans and specifications adopted by the city council and by reference embodied in the written contracts between the city and the contractor. If there was such substantial performance, the tax bills issued in payment for the work are valid. If there was a failure of substantial performance, the tax bills are invalid. In this inquiry, we must remain mindful that deviations from the plans and specifications justify and permit a finding of failure of substantial performance only when (1) the general character or location of the improvement has been changed materially, (2) an undue advantage to the contractor has resulted, (3) a fraud has been worked on the public, or (4) the value or appearance of the abutting property has been injured.

The specifications and the language of the contracts (i. e., “to grade, roll and oil the roadway” of designated streets) indicate that substantial performance by the contractor involved work in three ¿areas, to wit, grading, rolling and oiling. And, with instant defendants charging that there was a- want of substantial performance in each area, we treat of those areas seriatim.

Of grading. The first specification was that “streets in this program shall first be graded to the satisfaction of the city representative.” Defendants do not contend that the streets were not graded to the satisfaction of the city representative. But their complaint is that, whereas the contractual obligation to grade rested upon the contractor, the grading actually was done by employees of the city using a grader owned by the city, and that thereby the contractor obtained an undue advantage and a fraud was worked on the public. Plaintiff’s witnesses, namely, witness O’Leary who had been the contractor’s superintendent in charge of the project under discussion and witness Wilson who had been the “working foreman” on the job, frankly conceded that the grading had been done by city employees using a city-owned grader. Superintendent O’Leary then explained that Mayor Cravens, who had been authorized by ordinance “to serve as supervising agent [for the city] in charge of said improvement work,” had told O’Leary that the city had a couple of road graders and the contractor “didn’t have one there”; that “some gas company” would be laying “a lot of pipe up and down” some of the streets soon after they were oiled; and that, if the contractor would “go back and shoot [reoil} over where they put these pipes in,” the city would do the grading. So, as O’Leary put it, “I made that trade with the mayor * *

Defendants’ argument runs along the line that this oral arrangement to trade work (a) resulted in “a substantial advantage” to the contractor because the latter thereby found it unnecessary to purchase or lease a grader (however it was not shown whether the contractor had one located elsewhere) and to pay workmen for the operation thereof, and (b) worked a fraud on the public because the city’s equipment had been purchased, and the city’s employees were paid, out of public funds collected from taxpayers. It is true that, as defendants emphasize, a contract with a municipal corporation “shall be in writing and dated when made, and shall be subscribed by the parties thereto, or their agents authorized by law and duly appointed and authorized in writing” [V.A.M.S. § 432.070] and that the written contracts between the city and the contractor executed on May 16, 19S0, could not have been modified or changed by any oral arrangement between the mayor and the contractor’s; superintendent. United Const. Co. v. City of St. Louis, 334 Mo. 1006, 1021, 69 S.W.2d 639, 645-646(6). However, although the oral arrangement to trade work undoubtedly could not have been enforced, it apparently was carried out.

Since subletting was not proscribed either by the written contracts between the city and the contractor or by the ordinances authorizing execution of those contracts, it would not have been unlawful for the contractor to have sublet the grading. On the other hand, it was not unlawful for the city to grade its own streets. V.A.M.S. § 88.507; Proper v. City of Independence, Mo.App., 328 S.W.2d 55, 58. Accordingly, whether the trading of work between the city and the contractor, in fact, resulted in substantial advantage to the contractor or worked a fraud on the public depended upon whether the fair and reasonable monetary cost or value of the work done by the contractor (in exchange for the grading) equaled or exceeded the fair and reasonable monetary cost or value of the grading. The only evidence bearing upon this subject was the single statement by superintendent O’Leary that the contractor spent “twenty days catching up on this gas company deal * * But there was no evidence as to (a) the equipment used by either the city or the contractor on the work traded, (b) the length of time such equipment was used on that work, (c) the reasonable value of the use of such equipment, (d) the number of persons employed by either the city or the contractor on the work traded, (e) the number of man-hours such employees of the city or the contractor were occupied on that work, or (f) the wages paid to such employees on that work. In fine, the record affords no basis for even an informed guess as to the relative monetary cost or value of the grading or of the work done by the contractor in trade therefor.

There was no evidence that the streets were not graded to the satisfaction of the city representative; and for aught that appears in the record, which we must take as it comes to us [Bennett v. Wood, Mo., 239 S.W.2d 325, 327(2); Garrard v. State Dept. of Public Health & Welfare, Mo.App., 375 S.W.2d 582, 586(3)], no one was in any wise prejudiced by the trading of work between the city and the contractor [Brick & Terra Cotta Co. v. Hull, 49 Mo.App. 433, 442(3)] and the benefits conferred and the burdens imposed upon instant defendants were to no extent affected by such trading of work. In re Mayden, 156 Iowa 157, 135 N.W. 571, 572. Having in mind that the tax bills themselves were “prima facie evidence of the liability of the property charged therewith to the extent and amount therein specified” [Sec. 88.643, RSMo 1949] and that the burden of proving their invalidity rested on the defendants, as the parties attacking them, we are unable to find a failure of substantial performance in the grading.

Of rolling. The second requirement was that, after grading, the streets were to be “rolled with an eight ton roller to the satisfaction of said city representative.” The evidence on this subject ran the entire scale from strict performance to no performance. At one end of the scale, plaintiff’s witnesses, namely, superintendent O’Leary, foreman Wilson, and Stout, who operated the roller (none of whom were in the contractor’s employ at the time of trial), testified positively that a 5-8 ton Gabon roller was (as-O’Leary put it) “on the job from the time it started until it was finished and worked every day” and that no street was oiled until it had been rolled. At the other end of the scale, defendants’ witness Abies, the city street commissioner at the time of the improvement but retired at the time of trial, said that he had never seen a roller on the job and that none of the streets had been rolled. In the intervening range, other defendants’ witnesses, property owners on some of the oiled streets, offered such state-xnents as “if it [Broadway] was rolled, I didn’t see it; I don’t know, of course, I work,” and “there was no roller used to my knowledge.” But defendants’ witness Harrison, an engineer who on behalf of the city “worked up the plans and specifications for the oiling” and subsequently was employed as city engineer for a brief period, conceded that all of the streets he had “accepted” during his period of employment (the names or number of those streets not being given) had been rolled.

With no specific findings of fact requested or made, the factual issue as to whether or not the streets had been rolled was ruled against defendants by the general finding and judgment for plaintiff. And although we independently consider the evidence and reach our own conclusions, we remain mindful of the superior opportunity of the trial court to judge of “the credibility and characteristics of the witnesses who testified before him,” and we defer to the findings of the trial court upon salient factual issues where the evidence thereon is in irreconcilable conflict and the determination thereof necessarily must rest upon the credibility of the witnesses and the weight to be accorded to their testimony. Viewing the evidence in the light of these applicable principles, we do not find a failure of substantial performance in the rolling.

Of oiling. Defendants also complain (a) that at some points “less than the minimum amount of oil required was applied” and (b) that the contractor failed to protect the finished work from traffic. Defendants’ evidence as to the amount of oil applied to the streets came from witness Harrison, the city engineer for a brief period, and from witness Alt, a “district foreman with the Highway Department” who lived on Broadway, one of the oiled streets. Harrison said that he “was supposed to supervise the work” but that he had “quit” before the project had been completed. When asked what he had done “in the way of checking or * * * supervising,” Harrison’s reply was that “for one thing I would go to the railroad station to find out how many gallons [there were] in a tank car of oil [and] would see how many square feet or square yards that tank car covered.” “Up to a certain point” he checked “to see how many tank cars came in.” But, although he did not give the number of square yards oiled before he quit and could not state the number of tank cars that arrived, he was asked “whether the amount was adequate or insufficient” and answered without objection “insufficient.” On cross-examination, Harrison stated that “I know on some streets he [superintendent O’Leary] put less than four [0.4 gallon per square yard] and on some streets put more than four,” the only basis for that “knowledge” being (so Harrison said) that “I heard him [O’Leary] talking about how many square yards he had.” In determining the credibility of this witness and the weight and value to be given to his testimony, the trial judge also had for consideration other testimony by Harrison, such as (1) that, in response to the inquiry on direct examination, as to whether he could “tell us the amount of oil or asphalt applied * * *, the number of gallons per square yard,” Harrison conceded “no, I can’t,” and (2) that, upon trial of a prior case, he had agreed that, before he quit as city engineer, the only street he could recall “that didn’t comply with the specifications” was Pine Street, although upon trial of the instant case he said that he had accepted only “forty or fifty per cent” of the streets (none of which he could identify by name) oiled while he was city engineer.

Witness Alt, an interested and willing, if not eager, participant in the trial, “measured the front of Broadway when they first shot [oiled] it — that’s when I found out that we got a light shot.” Alt also said (as did another witness) that “a part” of Illinois Street “wasn’t even shot.” But, as with Harrison, the trial judge might have been influenced, in determining the credibility of witness Alt and the weight and value to be accorded to his testimony, by other statements of Alt. For example, at one point in his testimony Alt commented that the specifications “strictly said to shoot at seven-tenths [0.7 gallon per square yard] and it was not [so] shot,” whereas the specifications actually provided for application at the rate of 0.4 to 0.7 gallon per square yard, except in District No. 4 where the rate was 0.4 to 0.8 gallon per square yard. Again, when Alt’s attention first was directed to the three types of liquid asphalt designated in the specifications, to wit, SC-1, MC-0 and A.E.S. 1, he glibly professed to have knowledge of, and to have worked with, each of the designated “formulas.” But when subsequently interrogated as to how A.E.S. I penetrated into loose sand, Alt answered “I never did use any of it.” And when recalled in surrebuttal, Alt returned to his profession of familiarity with A.E.S. 1 and described it as “high setting asphalt and we used it for sealing and it will cure hard in three hours,” only to admit eventually, when pressed by both the court and. opposing counsel, that he had been talking about some other formula (similar, so Alt thought) : “it [A.E.S. 1] ain’t that number in our book here; I’ve got a perfect asphalt book in the car”-™" * * * so far I haven’t located it [A.E.S. 1] in this asphalt book and I don’t know of any other.”

Plaintiff’s evidence as to the amount of oil applied came from superintendent O’Leary, who said that employees had been directed to apply the oil “at a minimum” of 0.5 gallon per square yard and that 28 tank cars of oil had been used on this project, and from foreman Wilson, who stated that the oil had been applied at 0.5 gallon per square yard “straight run down the street” and that the rate of application had been no lower than that on any street. Under the same principles hereinbefore discussed in connection with the evidence pertaining to rolling (see cases cited in footnotes 10, 11 and 12), we do not find a failure of substantial performance with respect to the amount of oil applied to the streets.

Many witnesses touched upon the alleged failure of the contractor to protect the streets from traffic after oiling. Plaintiff’s evidence was that, in attempting to close freshly-oiled streets to traffic, the contractor had used (I) wooden barricades — “all we [the contractor] had and all the city had,” (2) flares — -“during the course of that work in town we got rid of a gross of flares * * * busted, run over and removed,” and (3) binder twine or small rope with red streamers tied to it — “we tried to put as much as seven or eight” streamers on the twine or rope tied across a street. But the fair import of the evidence of both parties was that, notwithstanding the contractor’s earnest endeavor to keep traffic off freshly-oiled streets for at least seven, or eight hours, drivers frequently and repeatedly ignored the warnings and broke the barriers. To repair the damage thus done by premature vehicular use after oiling, many streets were reoiled by the contractor.

Furthermore, the picture portrayed by the record in its entirety is that the A.E.S. 1 type of oil applied to the streets was an emulsion (i. e., oil “out back with water”), did not penetrate well in the sandy streets prevalent in Sikeston, and formed a crust on the surface which, under vehicular traffic, was tracked away on tires or broken down into ruts, regardless of whether there had been premature vehicular use after oiling. Having in mind the factors herein-before listed, which will permit a finding of failure of substantial performance (see cases cited in footnote 6), we are unable to say that there was a failure of substantial performance of the contractor’s duty to protect the streets from traffic after oiling.

Looking at the project as a whole, we are not unmindful that, although the purpose of the project was (in the words of defendants’ witness Harrison) “to keep down dust” through the Summer of 1950, the streets began to get dusty within a relatively short time (some witnesses said within two weeks after oiling) and the surface of some streets became so rough that the city found it necessary to regrade within a month or so. However, it is reasonably inferable that this resulted from frailties and deficiencies in the specifications themselves (notably, that use of the A.E.S. 1 type of oil was permitted by the specifications and directed by the city representative, and that vehicular traffic between rolling and oiling of streets was not prohibited), rather than from a failure on the part of the contractor to do the work in substantial compliance with the specifications. If, as we believe and hold, the contractor substantially complied with the obligations imposed by the contracts and by the specifications incorporated therein by reference, the contractor was entitled to be paid and the tax bills are valid even though the extent and duration of the benefits derived from the project fell short of those anticipated or desired. City of Webster Groves to Use of Lafayette South Side Bank v. Reber, Mo.App., 226 S.W. 77, 80 (7); City Trust Co. v. Cunningham, Mo.App., 7 S.W.2d 456, 459(6).

Courts approach cases of this character in “a spirit of friendliness to [the] improvements, contracts, ordinances, and laws (that is, assuming that they are legal and just until the contrary appears)” and not with “a frosty attitude, searching as with a lighted candle for technicalities, inadvertences, and minor defects, not of substance, and assigning them an office in overturning an improvement scheme and defeating the collection of tax bills.” Gist v. Rackliffe-Gibson Const. Co., 224 Mo. 369, 380, 123 S.W. 921, 924; Tabb v. Burt, Mo.App., 296 S.W. 820, 821(1, 2); City Trust Co. v. Cunningham, 223 Mo.App. 896, 903, 20 S.W.2d 930, 934. And, although review of court-tried cases is upon both the law and the evidence, appellate courts rest under the injunction imposed by antecedent statute and superseding rule that a judgment nisi “shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.” V.A.M.R. Rule 73.01(d); V.A.M.S. § 510.-310(4); Hoover v. Whisner, Mo.App., 373 S.W.2d 176, 182(7). Reviewing the instant cases in that spirit and under that injunction, we think it clear that the judgments for plaintiff should be affirmed. It is so ordered.

RUARK, P. J., and HOGAN, J., concur.

      . Doughty v. Terminal R. Ass’n. of St. Louis, Mo., 291 S.W.2d 119, 121(1); State ex rel. Ballew v. Hawkins, Mo.App., 361 S.W.2d 852, 856; City of Jefferson v. Capital City Oil Co., Mo.App., 286 S.W.2d 65, 68(2); Wiles-Chipman Lumber Co. v. Pieper, Mo.App., 176 S.W.2d 50, 52(2).

      . Morris v. Willis, Mo., 338 S.W.2d 777, 780(7); James v. James, Mo., 248 S.W. 2d 623, 627(8); Cardin v. King, Mo.App., 344 S.W.2d 633, 635-636(3); Lubrication Engineers, Inc. v. Parkinson, Mo.App., 341 S.W.2d 876, 877(2); Staples v. O’Reilly, Mo.App., 288 S.W.2d 670, 678(19).

      .Buchanan v. Cabiness, 240 Mo.App. 829, 838, 221 S.W.2d 849, 855(8); Julius Seidel Lumber Co. v. Hydraulic Press Brick Co., Mo.App., 288 S.W. 979, 981(5, 6). See Fuhler v. Gohman & Levine Const. Co., 346 Mo. 588, 598, 142 S.W.2d 482, 486(11-13); 17 Am.Jur., Dismissal, etc.,' § 80, p. 154.

      . Town of Carrollton to Use of Hanchett Bond Co. v. Tonnar, Mo.App., 28 S.W.2d 443, 446(6, 8); Town of Carrollton ex rel. Barrie v. Thomas, Mo.App., 24 S.W.2d 218, 222(7, 8); City of Glendale ex rel. and to Use of Keyes v. Armstrong, Mo.App., 17 S.W.2d 604, 607-608(7); City Trust Co. v. Cunningham, Mo.App., 7 S.W.2d 456, 459(6); City of Webster Groves to Use of Lafayette South Side Bank of St. Louis v. Reber, Mo.App., 226 S.W. 77, 79-80(7); Coatsworth Lumber Co. v. Owen, 186 Mo.App. 543, 557, 172 S.W. 436, 440(7); Myers v. Wood, 173 Mo.App. 564, 577, 158 S.W. 909, 913(7); Trimble v. Stewart, 168 Mo.App. 276, 278, 153 S.W. 1086, 1087(1).

      . Casteel v. Dearmont, 221 Mo.App. 1217, 1224, 299 S.W. 816, 819(10); Burress v. Spring, 143 Mo.App. 688, 128 S.W. 27(7); Traders’ Bank v. Payne, 31 Mo.App. 512, 521.

      . Town of Carrollton to Use of Hanchett Bond Co. v. Tonnar, supra, 28 S.W.2d at 446; Town of Carrollton ex rel. Barrie v. Thomas, supra, 24 S.W.2d at 222; Myers v. Wood, supra, 173 Mo.App. at 577, 158 S.W. at 913; Trimble v. Stewart, supra, 168 Mo.App. at 280, 153 S.W. at 1087. See State ex rel. Tonnar v. Bland, 324 Mo. 987, 991, 25 S.W.2d 462, 464.

      . Needles v. Kansas City, Mo., 371 S.W.2d 300, 306-307(4-8); Fulton v. City of Lockwood, Mo., 269 S.W.2d 1, 7-8(16-18); Fleshner v. Kansas City, 348 Mo. 978, 981, 156 S.W.2d 706, 707(3); W. W. Cook & Son v. City of Cameron, 144 Mo.App. 137, 128 S.W. 269.

      . City of St. Louis to Use of Sullivan, Adm’x. v. Clemens, 42 Mo. 69, 73; Brick & Terra Cotta Co. v. Hull, 49 Mo.App. 433, 442(3); Gould v. City of Illmo, Mo.App., 108 S.W.2d 418, 422(6). See Coatsworth Lumber Co. v. Owen, supra, 186 Mo.App. at 550, 172 S.W. at 438.

      . Brink v. Kansas City, 358 Mo. 845, 851, 217 S.W.2d 507, 510(6); Bridges Asphalt Co. v. Jacobsmeyer, 346 Mo. 609, 614, 142 S.W.2d 641, 644(10); Williams v. Hybskmann, 311 Mo. 332, 344, 278 S.W. 377, 380(8); Seales v. Butler, Mo.App., 323 S.W.2d 25, 28(4); City of Rolla to Use of Schulz v. Studley, Mo.App., 120 S.W.2d 185, 188(4).

      . V.A.M.R. Rule 73.01(b) ; V.A.M.S. § 510.310(2); Sando v. Phillips, Mo., 319 S.W.2d 648, 652(9); Lange v. Baker, Mo.App., 377 S.W.2d 5, 6(1); Davis v. Broughton, Mo.App., 369 S.W.2d 857, 862 (4); Rauth v. Dennison, Mo.App., 357 S.W.2d 201, 206(4).

      . Spaeth v. Parkin, Mo., 325 S.W.2d 767, 771(3); Cull v. Pfeifer, Mo., 307 S.W.2d 424, 428(5); Peine v. Sater, Mo., 289 S.W.2d 101, 102(1); Allen v. Smith, Mo.App., 375 S.W.24 874, 880(8). See Hampton v. Niehaus, Mo., 329 S.W.2d 794, 800(6), 801-802(9, 10).

      . Leggett v. Missouri State Life Ins. Co., Mo. (banc), 342 S.W.2d 833, 850(2); Day v. Blackbird, Mo., 331 S.W.2d 658, 660(2); In re Petersen’s Estate, Mo., 295 S.W.2d 144, 148(3); Hoover v. Whisner, Mo.App., 373 S.W.2d 176, 182(7); Rector v. Tobin Const. Co., Mo.App., 351 S.W.2d 816, 820(1).


author: DAVIS, Commissioner.

text:
    Vanroe HICKS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    March 26, 1965.
    Vanroe Hicks, pro se.
    Robert F. Matthews, Atty. Gen., Frank D. Berry, Asst. Atty. Gen., Frankfort, for appellee.
   DAVIS, Commissioner.

This is an appeal from the trial court’s order denying appellant’s motion to vacate the judgment of the same court by which he had been sentenced to imprisonment for life upon his plea of guilty to violation of KRS 433.140 {armed robbery).

The basis for the motion, filed pursuant to RCr 11.42, and the sole basis urged on this appeal is the claim that the convicting judgment is void because appellant was found guilty and sentenced (upon his plea of guilty) by the trial judge, without the intervention of a jury. Since KRS 433.140 permits a sentence of death, it is reasoned that KRS 431.130 (as it existed in 1961 when the present conviction was had) forbids the judge’s entering of sentence without a jury’s verdict. Cf. RCr 9.84, which now embodies the substance of former KRS 431.130.

There is no contention that appellant failed to appreciate the significance of his action; he had counsel, and had entered a plea of “not guilty,” but withdrew that plea. The only penalties provided by the applicable statute are imprisonment for life or death. He received the lower one.

In cases arising under habeas corpus proceedings this Court has held that an accused may waive his right to trial by jury, even in those cases where a death sentence is within the permitted penalty. The opinions stand for the principle that it may be erroneous for a trial judge to impose a sentence, even less than the death penalty, if death is a permitted penalty — but such error does not render the conviction judgment void. See Lynch v. Jones, Ky., 342 S.W.2d 394; Williams v. Jones, Ky., 338 S.W.2d 693; Thomas v. Maggard, Ky., 313 S.W.2d 271. The same principle long has been accepted by the United States Supreme Court. See Adams v. U. S. ex rel. McCann, 317 U.S. 269 (1942), 63 S.Ct. 236, 87 L.Ed. 268, 143 A.L.R. 435; Patton v. U. S., 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854, 70 A.L.R. 263.

Since the judgment is not void, it is not subject to attack under RCr 11.42. Tipton v. Commonwealth, Ky., 376 S.W.2d 290.

The judgment is affirmed.


text:
    COMMONWEALTH of Kentucky, DEPT. OF HIGHWAYS, Appellant, v. Monroe ADAMS et at., Appellees.
    Court of Appeals of Kentucky.
    March 26, 1965.
    John B. Breckinridge, Atty. Gen., Wm. A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Edmond H. Tackett, Pikeville, for appellant.
    Scott Collins, Prestonsburg, for ap-pellees.
   DAVIS, Commissioner.

The appellees were awarded $9,000 by verdict and judgment in this condemnation action; the Department of Highways seeks to reverse the judgment upon these grounds: (1) The appeal to circuit court from county court was not timely; (2) witnesses for appellees gave incompetent evidence and used irrelevant factors and non-compensable items as bases for appraisal; (3) evidence of double damages was allowed ; (4) the verdict is excessive.

Before the taking the land owned by appellees consisted of about ten acres, located on Middle Creek. A relatively new residence is situated on the property; the home is not taken, hut its utility will be adversely affected by the taking, according to the view of the appellees. Before the taking a privately built 35-foot bridge spanned Middle Creek from Kentucky Highway No. 1Í4 into the premises. The taking includes that bridge, and the channel of the creek will be changed so- that it will he closer to appellees’ residence. The taking is of i.6 acres of overflow creek bottom land. It will be necessary for ap-pellees to provide a new, longer bridge across Middle Creek in order to have ingress and egress to and from the property. The taking is for construction of the Eastern Kentucky Parkway Extension.

For the appellees it was shown that although the taken bottom land is subject to overflows in seasons of heavy rain, it was quite productive. Moreover, appellees had evidence that a portion of the bottom land which remains is partially “swampy” and, by reason of its proximity to the relocated creek channel, such bottom land as remains will not be usable.

Two appraisal witnesses gave evidence for the Department; one gave a before value of $9,940 and after value of $7,640, with a resulting difference of $2,300. The other placed the before and after values at $10,325 and $7,905, respectively, so that the difference equaled $2,420.

Witnesses for appellees gave before value estimates ranging from $12,000 to $14,-000; their after values ranged from $3,000 to $4,000, so that their “difference” figures were $9,000 to $10,000. As noted, the jury’s award was $9,000.

First, it is urged that the judgment must be reversed because the appeal from the Floyd County Court to the Floyd Circuit Court was not timely. KRS 177.087(1) directs that the appeal time in such instances is thirty days. However, by an amended and supplemented record, as permitted by CR 75.08, it is shown that the appeal from the county court to the circuit court was timely. Hence, there is no merit in the first contention. Cf. Com., Dept. of Highways v. Berryman, Ky., 363 S.W.2d 525, and Com., Dept. of Highways v. Daly, Ky., 374 S.W.2d 497.

The complaint relating to evidence of irrelevant factors and noncompensable items is founded primarily in the evidence for appellees which reflected the cost of construction of a new bridge across Middle Creek. The trial court admitted evidence on this phase of the case, over objection by appellant, but subsequently struck the evidence from the case and admonished the jury not to consider it. Under these circumstances, we are not able to say that appellant’s substantial rights were prejudiced. CR 61.01.

Appellant asserts that “double damages” were allowed, and that this happened because evidence as to “double damages” was erroneously admitted. It relies on such cases as Com., Dept. of Highways v. Taylor, Ky., 368 S.W.2d 732; Com., Dept. of Highways v. Eubank, Ky., 369 S.W.2d 15; Pierson v. Com., Dept. of Highways, Ky., 350 S.W.2d 487; and Com., Dept. of Highways v. Blanton, Ky., 352 S.W.2d 545. The basis of this argument is that evidence as to the cost of a new bridge—plus evidence that the remainder will be damaged because of the loss of the old bridge—is obviously “double damage” evidence. We agree; however, as just observed, the trial court excluded the evidence relating to the cost of a new bridge; in so doing, the basis for the argument was eliminated.

We do not find the verdict to be so excessive as to shock the conscience at first blush. It appears liberal, but not excessive. There is no merit in appellant’s contention relating to evidence of other sales which were not truly comparable, since the trial court refused to permit the witnesses to give details of these challenged sales.

The judgment is affirmed.

HILL, J., not sitting.


author: STEWART, Judge.

text:
    Reba Ann PHELPS, Individually and as Administratrix of the Estate of John C. Phelps, Deceased, Appellant, v. Zula STEVENS, Individually and as Executrix of the Estate of James A. Stevens, Deceased, Appellee.
    Court of Appeals of Kentucky.
    March 26, 1965.
    John W. Beard, Bratcher, Rummage & Beard, Owensboro, for appellant.
    John,B. Anderson, Owensboro, for appel-lee.
   STEWART, Judge.

Samuel L. Givens, a single person, in 1951 conveyed Lot No. 1 in the Samuel L. Givens Subdivision in Daviess County to James A. and Zula Stevens for their joint natural lives with remainder in fee to the survivor of them. On August 16, 1958, the Stevenses, by general warranty deed which contained no restrictions or reference to restrictions, conveyed the property to John C. and Reba Ann Phelps for their joint natural lives with remainder in fee to the survivor of them, in consideration of $1500 cash and a purchase money note for $9500, bearing interest at 6% per annum and payable in 312 monthly installments of $60.20 each.

A deed of dedication restricts the lots in the Samuel L. Givens Subdivision to residential purposes-. However, an accompanying plat recorded with the deed of dedication contains the notation that Lot No. 1 may be utilized commercially. An Owens-boro attorney, reading the two instruments together, in a letter to the Stevenses expressed his opinion that the property could be used commercially and also reiterated the same view in a letter to the Phelpses.

The property when conveyed by the Stevenses to the Phelpses contained a residence but, soon after purchasing it, the Phelpses began preparations for erecting a commercial building. Thereupon the fiscal court of Daviess County sued the Phelpses to prohibit this property from being employed for any purpose other than residential. The Daviess Circuit Court in that action by judgment dated May 8, 1962, presumably because of a zoning restriction, permanently enjoined the Phelpses from devoting the property to any use other than residential. No appeal having been prosecuted from that judgment, it has become final.

The deed contained a vendor’s lien and provided that upon 30 days’ default in the payment of any monthly installment the holder of the note could declare the entire balance due and proceed to enforce the lien retained. The monthly payments were made, including the August 15, 1961, installment, but no payments have been made since. The holder of the note, appellee, declared the entire balance due and brought this action on November 4, 1961, to enforce the vendor’s lien. A sale of the property affected by the lien was asked to satisfy the judgment on the note.

The answer and counterclaim alleged breach of the covenant of general warranty contained in the deed, which breach came about because it developed the property was restricted as to use, and no mention of any restriction or reservation was contained in the deed. This pleading also asked for a judgment declaring that appellant be not held liable for any additional payments on the note, for a return of the amount paid, and “for all special, general and equitable relief.”

During the trial appellant undertook to introduce testimony concerning damages, but an objection was interposed thereto and such objection was sustained. Appellant then moved to amend her pleadings in order to allege damages and, before judgment, she again moved to amend to include damages. Appellee objected each time, and the trial judge overruled the two motions.

The trial judge concluded appellee was not entitled to a foreclosure of the lien but was of the opinion that the deed of conveyance should be set aside and the parties restored, as far as possible, to the position they occupied before the transaction was consummated. A judgment was entered under which the property was ordered re-conveyed and an accounting was worked out between the parties and ordered to be effectuated. This appeal is from the judgment.

Neither appellee nor appellant asked for rescission of the deed of conveyance. The holder of the note; appellee, was entitled to sue for the entire debt, upon appellant’s failure to pay any note installment for a 30-day period, and to ask for an enforcement of the lien expressly reserved and for the application of the proceeds derived from a sale of the property in satisfaction of the unpaid purchase money. See Sowders v. Gingell, 174 Ky. 127, 191 S.W. 896. The essence of appellant’s elaim was that the trial court should determine the measure of her damages, if any, by reason of a breach of warranty.

Under the facts presented appellant would be entitled, if her proof establishes a breach of warranty, which point we do not decide, ter recover damages from appel-lee in this action and, if she should so elect, retain the property upon payment of the purchase price, less such damages as she has suffered. “Where the land is conveyed by a warranty deed the court has jurisdiction to award relief to the purchaser by abating from the unpaid purchase price any damage resulting from a breach of the vendor’s covenants, and the damages may be ascertained either by directing an issue quantum damnificatus to be tried by a jury or by a reference to-a commissioner.” See 55 Am.Jur., Vendor and Purchaser, sec. 506, p. 899.

The trial court under CR 15.02 should have permitted appellant to amend her pleadings during the course of the trial. No new subject matter was raised by the proposed amendments. Actually, appellant’s pleadings, as they stand, support her theory of entitlement to compensation for breach of warranty but, for the purpose of clarity, the amendments offered should have been received and filed.

Wherefore,, the judgment is reversed for consistent proceedings.


author: WADDILL, Commissioner.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Paul EAVES et al., Appellees.
    Court of Appeals of Kentucky.
    March 26, 1965.
    John B. Breckinridge, Atty. Gen., William A. Lamkin, Jr., Asst. At-ty. Gen., C. E. Skidmore, Department of Highways, Frankfort, for appellant.
    B. R. Paxton, Jarvis, Cornette, Payton & Paxton, Greenville, for appellees.
   WADDILL, Commissioner.

This is a condemnation case wherein the Department of Highways acquired .41 of an acre from a 1.5 acre tract used by appellees as a salvage yard. This land is located near Central City with frontage on U. S. Highway #62. Upon trial in the circuit court the landowner was awarded $10,000; $2500 for the land taken and $7500 as damages to the remainder.

For reversal of the judgment accordingly entered it is argued that the trial court erred in permitting several witnesses to testify, over objections, as to the cost of moving the junked automobiles which were kept by the landowners on the condemned site. The contention has merit for it is the rule in this state that a recovery cannot be had in condemnation cases for the cost of removal of personal property as the landowner is only entitled to payment of the difference in market value of the property before and after the taking. Chain Belt Co. v. Commonwealth, Ky., (rendered March 19, 1965). For the same reason it was error for the trial court to permit evidence as to the necessity and cost of screening the landowners’ remaining tract of land. See also Commonwealth, Dept. of Highways v. Sherrod, Ky., 367 S.W.2d 844.

Since we are reversing the judgment with directions to grant appellant a new trial we do not reach the question of whether the award is excessive and it is specifically reserved.

The judgment is reversed with directions to grant appellant a new trial.