author: HOUSER, Commissioner.

text:
    MILTON CONSTRUCTION & SUPPLY COMPANY, a Corporation, Plaintiff-Respondent, v. METROPOLITAN ST. LOUIS SEWER DISTRICT, a Municipal Corporation, Defendant-Appellant, and William L. Whalen et al., Intervenors-Appellants.
    No. 48569.
    Supreme Court of Missouri, Division No. 1.
    Dec. 11, 1961.
    Motion for Rehearing or to Transfer to Court en Banc Denied Jan. 8, 1962.

      Charles B. Kaiser, Jr., George C. Hays,. Edward G. Wiegers and Charles Clardy,. St. Louis, for defendant-appellant.

      Val Terschluse, St. Louis, Strubinger, Tudor, Tombrink & Wion, for intervenors-appellants.
    Kerth, Thies & Schreiber, A. H. Kerth, Dalton W. Schreiber, Clayton, for plaintiff-respondent.
   HOUSER, Commissioner.

Milton Construction & Supply Company, a corporation engaged in subdividing and developing real estate, building and selling houses to the public, filed a petition in the Circuit Court of St. Louis County seeking (1) a declaratory judgment that paragraph 7 C of its contract with Metropolitan Sewer District (hereinafter MSD) was void and unenforceable, and (2) recovery of $59,400 deposited by plaintiff with MSD pursuant to the contract, plus interest. Paragraph 7 C, briefly, provided that upon the occurrence of a certain contingency the amount deposited by plaintiff with MSD (to insure proper sanitary sewage disposal for two certain subdivisions) be refunded to the lot owners. One hundred lot owners were permitted to intervene and make claim to the fund for themselves and for the entire class of 297 lot owners of which they were a part. Tried to the Circuit Court of St. Louis County upon an agreed statement of facts and certain oral evidence presented to the court, sitting without a jury, judgment was rendered finding paragraph 7 C void and unenforceable; ordering the refund of the amount deposited, with interest, to plaintiff, and awarding judgment for plaintiff and against MSD in the sum of $59,400, plus $14,374.80 interest, in the total sum of $73,774.80. From that judgment MSD and intervenors appealed to this Court.

The agreed statement of facts, signed by the attorneys for plaintiff, MSD and intervenors, follows:

“Comes now the Plaintiff, Defendant and the Intervenors individually and as representatives of the entire class, by their respective attorneys, and agree that this Cause of Action may be submitted on the following agreed statement of facts:
“1. That Plaintiff is a corporation duly organized and existing under the laws of the State of Missouri, having its principal office at 7567 St. Charles Rock Road in Saint Louis County, Missouri.
“2. That The Metropolitan St. Louis Sewer District is a Municipal corporation, and a political subdivision of the State of Missouri, with power to sue and be sued, contract and be contracted with and in other ways to act as a public corporation as provided in a Plan submitted to the qualified voters of the City and County of St. Louis, Missouri, and adopted at special elections which were held separately in said City and said County on Tuesday, February 9, 1954.
“3. That the Intervenors herein, as individuals and as representatives of a class of persons similarly situated were customers of the Plaintiff, having purchased the hereinafter mentioned lots from Plaintiff prior to February 7, 1956.
“4. That under the provisions of Article 3, Section 3.010, effective on July 1, 1954, and by virtue of the adoption of the Plan by the vote of the people of the City and County of St. Louis, the existing sanitary and storm sewer systems and facilities of any and all municipalities, sewer districts and other public agencies situated within the boundaries of the said City and County, became subject to the exclusive jurisdiction, control and supervision of the Defendant; and under the provisions of Section 3.020 the District (Defendant) was empowered to have exclusive jurisdiction, control, possession and supervision of such sewers and drainage systems and facilities as are placed under its jurisdiction by the provisions of said Plan; that under the provisions of Section 12.010 the Plan was declared to be a Public Act, and all Courts shall take judicial notice thereof.
“5. That for a long time prior to the 9th day of February, 1954, the Plaintiff had been engaged in the business of acquiring, developing and selling parcels of real estate situated within the County and City of St. Louis, Missouri.
“6. That Plaintiff was the developer of Subdivisions known as Hathaway Meadows No. 3 and Hathaway Meadows No. 4.
“7. That the Intervenors, as individuals and as representatives of the whole class, were the owners of 297 lots in said Subdivisions, Hathaway Meadows No. 3 and Hathaway Meadows No. 4, on February 7, 1956, being Lots 278 to and including 432 in Hathaway Meadows #3, and 433 to and including 587 in Hathaway Meadows #4, excepting therefrom Lots 541, and 542 to 553 in Hathaway Meadows #4, the latter being owned on said date (February 7, 1956) by the Plaintiff herein.
“8. That said Intervenors and the entire class as individuals had purchased said Lots from Plaintiff at various times prior to February 7, 1956 (or were owners in fee of some of said lots on said date by mesne conveyances from those who had purchased from Plaintiff) and were owners of record on February 7, 1956.
“9. That prior to construction and sale of said homes and lots, Plaintiff as developer of said Subdivisions and in accordance with its established plan for the development of said Subdivisions, desired to provide sanitary sewers and sewer facilities for said lots and to accomplish that end Plaintiff applied to Defendant for permission to install such sewage facilities in Hathaway Meadows No. 3 and Hathaway Meadows No. 4.
“10. That as a condition to the granting of a permit to Plaintiff for the installation of said sewers aforesaid, Defendant required Plaintiff to enter into an agreement bearing date of January 12, 1955, providing for sewage disposal, or construction of a complete permanent treatment plant, which said agreement is attached hereto and incorporated herein by reference the same as though fully set forth herein, and said agreement required the Plaintiff to deposit the sum of $200.00 per each lot for which a sanitary sewer connection had been requested to provide a fund for the construction of complete permanent treatment facilities or of a trunk sanitary sewer or sewers to care for sewage created by these and other homes.
“11. That Plaintiff was agreeable and willing to and did enter into said agreement as attached, on January 12, 1955, but, that Plaintiff objected to said agreement in part, especially sub-paragraph C of Paragraph 7, pertaining to refunding of the $200.00 per lot to the owners on the date when the bond issue was approved by voters of the sub-district, and therefore insisted upon the insertion of Paragraph 10 of said contract to preserve its right to test the validity of said contract and so that its signing of same would not constitute a waiver of that right.
“12. That Plaintiff did deposit the sum of $200.00 per lot, aggregating $61,600.00, with the defendant for the said 308 lots in issue, following the execution of said agreement.
“13. That said Agreement provided in part (Paragraph 7, subparagraph C) that if the voters of the sub-district in which these lots were located should vote for the construction of a trunk sanitary sewer to be financed by any form of obligation of the Sub-district, the amounts so deposited by plaintiff for the benefit of each lot would be refunded to the persons owning such lots on the date that the indebtedness is authorized by such vote.
“14. That thereafter Plaintiff constructed and built the various houses on said lots and installed the house laterals and street laterals within the area mentioned and thereafter sold said houses and lots to the Intervenors herein, or to the predecessors in title to some of the Intervenors herein.
“15. That on February 7, 1956, the lawful voters of the Sub-district of Defendant wherein these lots are located, at an election held for that purpose, authorized the issuance of bonds as an indebtedness of said Sub-district, as provided by law, the proceeds of which would be used for the construction of a trunk sanitary sewer, and said bonds were to be retired by taxation of the people of said Sub-district, and since said time, annual taxes are and have been collected for said purpose. That the records of St. Louis County, Missouri, will show the following total assessments, for the years stated, of the properties within the boundaries of the Maline Creek Sanitary Trunk Sewer Sub-district, to-wit:
December 31, 1955 $56,729,240.00
December 31, 1956 89,875,000.00
December 31, 1957 93,404,683.00
“16. That Defendant then notified all concerned that the aforementioned monies held on deposit by it would be refunded to the owners of the lots on the date in question (February 7, 1956) and Defendant did refund to Plaintiff the sum of $2,200 for 11 of said lots which were still owned by Plaintiff on said date, being Lots 541, and 542 to 553.
“17. That all other aforementioned lots, 278 to 432 of Hathaway Meadows No. 3, and 433 to 587 (excepting the lots mentioned in paragraph 16 above) had been sold by Plaintiff prior to February 7, 1956, to the Intervenors herein or others, but being the whole class represented as Intervenors or by said Intervenors as a class.
“18. That Plaintiff served notice on Defendant that it would contest the validity of the agreement attached and said remaining funds were held in abeyance by Defendant and not refunded under said agreement pending outcome of such contest.
“19. That thereafter this action was instituted by Plaintiff to test the validity of said contract and Intervenors filed their separate petition claiming said funds for themselves individually and as representatives of the entire class, under the contract.
“20. That all parties hereto had knowledge of said deposits and the terms of the referenced agreement prior to sale of said lots and homes by Plaintiff herein.
. “21. That a Copy of the Plan of the Metropolitan St. Louis Sewer District as adopted by the voters of the City and County of St. Louis, is filed herewith and made a part of this agreement as though fully set forth herein.
“22. That parties admit the demand for payment made by Plaintiff and Intervenors for the aforementioned funds held on deposit by Defendant, as alleged in their respective amended petitions.
“23. That the balance in dispute in this particular cause of action is the sum of $200 per lot for a total of 297 lots, equal to $59,400.00, and that $2,200.00 has been refunded to Plaintiff as owner of the 11 said lots on the date mentioned in the agreement (February 7, 1956).
“24. That the parties hereto reserve the right to offer additional evidence at the time of submission of this cause.”

The agreement between MSD and plaintiff referred to in the agreed statement of facts required plaintiff to prepare plans and specifications for sanitary sewers to be installed in its subdivisions, with provision for their extension and connection to discharge into an existing sanitary sewer system served by an existing treatment plant, or a new sewage treatment plant. Upon approval of the plans and specifications plaintiff was obligated to “make all payments or deposits of fees or guarantee funds for the proposed construction before such construction will be allowed to start,” and to construct and install such sewers or treatment plant at its own expense and under the supervision of MSD. Upon completion of the sewers plaintiff was to appoint three interim trustees to operate, maintain and repair the sewers and treatment plant until the sewers and treatment plant should be transferred to MSD by deed of dedication transferring to MSD all right, title and interest in the sewers and treatment plant, whereupon the trusteeship would cease. Paragraph 7 provided that “Before any construction is started on any lot within the parcel or subdivision, the Contractor shall deposit with the .District the sum of Two Hundred and No/100 Dollars ($200.00), to be held by the District for each lot for which a sanitary sewer connection has been requested. The District shall deposit and hold such sums, together with such other sums similarly deposited, in a separate account in a bank or trust company, and shall disburse therefrom, in accordance with the agreement between the District and the Trustees on one of” several conditions: (A) If the District constructed a trunk sewer for an amount equal to or less than the total amount of the deposits, the deposits were to be disbursed in payment of the subdivision’s proportion of the costs, and any balance remaining was to be refunded ratably to the owners of the lots on the date the trunk sewer was completed and accepted. '(B) If the deposits were not sufficient to pay for a trunk sewer the District could elect to build a trunk sewer to be paid for by special assessment, crediting each lot with the $200 deposit, and the lot owner and the property was to be liable for the amount in excess of the deposit. (C) provided: “If the District finds that it is impracticable to finance the construction of a trunk sanitary sewer or sewer's in the manner set out in either A or B, above, and the subdistrict in which the said subdivision is located shall vote for the construction of a trunk sanitary sewer to be financed by any form of obligation of the subdistrict, the amounts held on deposit for the benefit of each lot shall be refunded to the persons owning such lots on the date that the indebtedness is authorized by such vote.” (This is the contingency which actually occurred.) (D) If it should be determined that the construction of a trunk sewer was impracticable, the District could build a sewage treatment plant to serve plaintiffs’ and other subdivisions. The deposits would apply thereon, and any balance remaining was to be refunded ratably to the persons owning the lots on the date the treatment plant and connecting sewers were completed and accepted. (E) If the distance between the subdivisions and existing or proposed trunk sewers was considerable, and there was no reasonable prospect of connecting sub-trunk sewers, and the creek serving the subdivisions was not considered polluted, the sanitary sewers of the subdivisions were to drain into a complete sewage treatment plant, and in addition, the contractor was to deposit $200 per lot, to be disbursed as prescribed in paragraphs 7 A and B. .

MSD’s first point is that the trial court erred in overruling MSD’s motion to dismiss for lack of jurisdiction over the subject matter. MSD was established under Constitution, Art. VI, § 30(a) , V.A.M.S., for the functional administration of services common to certain areas of the City and County of St. Louis. The adopted Plan for the execution of the powers given MSD contained a review procedure, which MSD contends is exclusive by reason of the provision of § 30(b) of Art. VI of the Constitution that the Plan adopted “shall become the organic law of the territory therein defined, and shall take the place of and supersede all laws, charter provisions and ordinances inconsistent therewith relating to said territory.” Section 12.110 of the Plan provides that “Any person * * * aggrieved by any decision or order of the Board or of any officer of the District may present to the Circuit Court * * * a petition, duly verified, setting forth that such decision or order is illegal, in whole or in part, and specifying the grounds of the illegality. Such petition shall be presented to the court within thirty days after the filing of the decision or order in the office of the Board or officer * * *. Upon the presentation of such petition, the court may allow a writ of certiorari directed to the Board or officer * * * to review such decision or order of the Board or officer * * *, and shall prescribe the time within which a return thereto may be made and served upon the aggrieved person * * *, etc.” MSD contends that plaintiff was aggrieved by an “order or decision” of the Board; that the circuit court had jurisdiction to adjudicate plaintiff’s cause of action only as provided in Plan § 12.110; that under Plan § 12.110 the time limit for the exercise of jurisdiction was “thirty days after the date Plaintiff was ‘aggrieved’ ”; that plaintiff was aggrieved January 17, 1956, the date plaintiff deposited the money with defendant under protest, so that plaintiff’s right to file a petition for a writ of certiora-ri under Plan § 12.110 expired February 17, 1956; that plaintiff’s petition was not filed until September 12, 1956, almost eight months too late under Plan § 12.110, and also too late under the doctrine of laches.

The circuit court properly overruled MSD’s motion to dismiss. The review procedure prescribed by Plan § 12.110 relates to complaints of illegality of decisions and orders of the Board or officers of the District. Plaintiff’s petition did not attack the legality of any decision or order of the Board or of any officer of the District, nor did it in its petition claim to have been “aggrieved” by any such decision or order. Plaintiff, expressly alleging that paragraph 7 C of its agreement with MSD was void and unenforceable, filed a petition for a declaratory judgment and for the recovery of a sum deposited under protest under the agreement. The theory of plaintiff’s petition was that due to the invalidity of paragraph 7 C of the agreement plaintiff was entitled to recover a certain sum of money. Plaintiff sought a judicial declaration of its rights — a determination of the validity of a paragraph of an agreement in which it was interested — -a situation precisely contemplated by § 527.020, RSMo 1949, V.A.M.S., of the Declaratory Judgments Act. The circuit court had jurisdiction to entertain this action for a declaratory judgment and for the recovery of the sum deposited under protest.

The question for decision on the merits is whether paragraph 7 C is a valid contractual provision in the exercise of the police power granted MSD to protect the public health and welfare, or is void and unenforceable, arbitrary, discriminatory, ultra vires, unjust and inequitable, against public policy and whether the enforcement of paragraph 7 C results in the unlawful taking of plaintiff’s property without due process of law and without just compensation. There is no issue as to the power of MSD to require a subdivider-contractor to make a deposit such as this one. This is conceded by plaintiff, which in its brief says it “does not question the right of the Defendant Sewer District to require assurance by way of a deposit to guarantee that appropriate sewer facilities will be provided as the public health may require.” Plaintiff raises no objection to the use of the funds deposited in any of the several ways provided for in paragraph 7, subparagraphs A, B, D or E. Nor does plaintiff contend that the sum required to be deposited ($200 per lot) is excessive in amount. The gist and burden of plaintiff’s complaint is that paragraph 7 C required the refund of the deposits to the owners of the lots rather than to plaintiff; that the money on deposit is plaintiff’s property and should be refunded to it, and not “to a third party, who may happen to own the lot.” Plaintiff is concerned only with the provision for refund to the lot owners upon the occurrence of the contingency mentioned in subparagraph C of paragraph 7. Specifically, plaintiff urges that a contractual provision for refund of deposits to the various persons owning lots on the date of approval of the bond issue constitutes a wrongful and unlawful appropriation and taking of the property of plaintiff without due process and without just compensation, in contravention of federal and state constitutional guaranties; that one has an inherent right to acquire, enjoy and dispose of his property, which shall not he taken away from him without his consent, without due process of law, and that there is no justification “for taking the property of plaintiff and giving it to the property owners” ; and that this refund provision is arbitrary, unreasonable, oppressive and confiscatory.

A regulation designed to promote the health and welfare of the people does not infringe on constitutional guaranties of personal rights and due process “unless the regulation passes the bounds of reason and assumes the character of arbitrary power.” Brawner v. Brawner, Mo.Sup., 327 S.W.2d 808, 815; 16A C.J.S. Constitutional Law § 606. The object sought to be attained by the contractual provision challenged was the refund of the deposit to the proper party upon the issuance of subdis-trict obligation bonds to pay for the improvement. We cannot say that the provision that, in the contingency which happened, the amounts held on deposit be refunded to the persons owning the lots on the date the debt was voted, is unreasonable and arbitrary, or that it constitutes the taking of plaintiff’s property and the giving of it to plaintiff’s grantees in violation of constitutional rights of property. On the contrary, this provision bears a reasonable and rational connection with the object sought to be attained, and does not deprive plaintiff of its property against its will. Tying the right to refund to the ownership of the lots was a reasonable exercise of the power of MSD to require a deposit. By voting bonds to pay for the improvement the funds deposited were no longer needed, and the obligation was thereby imposed upon the landowners in the subdistrict to pay for the improvement by taxation. In that contingency it was reasonable to require that the deposit, made for the benefit and to the account of each lot, be refunded to the owners of the lots, upon whom the tax burden would fall. Paragraph 7 C does not forcibly deprive plaintiff of its property against its will because plaintiff was entitled to the return of the deposit made on account of a particular lot if plaintiff owned the lot on the date the bond issue passed. Plaintiff was not required, in a legal sense, to give up its interest in the deposit. Plaintiff could keep its lots until the issue was settled, and recoup the deposit if there was a favorable vote at an election. As a matter of fact plaintiff received a refund of $2,200, representing the deposits made on eleven lots still owned by plaintiff on the date of the bond election. In selling lots before the issue was settled plaintiff, knowing of the provisions of paragraph 7 C in its contract with MSD, must be held to have voluntarily forfeited the possibility of securing a refund of the amount of the deposits on the lots thus sold. To sell now and forfeit its deposit, or to wait and stand a chance of getting it back, were not the only choices open to plaintiff. There was a third possibility: plaintiff had the opportunity to treat the deposit of $200 per lot as an item of cost and add it to the purchase price of the homes it was preparing to market. “All parties * * * had knowledge of said deposits and the terms of the referenced agreement prior to sale of said lots and homes by Plaintiff.” (Paragraph 20, agreed statement of facts.) In fact, plaintiff knew this a considerable length of time before the lots were sold. Plaintiff contracted “to make all deposits of guarantee funds” before construction should start, and paragraph 14 of the agreed statement of facts plainly recites that it was after entering into the contract with MSD that plaintiff installed the house and street laterals, constructed the houses and “sold said houses and lots to the Intervenors herein, * Plaintiff’s assertion to the contrary will not be considered. At the hearing plaintiff’s officers were permitted to testify that “a lot of houses” — “a greater portion” of them — were sold before they knew they would be required to deposit $200 per lot. This evidence was inadmissible. It should not have been considered by the trial court and is not considered on appeal, for the reason that it directly contradicts paragraphs 14 and 20 of the agreed statement of facts. 'The parties voluntarily entered into an agreement as to the facts to be used as evidence. Counsel for all parties signed the •stipulation. It was filed in court. The facts contained in the agreed statement are the facts which the parties did not wish to •controvert. The parties are bound and concluded by their agreement as to these facts, including paragraph 20, Hansen v. Ryan, Mo.Sup., 186 S.W.2d 595; Munford v. Wilson, 15 Mo. 540, 558, and will not be heard to dispute what they have agreed upon. “A party having admitted a fact should not be permitted to introduce evidence to contradict the existence of such fact.” 88 C.J.S. ’Trial § 59, p. 166.

Plaintiff objects that the action taken by MSD is ultra vires and beyond the ■scope and authority for which the District was created and exists; that MSD did not have power, expressly or impliedly, to give plaintiff’s monies “to others who might well be strangers to it in its sales and transactions”; that paragraph 7 C is palpably not for the benefit of MSD and did not further its purposes, namely, to supply functional administration of services to the area, and in the interest of public health and to provide adequate sewer and drainage facilities. In the exercise of the conceded power of MSD to enter into contracts requiring subdividers to make deposits to insure the installation of appropriate sewer facilities for the protection of the public health, MSD had the power to make reasonable provisions with respect to the refund of unused amounts so deposited, and to require that the refund be made as provided in paragraph 7 C, under the circumstances of this case.

Plaintiff further contends the agreement •constitutes a wrongful and unlawful discrimination against plaintiff and others for the reason that the payment of $200 will unjustly enrich various lot owners in an amount in excess of taxes they will be required to pay for this improvement. Plaintiff introduced evidence that the average assessed valuation of 100 homes in the subdivisions was $4,891 and that the last tax rate for sewer purposes in the District was 12^ per $100 valuation. Plaintiff argues that over a 20-year period at this rate and on this assessment the average lot owner would pay only $117.40 in taxes, and not $200, which would give the lot owner an advantage of $82.60. How much taxes any lot owner will pay over a 20-year period in the future is wholly speculative, but assuming the correctness of the figures, discrimination againt plaintiff is not thereby demonstrated. There is nothing to show that the taxes of plaintiff or other taxpayers will be increased, or that the taxes of intervenors will be decreased by the enforcement of paragraph 7 C. But plaintiff is in no position to complain that the lot owners will have a fund out of which they can pay taxes, or that intervenors will be unjustly enriched, because plaintiff had no further right to or interest in the deposits after it sold the lots. Certainly there was no unjust enrichment if plaintiff tacked $200 onto the price plaintiff otherwise would have charged for these houses.

Finally, plaintiff contends that paragraph 7 C is against public policy and in violation of the Corrupt Practices Act (Chapter 129, RSMo 1959, V.A.M.S.) in that it tends to impair the integrity of public elections and to curtail the free exercise of the elective franchise. There was evidence that at a public meeting attended by lot owners in the subdivisions the District Director of MSD stated that if the people voted the bond issue they would get back the $200. Paragraph 7 C does not require the doing of any act which might interfere with the orderly conduct of an election in a free, open and uninfluenced manner, or with the free and untrammeled exercise of the right of franchise by any voter. The fact that private contractual rights may turn upon the outcome of an election, or that someone makes an appeal to the voters based upon the provisions of a contract, does not vitiate the contract. The question is whether the terms of the contract itself tend to so impair and curtail. See 17 C.J.S. Contracts § 218. Paragraph 7 C is innocent of any such tendency.

The judgment of the circuit court is reversed and the cause is remanded with directions to set aside the judgment dated September 26, 1960, and to enter a new judgment for intervenors and against defendant for $59,400 on their intervening petition, said judgment to be entered as of September 26, 1960, and for defendant and against plaintiff on the issues as between plaintiff and defendant.

COIL and HOLMAN, CC., concur.

PER CURIAM.

The foregoing opinion by HOUSER, C., is adopted as the opinion of the court.

All of the Judges concur.

      . Namely, resolutions passed by the Board prescribing the procedure for applicants for approval of subdivision sanitary sewers where trunk sewers are not presently available. These resolutions prescribe the form of the contractual provisions to be used where it appears that applicant does not have available funds to construct an adequate trunk sewer (the same form used in paragraph 7 O of the instant contract).


source: Caselaw Access Project

author: COIL, Commissioner.

license: Public Domain

text:
    FROSTWOOD DRUGS, INC., Appellant, v. FISCHER & FRICHTEL CONSTRUCTION CO. et al., Respondents.
    No. 48452.
    Supreme Court of Missouri, Division No. 1.
    Dec. 11, 1961.
    Motion for Rehearing or to Correct Opinion or to Transfer to Court en Banc Denied Jan. 8, 1962.

      Marvin Klamen, Clayton, for plaintiff-appellant; Nouss, Bamburg & Gaebe and Harold B. Bamburg, Clayton, of counsel.
    Carroll J. Donohue, Myron Gollub, James W. Singer, III, Husch, Eppenberger, Don-■ohue, Elson & Jones, St. Louis, for defend•ants-respondents Fischer & Frichtel Const. Co., Fischer & Frichtel, Inc., and James S. .Kelly.
    Thompson, Mitchell, Douglas & Neill, Joseph P. Logan, Clayton, for defendant-respondent Blair Balk.
   COIL, Commissioner.

Frostwood Drugs, Inc. brought an action against Fischer & Frichtel Construction Company, Fischer & Frichtel, Inc., James S. Kelly, and Blair Balk. In the first count Frostwood sought to have specifically performed an alleged agreement between it and Fischer & Frichtel Construction Company to enter into a lease. In the second count Frostwood sought $11,000 actual and $150,000 punitive damages against Kelly and Balk for the alleged reason that each had maliciously persuaded Fischer & Frichtel Construction Company to breach its agreement with Frostwood. At the close of appellant’s (plaintiff’s) evidence the trial court sustained respondents’ motions to dismiss and entered a judgment from which Frost-wood has appealed.

Appellant’s second amended petition averred that after June 12, 1959, the Fischer & Frichtel companies entered into a written agreement with it “whereby said defendants agreed to lease to plaintiff certain premises in Carrollton Subdivision Shopping Center situated in the City of Bridgeton, St. Louis County, Missouri, for use by plaintiff as a drug store; that a true copy of such agreement is attached hereto as Plaintiff’s Exhibit A and incorporated herein by reference.

“3. That plaintiff and defendants Fischer & Frichtel Construction Company and Fischer & Frichtel, Inc. further agreed that such lease and plaintiffs occupancy of said premises would otherwise be the same as the lease and occupancy by plaintiff under a lease between plaintiff and said defendants of premises at Frostwood Subdivision Shopping Center, a true copy of which lease is attached hereto as Exhibit B and incorporated herein by reference; * * *

“6. That attached hereto as plaintiff’s Exhibit C is a draft of a lease embodying the provisions agreed to between plaintiff and defendants Fischer & Frichtel Construction Company and Fischer & Frichtel, Inc.”

Respondents, inter alia, asserted the applicable section of the statute of frauds, Section 432.010 RSMo 1959 and V.A.M.S. That section provides in part: “No action shall be brought to charge * * * any person * * * upon any contract made for the sale of lands, tenements, heredita-ments, or an interest in or concerning them, or any lease thereof, for a longer time than one year, * * * unless the agreement upon which the action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person by him thereto lawfully authorized, * * *."

Herbert Sokolik and Eugene Cooper each owned 49 of the 100 shares of Frost-wood, Inc. Sokolik had been designated Frostwood’s representative as to the matters here in question. Frostwood was lessee in a 1955 lease (Exhibit B mentioned in paragraph 3 of the petition quoted above) wherein Fischer & Frichtel, Inc., had leased to Frostwood a drugstore location in the shopping center of the Frost-wood subdivision which had been a project of Fischer & Frichtel Construction Company. Prior to the end of 1955 and at times during 1957 and 1958 representatives of Fischer & Frichtel made known to Soko-lik and Cooper that the company intended to construct the Carrollton Subdivision and shopping center and, in a general way, the plans therefor were discussed. In September 1958 it was suggested that Fischer & Frichtel soon would be ready to discuss with Sokolik a drugstore lease in the Car-rollton shopping center. Frostwood, through Sokolik, at all times evidenced a desire to discuss such a lease. Tentative plans for and, in March 1959 some sketches of, Carrollton were shown to Sokolik. At a May 1959 meeting, instituted by Edward Fischer of Fischer & Frichtel and attended by Sokolik, an exterior prospectus of the shopping center and plat of the area were displayed and later Fischer furnished So-kolik a “Blue Book” which depicted the plans for the subdivision and shopping center and indicated the location of the drugstore.

At a meeting late in May or early in June at Frostwood drugstore, attended by representatives of Fischer & Frichtel, Sokolik, and at times Cooper, the matter of a lease for the proposed drugstore area was discussed. Sokolik suggested an area of 4,500 square feet instead of the 6,000 shown, with an arrangement for future expansion; Frostwood’s financial statement was requested, and the matter of Frostwood guarantors for any lease which might be executed was mentioned. Mr. Sokolik testified that at that same meeting or at another in early June, Mr. Fischer said “that he would be agreeable to a lease, that of a dollar and seventy-five a square foot, four and a half per cent override; terms of ten years with two five-year options, and that the other terms of the lease would be the same as those at Frostwood” and that Fischer was referring specifically to the Fischer & Frichtel 1955 lease to Frostwood.

A day or two after June 12, 1959, Frost-wood received the following letter from Fischer & Frichtel which Sokolik “accepted,” as indicated, in July or August of 1959, and thereafter delivered to Mr. P'ischer with the request that the requirement for lease guarantors be eliminated:

“June 12, 1959
“Mr. Herb Sokolik
“Frostwood Drugs, Inc.
“8340 Frost Avenue
“Berkeley 21, Missouri
“Dear Sir:
“In reference to the proposed lease to be executed between Frostwood Drugs, Inc. and Fischer & Frichtel Construction Co. for the Carrollton drugstore, this is to advise that we are agreeable to a lease on the following terms:
“1. Area of store to be 4,500 feet, store having an approximate frontage of 60 feet by a depth of 75 feet.
“2. Rental to be $1.75 per square foot.
“3. Term of the lease to be ten years and two consecutive five-year options.
“4. Override to be calculated at 4½% of gross sales, with a minimum annual rental of $1.75 per square foot.
“Provisions for expansion to approximately 6,000 square foot store are to be handled in this manner: An adjoining space containing approximately 1500 square feet is to be leased in such a way that it can be made available to you three years from the date of your occupancy, providing a one-year written notice is given.
“It is our understanding that the group of doctors proposing the hospital clinic in the Carrollton commercial area intend to have a pharmacy. However, in our discussion with them, they have indicated that they would be willing to discuss with the operator of the drug store, some arrangement whereby their pharmacy might be operated by you. However, we do not wish to make this a condition of agreement.
“It is understood that the signature of a third party as ‘Guarantor’ will be required on the lease. Naturally, this letter of agreement is conditioned on ⅛⅞ acceptability by Fischer & Frich-tei Construction Co. of this guarantor.
“This letter is written in order to indicate the earnestness of both parties and by their signature affixed hereto, these intentions are expressed.
“Very truly yours,
“Fischer & Frichtel Construction Co.
“s/ Edward F. Fischer
“Accepted:
“Frostwood Drugs, Inc.
“By Herbert Sokolik”

In August 1959 Fischer told Sokolik that guarantors were unnecessary and that he would forward a letter so stating, but he did not.

During the latter part of October 1959, Sokolik learned that Fischer & Frichtel, Inc. had entered into an “exclusive leasing agreement” with respondent Kelly whereby he was to handle all negotiations for leases in the Carrollton shopping center and was to receive a commission of three per cent of the rents received from the tenants in the buildings to be erected at the shopping center for ten years except “upon leases already secured by Fischer & Frichtel, Inc., namely, Wetterau Grocery Company, Frostwood Drugs, and Telscher Hardware, [upon which the commission] shall be two (2) per cent if these lessees are the final ones selected for these stores.” (Bracketed insert ours.)

Later conversations occurred between Kelly and Sokolik in which the June 12 letter was called to Kelly’s attention and in December 1959 Kelly inquired whether So-kolik and Cooper would sign as individuals as well as on behalf of the corporation and showed them a different location in the shopping center for the drugstore. About the end of December 1959, Edward Fischer informed Sokolik that Fischer & Frich-tel had decided to lease the drugstore premises to respondent Blair Balk, who was then operating the Suburban Pharmacy in the vicinity of the proposed Carrollton. Sokolik insisted that Fischer perform under the June 12 “agreement.” Fischer arranged for an appointment for the next day at which a Frostwood financial statement was presented. As a result of the meeting, Fischer advised that they (Fischer & Frichtel) had not yet decided about the lease; that Kelly was able to obtain better leases than they and that Balk had agreed to a more advantageous lease; and that some of Balk’s relatives had agreed to post a cash guarantee of $100,000. In any event, Fischer was to call Sokolik about making Frostwood a new offer. Thereafter, Frost-wood received this letter, dated January 4, 1960, signed by Edward Fischer for Fischer & Frichtel, Inc.:

“Dear Herb & Gene:
“This is to let you know that, after a great deal of deliberation and discussion, we have decided that we should lease our Carrollton store to Blair-Balk.
“We are sorry to have to inform you of this, but I am sure you will feel that we must have good and valid reasons for doing so.
“With best regards, I am,”

The testimony of Eugene Cooper and of the parents of Sokolik and Cooper does not affect the issue which we deem decisive of this case and no purpose would be served in setting it forth.

The portions of Frostwood’s second amended petition quoted above demonstrate that the agreement which appellant sought to have specifically performed consisted not only of the letter dated June 12, 1959, but that the letter was in reality a statement of only part of the terms agreed upon orally. The other terms orally agreed upon were those contained in the existing Frostwood lease which was attached to the petition as Exhibit B. In other words, appellant did not set forth the June 12 letter as though it constituted the sole agreement between the parties and pray for the specific performance thereof. On the contrary, appellant affirmatively alleged that the parties further agreed (in addition to the letter, Exhibit A attached to the petition) that the lease and appellant’s occupancy would otherwise be the same as the lease and occupancy of appellant under the Frostwood lease, a copy of which was attached to and incorporated in the petition. Also attached to the petition was Exhibit C, a proposed form for a lease of the Carrollton store, as we understand, as the basis for a suggested decree of specific performance. That lease incorporated not only the written provisions of the June 12 letter but contained also provisions of the Frostwood lease made specifically applicable to the Carrollton property.

At the trial, as heretofore noted, Sokolik, appellant’s representative, testified that shortly prior to receipt of the June 12 letter, Fischer had orally agreed as to the price per square foot, the 4½% override, the 10-year term with two 5-year renewal options, and had agreed also “that the other terms of the lease would be the same as those at Frostwood,” referring specifically to the Frostwood lease, Exhibit B attached to appellant’s petition.

Appellant says in its brief, referring to appellant and Fischer & Frichtel, that “they had an agreement that all the provisions of the Carrollton lease would be the same as in the existing Frostwood lease except as otherwise provided in the agreement of June 12 * * *."

For present purposes we may assume that the June 12 letter contained the essential terms for a proposed lease and that under other circumstances, i. e., unlike those present here, the June 12 letter would constitute a specifically enforceable contract to enter into a lease. (We observe parenthetically, however, that it is not apparent how the “essential” provision for the commencement of the term of the lease may be supplied by anything contained in the letter or by parol in explanation or clarification of anything stated in the letter. See Pfeiffenberger v. Scott’s Cleaning Co., Mo.App., 144 S.W.2d 183, 188[3, 4].)

Making the assumption stated above, however, we note that there is no-language in the June 12 letter which refers to or indicates the existence of the Frost-wood lease and there is of necessity nothing on the face of the Frostwood lease, executed in 1955, which refers in any way to the June 12 letter or which does or could indicate that it forms any part of the later (3½ years later) Carrollton transaction. While a writing which consists of several separate documents may satisfy the statute of frauds, the fact that each is a part of the total writing relied upon must be shown either by express references in the documents or must appear from the contents of the documents; and, of course, the fact that two or more writings constitute part of an entire written agreement may not be shown by parol in so far as satisfying the statute of frauds is concerned. Logan v. Waddle, Mo.App., 252 S.W. 469, 470[1-3], Thus, while it is true that the Frostwood lease (the terms of which appellant alleged and proved were part of its agreement to lease) was in writing, appellant’s only evidence that the Frostwood lease constituted a part of the entire agreement was the testimony that there was an oral agreement to incorporate the terms of the Frostwood lease except as otherwise provided in the June 12 letter.

It seems apparent then that appellant has alleged and proved that the agreement to enter into a lease was partly written and partly oral. To satisfy the statute of frauds the entire agreement must be in writing and a contract which is partly in writing and partly oral is treated as a verbal contract “in determining whether the contract is within the inhibition of the statute of frauds.” 37 C.J.S. Frauds, Statute of § 181, p. 666; Quint v. Kingsbury, Mo.App., 289 S.W. 667, 669 [4],

Appellant says that its basic contention is that the letter of June 12 is the contract and that it alone and without more is enforceable; that it is not made indefinite or vague because of its failure to have •■mentioned many details usually found in -commercial leases, even though there was •specific evidence as to agreement on those “details,” i. e., the testimony that the agreement was that the lease would contain the provisions stated in the June 12 letter, plus provisions in the existing Frostwood lease.

The case of Smith v. Shell, 82 Mo. 215, involved the sale of corn. The court pointed out that it was not essential to satisfy the statute of frauds that the time and place of the delivery of the merchandise be agreed upon and that, in the absence of such an agreement, a written memorandum evidencing the sale agreement would be construed as a contract to deliver the corn within a reasonable time. But in that case, said the court, the parties had not, as the writing indicated, failed to have mentioned the time of delivery but, on the contrary, the plaintiff testified that the oral contract the parties actually made provided that the corn was to be delivered in ten days or two weeks. The court with respect to the statute of frauds as applied to that situation, said at age 219: “While it might be contrary to public policy, and defeat the very purpose in view in the enactment of the law, to permit a party who signed the contract to prove by parol that there were other stipulations than those contained in the contract; yet, if the party seeking to enforce it, will voluntarily come into court and testify that the contract contained in the written memorandum is not, in fact, the contract made, it would contravene no public policy to refuse him redress for a breach of the contract, either that actually made, or the one evidenced by the written memorandum. The contract actually made cannot be enforced, because not reduced to writing, that contained in the written memorandum should not be, because the party seeking to enforce it voluntarily declares on oath, that it is not the contract the parties made.” See also Ringer v. Holtzclaw, 112 Mo. 519, 20 S.W. 800, 802; Soper v. J. G. Strean Inv. Co., Mo.App., 253 S.W. 796, 798[2]; Williston on Contracts, 3d Ed., Vol. IV, § 575, pp. 74-76, 81-86. In Arky v. F. W. Brockman Commission Co., 185 Mo.App. 241, 170 S.W. 353, the court said at page 355: “It is quite clear that the contract sued upon and sought to be enforced was one partly in writing and partly oral. That the oral portion thereof was a subsequent agreement, supplemental to the original contract, if this be true, cannot help plaintiff. Plaintiff declared upon the ‘written’ contract as modified by the alleged oral agreement. Under plaintiff’s theory of the case, this, as a matter of pleading, was proper. See Koons v. St. Louis Car Co., 203 Mo. 227, 101 S.W. 49. Nevertheless, plaintiff cannot escape the effect of the well-established rule requiring all of the essential terms and stipulations of the contract sued upon to be evidenced by the memorandum offered to satisfy the statute.”

Present appellant may not allege in its petition and thereafter come into court and offer the testimony of its authorized representative that the contract evidenced by the written memorandum was not the contract actually made but that an oral contract was actually entered into which contained the provisions stated in the letter of June 12 plus certain provisions in an existing lease, and obtain relief in the face of the applicable provisions of the statute of frauds. That is because the contract which the pleadings and the evidence show was actually made cannot be enforced because all of its essential terms were not in writing, and the letter of June 12 may not be enforced because appellant’s representative testified that it was not the contract the parties actually made.

The Frostwood lease, attached to and incorporated in plaintiff’s petition, the provisions of which were alleged to have constituted terms of the agreement to lease, contained more than twenty matters of specific agreement not mentioned in the June 12 letter. While some of them might have been “mere details” covered in usual commercial leases, many of those provisions do not come within that description. Indeed it is difficult to understand how any lease of a space in a proposed shopping center, executed prior to the completion or perhaps even prior to the beginning of construction of the center, may be said to be a “usual commercial lease.” It seems to us that many matters would be dealt with in respect to the prospective occupancy of a space in an uncompleted shopping center which would not be mentioned in the lease of an existing storeroom or office. Be that as it may, however, the fact is that the Frostwood lease dealt with responsibility for such things as the installation of fixtures, the installation of lights in the parking area, proportionate maintenance of the parking area and repair and replacement of parking lot equipment, signs and awnings, maintenance of water pipes, heating apparatus, and air-conditioning equipment; and it included provisions that lessee would save lessor harmless from public liability and that lessor would not permit any other building it controlled within a certain area surrounding Frostwood to be used for a drugstore.

There is a diversity of opinion in the various jurisdictions as to what constitute “essential terms,” Williston on Contracts, supra, pp. 76, 77, and while it seems to us that “essential terms” in an agreement to enter into a lease must of practical necessity be determined upon a consideration of all the facts and circumstances of each case, American Mining Co. v. Himrod-Kimball Mines Co., 124 Colo. 186, 235 P.2d 804, 807 [3], certainly there can be no question in this case that many of the recited terms of the Frostwood lease were at least highly important terms of any agreement to enter into a lease of space in the prospective Carrollton shopping center, and were not “mere details” found in usual commercial leases. We need not determine, therefore, whether even “mere details,” if the parties intended that those “details” were to be constituent terms of their agreement, must be set forth in the written memorandum either specifically or by reference, because in this case it is clear that many of the terms (of the Frostwood lease) agreed upon by the parties were “essential terms” to' be included in the Carrollton lease.

Appellant relies upon Ray v. Wooster, Mo., 270 S.W.2d 743, to sustain its contention that the failure to include the terms of the Frostwood lease, either specifically or by reference, did not make the letter of June 12 incomplete because, says appellant,, it contained the essential elements of the-agreement to enter into a lease. (We have-assumed that the letter contained the essential elements of an agreement to enter into a lease but we have pointed out that the letter did not contain the essential elements of the agreement actually made.) Im the Wooster case the contention was that the written agreement there (for the sale of a farm, livestock, and farm implements)was incomplete and unenforceable because-it made no reference to such matters as whether an abstract was to be furnished and, if so, who was to pay for it, how long would be allowed for examination of the abstract, what tax adjustments would be made, what the arrangement was as to forfeiture of earnest money or for the transfer of registration papers on cattle, etc. The court, with respect to that contention, said that all essential elements of a contract of the character and sort to be there enforced were present in the written memorandum, and that “ * * * while it is true that the parties failed to agree as to the several matters hereinbefore mentioned as relied on by respondents, such failure does not preclude a court of equity in granting the relief of specific performance. The parties themselves should be permitted to determine the terms of the contract, and the court should enforce the agreement if it contains the essential elements hereinbefore mentioned. The fact that the parties did not go further and contract with reference to every possible contingency which might arise with respect to the transaction did not render the contract incomplete.” 270 S.W.2d 752.

Aside from the fact that the court was there dealing with omitted “details” and not with omitted “essential matters,” it is clear that the above-quoted portion of the opinion is not applicable to the present fact situation. That is because the parties in the Wooster case did not contract with reference to the omitted matters, while the parties in the present case orally contracted with respect to matters which were omitted from the writing relied upon.

We are of the view that the trial chancellor correctly denied appellant specific performance as prayed.

As we have heretofore noted, count 2 of the petition alleged that James Kelly and Blair Balk each, with full knowledge of the existence of “said contract,” had maliciously persuaded Fischer & Frichtel to repudiate the “said contract” with plaintiff and induced Fischer & Frichtel to negotiate a contract with and to lease the drugstore to Blair Balk. Frostwood also alleged in count 2 that as a direct consequence of the aforestated acts of Kelly and Balk, it “was required to employ attorneys to bring an action to compel the other defendants to carry out their lease agreement with plaintiff and incur other expenses in connection with the prosecution of said action all to plaintiff’s damage in the reasonable amount of $11,000,” for which amount it prayed judgment and further alleged that the averred acts were wrongful and malicious and asked punitive damages in the sum of $150,000.

We have held that appellant’s evidence demonstrated that the June 12 letter relied on as the “said contract” was not the contract actually entered into for the reason that appellant had averred and had adduced evidence to the effect that the contract to lease was in fact oral and the letter stated only part of its essential terms. The trial chancellor, upon the suggestion of appellant’s attorney and over the objection of the attorney for respondent Kelly, indicated that he would order a separate hearing on the question of damages in the event that such became necessary. No separate hearing was held and no evidence was adduced by plaintiff on the question of damages. Apparently that situation exists on the theory that inasmuch as the view of the trial chancellor was that the June 12 letter did not constitute a contract Kelly and Balk could not have induced Fischer & Frichtel to breach it. We have held that the June 12 letter relied upon was not the contract and was not enforceable. Inasmuch as appellant requested and has acquiesced in procedure which made the matter of damages under count 2 depend entirely upon the answer to the question whether it could obtain specific performance of the June 12 letter, we are of the view that no further question on damages is before us.

The judgment is affirmed.

HOLMAN and HOUSER, CC., concur.

PER CURIAM.

The foregoing opinion by COIL, C., is adopted as the opinion of the court.

All concur.


author: McDowell, judge.

text:
    Sam BEARDEN, Plaintiff-Appellant, v. COUNTRYSIDE CASUALTY COMPANY, Defendant-Respondent.
    No. 7986.
    Springfield Court of Appeals. Missouri.
    Dec. 19, 1961.

      Kearby & Calvin, Poplar Bluff, for appellant.
    Riddle, Baker & O’Herin, Veryl L. Riddle, Charles H. Baker and Edward F. O’Herin, Malden, for respondent.
   McDowell, judge.

This is an action on an insurance policy issued by defendant, Countryside Casualty Company, to recover for loss sustained when plaintiff’s house and household goods were totally detroyed by fire January 15, 1960.

Plaintiff’s petition, after alleging the issuance of the policy, dated March 1, 1959, and payment of the premium in the sum of $57.30, pleaded that while said policy was in force the dwelling and household goods covered in said policy were totally destroyed by fire; that proof of loss was made and payment thereof refused by defendant. The prayer was for the face of the policy, $12,-000, $1200 for vexatious refusal to pay and $1,000 attorney fee.

Defendant’s second amended answer admitted the issuance of the policy, payment of the premium thereon, but denied all other allegations. It pleaded affirmatively that plaintiff made false representations of material facts in his application for the policy and in the proof of loss. The specific misrepresentations in the application were: (1) That insured had never suffered a fire loss; (2) That no company had ever declined or cancelled insurance for him; (3) That he had never been convicted of a crime; and, (4) That the property insured was subject to only one mortgage.

The specific misrepresentations made in the proof of loss were: (1) That the cause of loss was unknown and the loss did not originate by his own acts; (2) That the original cost and value of insured’s property at the time of fire were misstated; (3) That no other person but one, R. W. Adams, had any interest in insured’s property.

The answer further pleaded that defendant has returned the premium with interest thereon to plaintiff; that it has paid $4034.-03 to R. W. Adams under the terms of the policy.

The prayer was for discharge of defendant and costs.

Plaintiff’s second amended reply was a general denial of affirmative defenses pleaded in answer. It admitted receipt of checks returned for premium paid with interest and tendered the same into court; admitted defendant paid to Adams the amount claimed in the answer and consented that such payment be set off against any judgment awarded plaintiff.

The reply pleaded that plaintiff made truthful answers to all questions asked by defendant’s agent in the application for insurance and that he signed the same without knowing whether the agent wrote in the correct answers.

This was a jury-tried case. At the close of plaintiff’s evidence the trial court sustained defendant’s motion for a directed verdict. Motion for new trial was overruled and judgment entered for defendant. Plaintiff appealed.

This action, as originally filed, named as defendants, Countryside Casualty Company and M. F. A. Mutual Insurance Company. At the beginning of the trial plaintiff dismissed as to M. F. A. Mutual Insurance Company.

The sole issue presented for decision in this case is, did plaintiff’s evidence show as a matter of law that he made misrepresentations of material facts in the application for insurance which rendered the oolicy voidable? It is contended by the defendant that the trial court did not err because plaintiff’s evidence further shows,, as a matter of law, that plaintiff was guilty of willful false swearing with intent to deceive regarding material matters in the proof of loss.

It is plaintiff’s theory that the application for insurance was made in the office of defendant’s agent; that the agent asked the questions and inserted the answers therein and that plaintiff made truthful answers to all questions asked; that plaintiff signed the application without reading it; that if the answers inserted therein were wrong it was due to the fraud, negligence or mistake of defendant’s agent without collusion with the applicant and the company is estopped to deny liability on the basis of the answers.

We will state such parts of the evidence as necessary for a decision of the issues involved.

On March 1, 1959, defendant issued to-plaintiff the policy of insurance sued on insuring plaintiff’s dwelling house for $8500 and household goods for $3500 against loss by fire and received from plaintiff $57.30 premium.

To secure the issuance of this policy plaintiff signed a written application in the office of defendant’s agent, John A. Frazier. The agent asked the questions contained1 therein and filled in the answers thereto. Plaintiff signed it without reading or knowing whether all the questions had been answered or that such questions had been truthfully answered.

This application contained the following questions and answers thereto:

“Is Property mortgaged? Yes. Amount of Mortgage? $4250.00.
“Name of mortgagee? R. W. Adams.
“5. Have you ever suffered a fire loss? No.
“6. Has any company ever cancelled or declined (Fire, Theft or Liab.) insurance for you ? No.
"7. Have you even been convicted of a crime ? No"

The application contained the following provision: “The undersigned applicant hereby applies for an insurance policy with the coverages indicated herein, ON THE BASIS OF THE REPRESENTATIONS MADE IN THIS APPLICATION.”

Plaintiff testified that defendant’s agent, Frazier, asked him a number of questions. He gave this evidence:

“Q. Did he ask you if this property to be insured was mortgaged ? A. Yes, sir.
“Q. And what did you tell him? A. I gave him the amount.
“Q. And you had a mortgage on the house? A. Yes.
“Q. Did you tell him that Mr. R. W. Adams of Van Burén had a mortgage for $4,250.00 at that time? A. Part of the amount was paid.
“Q. Did you tell him about any other mortgages? A. No, sir. He never asked me about any other.
“Q. Were there any other mortgages on the property you were attempting to insure? A. There was more or less on some of my furniture that was originally from the tavern, fixtures.”

Plaintiff identified two chattel mortgages, signed by him, mortgaging his household goods, which were against said property at the time he signed the application. One mortgage was to Standley Gas & Electric Company, which, plaintiff testified, had a balance due of $1800.00; a second mortgage was to Superior Loan Company of Poplar Bluff for $480.00.

As to previous fire loss, plaintiff testified that his house trailer burned in 1937 and he collected insurance thereon. He testified’he told defendant’s agent of this loss at the time of the making of the application.

As to the cancellation or declining of other insurance, contained in the application, plaintiff testified he was not asked this question but admitted that he had had automobile insurance, including fire coverage, cancelled in 1953; that at the time of the application for insurance he had attempted to renew a policy against his home and household goods in another company for $12,000; that the company refused to write the policy for that amount but offered to write it for $8500. Plaintiff testified:

“Q. Isn’t it true that they declined to insure you in March, 1959, your house and furniture for $12,000.00? A. They would not insure it.”

The evidence was that in January, 1960, the house and all of its contents were totally destroyed by fire. Plaintiff made proof of loss, signed and sworn to by him. It contained a statement as to the interest of insured in the property and the answer thereto stated “No other person or persons had any interest therein or encumbrance thereon, except: R. W. Adams * * *". The truth was that there were at that time outstanding two chattel mortgages, one with a balance due of $1800.00 and the other for $480.00. Regarding this misstatement of fact, plaintiff testified that he did not realize he was required to list all mortgages.

Immediately after the fire defendant’s adjuster took a written statement from plaintiff, which is in evidence as defendant’s exhibit 7. It was signed by plaintiff and contained the following answer: “I do not owe anything on any of my furniture other than my kitchen equipment which was removed from my tavern”. Plaintiff admitted he signed this statement but said he did not recall telling the adjuster that.

It is admitted by plaintiff that defendant tendered to him the premium paid for the insurance with interest totalling $61.29. He did not cash the checks but tendered them into court.

In our opinion we will refer to appellant as plaintiff and to respondent as defendant, the position occupied by the parties in the lower court.

In determining' the sufficiency of the evidence to sustain a submitted theory of action or defense litigants, plaintiffs or defendants, are entitled to a consideration of the evidence and the reasonable inferences therefrom in the most favorable light. Rudin v. Moss, Mo.Sup., 349 S.W.2d 893, 894 [1]; Christie v. Cas Service Co., Mo.Sup., 347 S.W.2d 135, 137 [1]; Adler v. Ewing, Mo.App., 347 S.W.2d 396, 398 [1]; Bays v. Jursch, Mo.App., 340 S.W.2d 430, 433 [3],

Plaintiff relies on the rule of law declared in Zeilman v. Central Mut. Ins. Ass’n, 224 Mo.App. 145, 22 S.W.2d 88, in which the court stated on page 90 [2] of the opinion:

“Does the failure of Griffin to insert the information that insured gave him estop defendant from insisting upon a breach of the warranty contained in the application ? The rule in reference to this matter is well stated in 32 C.J. pp. 1333, 1334:
“ ‘Where the facts have been truthfully stated to its agent but by fraud, negligence or mistake are misstated in the application, the company cannot, according to the generally accepted rule, after accepting the premium and issuing the policy, set up such misstatements in the application in avoidance of its liability, where the agent is acting within his real or apparent authority, and there is no fraud or collusion upon the part of the insured.’
* * * * * *
“However, in order for this rule to be brought into play it must appear that the insured did not know what was in the application when she signed it. In other words that she neither read the application after it was made out nor saw the answers inserted therein. It thus appears that in order for the defendant to be estopped there must have been some concealment or deception practiced by Griffin upon the insured. Thomas v. Modern Woodmen of Am., 218 Mo.App. 10, 260 S.W. 552. It therefore was incumbent upon plaintiff to show that the insured was ignorant of that fact that the application did not contain the information she had given Griffin when she signed it.”

This doctrine was affirmed in Longo v. John Hancock Mutual Life Ins. Co., Mo.App., 142 S.W.2d 871.

It was stated in Toler v. Missouri Ins. Co., Mo.App., 243 S.W.2d 788, 792 [7]:

“Where the insured at the time of applying for a policy of insurance truthfully states to the agent the facts pertaining to the risk and the agent inserts in the application mistaken or intentionally false statements the insurer cannot set up such misstatements in avoidance of the policy.” (Citing much authority).

An application for a policy of insurance is an offer, intended to be relied upon and to become a part of the contract when accepted. Absent fraud or mistake one is bound by his written contract and an application as an offer is contractual in nature. Dickinson v. Bankers Life & Casualty Co., Mo.App., 283 S.W.2d 658, 662; Haman v. Pyramid Life Ins. Co., Mo.App., 347 S.W.2d 449, 454 [2, 3]; Minich v. M. F. A. Mutual Ins. Co., Mo.App., 325 S.W.2d 56, 57 [1-3].

In the instant case plaintiff testified that he answered truthfully all questions asked him by defendant’s agent regarding the making of the application for the policy of insurance. He testified that he signed it without reading it because he had faith in defendant’s agent; that he did not know what answers the agent wrote in the application or if all the questions contained therein were asked. He testified that, to the question as to mortgages on the property, he told the agent he had a mortgage on his home and gave him the name of the mortgagee and the amount of the mortgage; that he did not inform the agent that at that time there were two chattel mortgages against the household goods being insured on which there was due some $2280.00. His reason, he said, for not giving that information was that the agent did not ask him. There is no testimony that the agent had any knowledge of these mortgages when he filled in the answer to this question. Plaintiff testified that the question contained in the application, “Has any company ever cancelled or declined (Fire, Theft or Liab.) insurance for you?”, which had an answer of “No”, was not asked him so the rule of law governing plaintiff’s contention, as set out above, is not complied with where the evidence shows that the true facts were not stated to the agent at the time the application was filled out or that there was evidence that the agent had knowledge of such facts.

In Gooch v. Motors Insurance Co., Mo.App., 312 S.W.2d 605, 609 [2, 3], it was stated: “In the instant case plaintiff did testify that when he signed the application for insurance he did not read the answers to the questions as to his age or as to the model of the trade-in car, but he made no denial that the answers were not plainly shown on the application or that there was any concealment or deception practiced by either Johnson or his secretary upon the insured. The application in evidence shows that these statements were made in large letters on white paper, plainly visible to anyone who wanted to see them and plaintiff admits that both he and his father signed the application. Plaintiff was a high school graduate, had been a member of the Armed Services and, at the time of this suit, was a member of the police force in Creve Coeur, Missouri. Plaintiff’s evidence wholly fails to justify a plea of estoppel. There is not the slightest evidence that concealment or deception was practiced by agent, Johnson, or by his secretary in securing the written application for the insurance. The rule of law is that, in absence of fraud or mistake, one is bound by the written contract, which, when applicable, defines the limits of the contract. One who can read and does not read is foreclosed by his own negligence, and while law affords everyone a reasonable protection against fraud in dealing, it is not an indulgent guardian which can go to romantic length of giving protection against consequences of indolence, folly or careless in difference to ordinary and “accessible means of information. Dickinson v. Bankers Life & Casualty Co., Mo.App., 283 S.W.2d 658.”

In this same case, page 609, 68 S.W.2d 873, the court quotes from Muller v. Mutual Benefit Health & Accident Ass’n, 228 Mo.App. 492, 68 S.W.2d 873, 882(5), the law as follows:

“ ‘It is true that a person who is competent to contract is, ordinarily, presumed to know the contents of a contract he signs; and the fact that he does not read it or does not have it read to him before signing does not rebut the presumption. * * * It is only where fraud, accident, or mistake intervenes that one may be relieved under such circumstances. In the absence of fraud, accident, or mistake appearing, the law concludes the matter in accord with the terms of the writing that the party has sighed; for, if he can read, he must do so; and, if not, then it devolves upon him to have another read or explain it to him.’” (See authorities cited).

This rule of law is so well settled that it is unnecessary to go into the many authorities sustaining the same. We find from the record that the fact, that defendant’s agent propounded the questions contained in the application for the policy of insurance in issue and filled in the answers to such questions does not relieve plaintiff from knowing the contents thereof and he is bound by such answers unless his evidence shows that he revealed to the agent at the time the true facts or that the agent had knowledge of such facts. The fact that plaintiff trusted the agent to put in the correct answers did not relieve him from his negligence in not reading the application before he signed it. Plaintiff, in a letter to the company, stated his qualifications and we think his .evidence shows that he was able and had opportunity to read the application but did not.

The answers given to the two questions above stated in the application failed to reveal the truth and were in so concealing the truth in the first answer as to the mortgages misleading to the company and the question as to having other insurance can-celled or declined, the answer is wholly untrue. So we find that plaintiff is bound by these representations.

There is but one other question relating to these representations and that is whether the misstatements to the questions asked in the application were material as a matter of law so as to justify the trial court in directing a verdict.

Representations regarding mortgages on the insured property are material as a matter of law.

In Buck v. Stuyvesant Ins. Co., 209 Mo.App. 302, 237 S.W. 840, 842[4] the law is stated:

“The next question for consideration is whether or not the representation in the application for insurance that the property was not mortgaged would avoid the policy, as a matter of law. It is usually a question for the jury as to whether or not misrepresentations materially affect the risk, depending largely on the kind and character of misrepresentations. Boggs & Leathe v. American Insurance Co., 30 Mo. 63; Tebeau v. [Globe & Rutgers] Fire Ins. Co., 271 Mo. 626, 197 S.W. 130, 2 A.L.R. 1041. In such cases it should appear that the insurer would not have issued the policy, or would have charged a higher premium, if he had known the facts. * * * But where the representations were that the property was not mortgaged, when in fact it was mortgaged for the full value, such misrepresentations, under the facts in evidence here, were material to the risk, as a matter of law, and voided the policy. Hollenbeck [& Co.] v. [Mercantile Town Mutual Fire] Ins. Co., 133 Mo.App. 57, 113 S.W. 217; Cagle v. [Chillicothe Town Mutual Fire] Ins. Co., 78 Mo.App. 215; * * *."

In Stoddart v. National Liberty Ins. Co., Mo.App., 251 S.W. 398, 401 [4], the law is stated:

“I think there is no question but that the existence of the mortgage was a material risk, and that the question of its materiality should not have been submitted to the jury. The following cases hold that a mortgage is a material risk: * * *." (See authorities cited.)

In Gooch v. Motors Insurance Co., supra, 312 S.W.2d page 608, the court quoted from Berry v. Equitable Fire & Marine Ins. Co., Mo.App., 263 S.W. 884, 886 [1], the law as follows:

“ ‘A fact material to the risk within the meaning of the word “material” as used in the statute is one which, if communicated to the insurer, would cause refusal to insure, or, if accepted and “ ‘policy issued, the rate would be higher.’” (Citing authority).

In Minich v. M. F. A. Mutual Insurance Co., Mo.App., 325 S.W.2d 56, 58 [4] the law is stated:

“A representation that he had not previously had a policy cancelled was material to the risk and grounds for avoidance of the policy if untrue. State Farm Mutual Automobile Insurance Co. v. Gaekle, D.C., 131 F.Supp. 745, 746; Teich v. Globe Indemnity Co., Mo.App., 25 S.W.2d 554, 556-557; Maryland Casualty Co. v. Eddy, 6 Cir., 239 F. 477, 480; Harris v. Allstate Insurance Co., Tex.Civ.App., 249 S.W.2d 669, 672-673; * * *”. (See other authorities cited.)

In 29 Am.Jur., § 701, p. 963, the law is stated:

“The generally accepted test for determining the materiality of a fact or matter as to which a representation is made to the insurer by an applicant for insurance is to be found in the answer to the question whether reasonably careful and intelligent underwriters would have regarded the fact or matter, communicated at the time of effecting the insurance, as substantially increasing the chances of loss insured against so as to bring about a rejection of the risk or the charging of an increased premium. * * *"

In the instant case the misrepresentations were regarding mortgages or encumbrances on the property. Our appellate courts have held that such misrepresentations are material as a matter of law and that they will avoid a policy. Likewise, we think that misrepresentations in the application for insurance regarding prior cancellation of insurance are material to the risk as a matter of law. See 29A Am.Jur. § 969, p. 159; 45 C.J.S. Insurance § 534, p. 275.

We find that the trial court was justified in sustaining the application for directed verdict at the close of plaintiff’s case because of the misrepresentations discussed herein

It is unnecessary to consider the other assignments in defendant’s brief.

Judgment affirmed.

STONE, P. J., and HUNTER, Special Judge, concur.

RUARK, J., not participating.


author: HAMILTON, Justice.

text:
    CITY OF EL PASO, Petitioner, v. Gene DONOHUE, Trustee, et al., Respondents.
    No. A-8378.
    Supreme Court of Texas.
    Jan. 3, 1962.
    Rehearing Denied Jan. 31, 1962.
    Travis White, City Atty., El Paso, Robert J. Galvan and John C. Ross, Jr., Assts. City Atty., El Paso, for petitioner.
    Kemp, Smith, Brown, Goggin & White, Joseph J. Rey, El Paso, for respondents.
   HAMILTON, Justice.

The respondents, Gene Donohue, Trustee, et al., applied to the City Planning Commission of El Paso to have Lots 13 to 32 in Block 30, Woodlawn Addition to the City of El Paso, rezoned from A-3, which is restricted to residences and apartments, to C-4, which provides for commercial construction. The City Planning Commission' denied the rezoning application. Respondents appealed to the City Council of El Paso. The City Council denied the application. Respondents then brought suit in the; District Court of El Paso County to have the ordinance declared invalid as to respondents’ property. That court held that the action of the City in refusing the appli-. cation was arbitrary and unreasonable, and. entered judgment decreeing that the zoning ordinance in so far as it applies to respondents’ property in Block. 30, Woodlawn Addition to the City of El Paso, El Paso County, is unreasonable, arbitrary and void. From this judgment the City of El Paso prosecuted its appeal to the Court of Civil Appeals, which court affirmed the judgment of the trial court. Tex.Civ.App., 344 S.W.2d 185, 188. The City of El Paso perfected its appeal to this court.

The question before this court is whether under the record in this case there were any issuable facts or conditions which would authorize the City Council of El Paso to exercise its discretion in determining whether or not respondents’ property should be rezoned from residential and apartments to business. The trial court and the Court of Civil Appeals have held that the City Council had no discretion in the matter, and held as a matter of law that the ordinance was invalid as to respondents’ property. We do not agree with these holdings.

The respondents contend that the property in question under its present zoning, that is, for residences and apartments only, is unsuitable for such purposes, and that under such zoning restriction the property has little or no practical value, which amounts to a confiscation of the property. In support of these contentions the respondents rely on the testimony of a number of real estate and mortgage loan company men.

The real estate men testified in effect that the property is unsuitable for such purposes because of the following conditions and circumstances: Block 30, in which the property in question is located,. adjoins Paisano Drive; Paisano Drive is a six-lane, divided thoroughfare which is designed to carry fast traffic, and the speed limit on said drive is forty-five miles per hour for approximately a mile east and a mile west of Block 30; a drainage ditch located some one hundred feet to the southwest of the property at times .gives off unpleasant odors; the city sewage disposal plant, which gives off unpleasant odors, is some seven or eight blocks southeast; a baseball park and Washington Park, which has various recreational and amusement facilities, are located nearby; the Cordova Bridge across the Rio Grande into Mexico is some eight or nine blocks south. There are also some five or six nonconforming small businesses located within the area.. Directly to the west of Block 30 and across a street is a gasoline filling station and truck stop which is zoned commercial. Some several blocks to the east on Paisano Drive is located the City Coliseum, where various forms of entertainment, including rodeos, from time to time are held.

In the opinion of the real estate witnesses the large volume of traffic which Paisa-no carried and the speed at which the traffic was allowed to move, the unpleasant odors from the city sewage disposal plant and the drainage ditch, as well as the large crowds gathering at the coliseum and the baseball park, made the area undesirable for residential purposes. They testified that the market value of 25-foot lots in Block 30 was from $500.00 to $750.00 under the present zoning, that if said property were commercially zoned it would be worth from $2500 to $5000 per lot. The mortgage and loan company people testified that the area was unsuitable for individual residences and apartments, and that they would not recommend that loans be made for building under the present zoning.

The city contends that the area is suitable for the purposes for which it is presently zoned and that the zoning of the property in Block 30 for commercial purposes would be detrimental to the residents of the area in question. The city further contends that the zoning of property on Paisano as commercial would cause traffic congestion and would defeat the purpose for which Paisa-no was built, that is, to facilitate the movement of traffic into the downtown section and out of the downtown section, as well as traffic through the city.

In addition to several witnesses who were residents living near Block 30 testifying that they objected to the rezoning of Block 30 because it would be detrimental to their homes, the city used one witness who had been a member of the City Planning Commission for ten years and was at the time of testifying its chairman. Another witness used was the Director of Planning of the City of El Paso. He had been executive secretary of Walla Walla, Washington, Planning Commission from 1947 to 1952, was a Director of Planning of Spokane County, Washington, from 1952 to 1957, was Planning Director of the Puget Sound Governmental Conference in 1957, and was consultant to a number of cities and to legislative committees of the State of Oregon. The City also used a city building official who had had several years’ experience in engineering and design field supervision.

The Chairman of the Planning Commission testified that Paisano Drive was built about ten years previously at a cost of several million dollars for the purpose of relieving the traffic on Alameda Street, which carried U. S. Highway 80 traffic, and was designed to move the traffic rapidly through the city; that to zone property on Paisano as commercial would lead to congestion of traffic and defeat the purpose for which Paisano Drive was built at such a tremendous cost. He testified that he had made a study of zoning problems in El Paso for ten years, that the area in question is properly zoned as residential, and that it is suitable for such purposes; that it was imperative to maintain Paisano Drive for fast moving traffic and that it was a policy of the Planning Commission to recommend that it be so maintained at least until an expressway is provided through the city.

The director of city planning testified that the plan and purpose of the city in building Paisano Drive was for a major traffic carrying facility, and that purpose has been accomplished reasonably well. It was his opinion that the area in question was zoned suitably, that it was a growing residential section, that many new houses were being built in the area and in fact at the time of trial plans were being made for the building of a new school at a location several blocks southeast of the respondents’ property to take care of the growing needs of the children of school age; that individual residences were located on the property across Paisano Drive to the north, to the south across Central Avenue from Block 30 were a number of residences. On the very property which is sought to be rezoned are a number of residences which are occupied and have been for many years. Across Hammett Drive to the east is a housing project composed of some forty apartment buildings occupied by some three hundred families, with a total of approximately eleven hundred occupants; that in addition to the new school being planned there are two schools a short distance east, one a high school and the other an elementary school. Washington Park is available for recreation for children in the area. It was his opinion that to serve the best interests of the people living in the area and the welfare of the public in general the zoning should be maintained for residences and for apartments.

The city building official testified that the area was suitable for residences and apartments. He said the area was composed of residents of low income and modest homes, that similar areas have been able to get financing for new buildings.

The Executive Director of the Housing Authority which operates the project just east of respondents’ property and the Sherman project farther east on Paisano, testified that he had been engaged in that type of work for seven years and that he was familiar with the area, that he appeared before the Planning Commission and the City Council protesting any change in the zoning of the lots in Block 30 from A-3 apartments and multiple residential and dwellings to C-4 commercial; that he was representing the Board of Directors of the housing authority which opposed such rezoning; that these housing authority projects were located in this area because it was a residential area and it was desired that it be kept that way. He testified that the zoning which the area had was suitable and that the granting of this application for rezoning of the property in Block 30 would be detrimental to the neighborhood. He testified that in his opinion the area was suitable for privately owned apartments; it is close to town, close to schools, and has many advantages for residential purposes for low income families.

The Court of Civil Appeals in reaching its decision in this case necessarily had to disregard the testimony of the witnesses for the City of El Paso. The opinion states:

“There was no contradicting testimony by other real estate or mortgage company experts — only the testimony of the City representatives as outlined above. This does not, we think, present a situation where reasonable minds could or should differ, but presents, rather, a situation where the experts in the field say one thing and three City representatives another.”

No authority is cited supporting the proposition that only real estate and mortgage company experts are qualified to testify about matters affecting the validity of a zoning ordinance, and we know of none. The governing body of a city, in discharging its legislative functions with regard to city planning and zoning, is entitled to consider all the facts and circumstances which may affect the property and occupants of the area involved, as well as the. general welfare of the people of the city as a whole, and is entitled to consider the opinions of experts in the field of city planning as well as the opinions of real estate and mortgage company experts. It follows, that in determining whether or not a governing body of a city has abused its discretion in the exercise of its legislative functions dealing with city planning and zoning, the courts are not limited to the testimony of real estate and loan company experts.

In City of Waxahachie v. Watkins, 154 Tex. 206, 275 S.W.2d 477, at page 480, this court said:

“ * * * And the ‘extraordinary burden’ rests on one attacking the ordinance ‘to show that no conclusive, or even controversial or issuable, facts or conditions existed which would authorize the governing board of the municipality to exercise the discretion confided to it.’ ”

To uphold the position of the respondents in this case we must hold that there were no controversial or issuable facts or conditions existing which would authorize the City Council of El Paso to exercise a discretion in determining whether or not respondents’ application for rezoning should be granted. We must say as a matter of law that the property in question is unsuitable for residential purposes and is in fact business property. This we cannot say when we consider all of the testimony in the record before us.

Probably the case most directly in point with the instant case is the City of Dallas v. Lively, 161 S.W.2d 895 (Tex.Civ.App.) error refused. There the property was bounded by two heavily traveled highways. The adjacent property on one side was an old residence abandoned and uninhabitable. Across the street was a Magnolia service station. The property was valued from nothing to $1500 as residential property, but by rezoning for a filling station it would be worth $12,500 to $15,000. There was evidence that it was unfit for residential purposes on account of the traffic on the two highways. The question of confiscation was raised. The district court in that case held the zoning void, as did the district court in the instant case. The Court of Civil Appeals in the Lively case, however, reversed and rendered on the ground that the plaintiffs had not carried their “extraordinary burden” of showing that reasonable minds could not differ under the facts of the situation. See also the case of Edge v. City of Bellaire, 200 S.W.2d 224 (Tex.Civ.App.), error refused.

Respondents argue in effect that since the property in question would be much more valuable commercially zoned, the failure of the city to rezone amounts to a confiscation of respondents’ property. In support of this argument they cite the case of City of West University Place v. Ellis, 134 Tex. 222, 134 S.W.2d 1038. That case involved the zoning of a 50-foot lot as residential, when at the time it was actually in the business district. The lot faced on a main thoroughfare of the city and had a beauty parlor located on one side of it and a liquor store on the other. The court held that where the zoning of a business lot as residential results in destroying its value, such action amounts to confiscation. In the instant case the property in question was in a residential area when first zoned as residential and the area is still predominantly residential, with residential property on three sides and even with residences on some of the property itself. Furthermore, there was evidence that this property has substantial value under the present zoning. The evidence, however, was un-controverted that it would be much more valuable if changed from residential to commercial zoning. This in itself does not amount to confiscation. The argument made here was rejected in Dallas v. Lively, supra.

We reverse the judgment of the Court of Civil Appeals and of the district court .and render judgment that respondents Gene Donohue, Trustee, et al., take nothing.


author: PER CURIAM.

text:
    J. A. HONEA, Petitioner, v. Elmo LEE et al., Respondents.
    No. A-8663.
    Supreme Court of Texas.
    Dec. 6, 1961.
    Rehearing Denied Jan. 31, 1962.
    C. O. McMillan, Stephenville, Abney, Hammett & Lynch, Lampasas, for petitioner.
    Sam Cleveland, Joseph A. Chandler, Stephenville, for respondents.
   PER CURIAM.

The opinion of the Court of Civil Appeals (349 S.W.2d 110) reflects that the Court sustained Lee et al., appellants, in their contention that the trial court erred in failing to render judgment in their favor against Honea for $4,000.00, being one-half of the proceeds of a fire insurance policy covering a house destroyed by fire.

Jurisdiction of this Court has been properly invoked by Honea’s application for writ of error wherein the point is presented that the Court of Civil Appeals erred in rendering judgment that Lee et al. were . entitled to any of the proceeds from the fire 1 insurance policy on the house. We approve the holding of the Court of Civil Appeals on this point, and, had this been the only ■point decided by the Court of Civil Appeals, this Court would refuse the application for writ of error without comment. • Howevers the Court passed upon two points 1 adversely to Lee et al.' No application for ■ writ of • error has be.en filed in this Court complaining o'f such rulings, therefore,- we have no authority to decide the questions. Accordingly, the application for writ of . error is refused, no reversible error.