author: MAUGHMER, Commissioner.

text:
    Hiram L. JONES et al., Appellants, v. Maud EILENSTINE et al., Respondents..
    No. 23786.
    Kansas City Court of Appeals. Missouri.
    June 3, 1963.

      Sevier & Turnage, Liberty, for appellants.
    Williams, Norton & Pollard, North Kansas City, for respondents.
   MAUGHMER, Commissioner.

This is a suit in equity to set aside residential restrictions as to twelve and a fraction lots located in Block 4, Winnetonka Heights, a subdivision in Clay County, Missouri. The numerous defendants are the owners of the rest of the property in the subdivision. The trial court found against plaintiffs and refused to nullify the restrictions. Plaintiffs have appealed.

In August and September, 1940, the then owners of all of the land in Winnetonka Heights signed the use limitations and the same were filed in the office of the recorder of deeds. These restrictive covenants, to run with the land, provided, in part: “Lots 79, 80, 81 and 82 in Block 1, may be used for business purposes and all other lots shall be used only for .residential purposes.” The residences were restricted to single-family dwellings of one or two stories, were required to contain at least 600 square feet and to cost not less than $2500. The construction of private garages for two cars and chicken houses to accommodate no more than 48 chickens were authorized. Occupancy was restricted to members of the Caucasian race and “noxious or offensive trade or activity” was forbidden. Three property owners, Mr. Phillips, Mr. Horn and Mr. Burns were named as an Enforcement Committee to serve until 1945, when a new committee was to be elected. No election of committeemen has ever been held. One of the original members has moved away. During the early Forties the committee drove by recently constructed homes and inspected them but no building plans were ever submitted in advance. These restrictions were to continue in force until January 1, 1970 and then be automatically extended “unless a majority of the then owners agreed to a change * * ”.

Plaintiffs’ acreage, as to which they seek removal of the .restrictions, primarily as to the residential building requirements, is in the form of a rectangle. Its boundaries are: A frontage of 277.74 feet on Vivion Road to the north, 150 feet on Elmwood Avenue to the west, Lawn Street on the east, and on the south by two tracts owned by defendants Diels and Mattys.

Plaintiff Jones bought part of this property on December 1, 1954 for $3,750. It contains a residence which Jones occupied for a few years. It is now rented as a residence. Jones has improved the house and estimates his present cost at $7,500. During 1961, plaintiffs contracted to sell their property to Dr. Marion J. Biondo, an osteopathic physican who, according to the testimony, planned to construct a “medical building” on it. The agreed selling price to Dr. Biondo is $27,500, but the sale is contingent upon the sellers’ securing (1) zoning permission from the municipal authorities and (2) removal of any restrictive covenants which would prohibit the contemplated use.

In 1940, Winnetonka Heights was a quiet area only sparsely built up and a likely residential neighborhood. In 1940, Vivion Road was a two-lane highway with little traffic. It has now been widened to four lanes and has become a busy thoroughfare. There has been some business and commercial development along Vivion Road. This development apparently began at its intersection with Antioch Road which is about one and one-half miles west of plaintiffs’ property. There the Antioch Shopping Center has been built. These nonresidential enterprises have moved eastward along Vivion Road towards plaintiffs’ property, and include two churches and a funeral home. One block west of plaintiffs’ property is a real estate office housed in a residence. Directly across Vivion Road is the Foxwood Shopping Center containing about 15 stores and offices. Across the road and east from the shopping center is a post office and a service station. There was testimony that on Lots 63, 64, 65, 66, 67 and 68, Winnetonka Heights, there were two-family dwellings which had been there for “six or eight years”. Among its other activities the Foxwood Shopping Center contains a drive-in-restaurant. The Blue Valley Savings & Loan building is located on Lots 79 and 80 (which were reserved for business) but its parking lot occupies Lots 73 to 78, which were not reserved for business. The defendant Mattys, whose lot adjoins plaintiffs’ on the south, has for some time operated a trash hauling business therefrom, including the parking and servicing of his trucks.

Qualified realtors, appraisers and loan representatives testified that plaintiffs’' property was no longer suitable 'for residential purposes and that its highest and best use is now commercial. They expressed doubt that builders of residences in this area would be eligible for or could secure FHA or other loans. Defendants offered" no expert testimony controverting these expressed conclusions.

During the year 1961, a petition asking that plaintiffs’ property zoning be changed from R-l to C-l, with the exception that “owners agree that a filling station will not be within the meaning of C-l classification”, was filed with the Zoning Board of Kansas City, Missouri. This petition was signed by all of the approximately 200 property owners in Winnetonka Heights except three. The three who did not sign were: defendants Mr. and Mrs. Diels, whose property abuts plaintiffs’ on the south, Mr. and Mrs. Phillips (Mr. Phillips was an original board member) and a Mr. Zeller. Two of the signers said they signed only after representations made to them by the plaintiff Jones that all other property owners had signed. On December 22, 1961, the City Council of Kansas City, Missouri passed Ordinance No. 26,845 by which the property involved in this controversy was rezoned from “District R-16, one-family dwellings to District C-l, Neighborhood Retail Business”. The City Council passed this rezoning ordinance in spite of the fact that the City Plan Commission had recommended that it be disapproved.

From this evidence the trial court found: (1) “There has been a substantial change and a radical change in the surrounding territory, particularly to the north of Win-netonka Heights”; (2) “There would be a hardship upon the plaintiffs by the enforcement of these particular restrictions”; (3) “The restrictions are of substantial value to the residents of Winnetonka Heights and the court finds that the retention of the restrictions would be of such benefit” and (4) “That the best use of the land is for other than residential use”. Because of its third finding the court denied plaintiffs’ petition.

This being an equity case we consider it de novo, but giving due deference to the findings of the chancellor. Likens v. Sourk, Mo.App., 263 S.W.2d 462, 463, and Boeving v. Vandover, 240 Mo.App. 117, 218 S.W.2d 175, 177.

Broadly speaking, there are two types of actions involving restrictive covenants: (1) Where the owner of restrictive property seeks affirmative relief such as we have here, and (2) Where judicial enforcement of a restriction is sought by way of an injunction against a breach. An analysis of this subject may be found in 4 A.L.R.2d 1111, giving these general conclusions :

“While restrictions in deeds are not favored in law, they will be construed as found, and it is a primary rule that a building restriction will be upheld wherever it remains of substantial benefit to the parties objecting to its violation, provided they are not es-topped by their conduct from making such objections, (p. 1114).
* * * * * *
“But despite the tendency of some American courts to adopt a doctrine of comparative benefits, and while a radical change in conditions and in the neighborhood surrounding restricted property will deter practically all American courts from granting in-junctive .relief, an analysis of the cases as a whole discloses that equity will enforce restrictive covenants imposed for the benefit of the complainant’s property, if they remain of substantial value, notwithstanding a resulting hardship to the servient estate, where the complainant comes into court with clean hands and guiltless of laches, waiver, or estoppel, (pp. 1114 — 1115).
⅜ ⅜ 5jí i{C ⅜ ⅝
“On the theory that only the granting of equitable relief and not the binding force of a restrictive covenant is affected by a change in the character of the neighborhood, the earlier American decisions took the position that changed conditions could be invoked only as a defense to an action to enforce such restrictions by injunction or to enforce a forfeiture and not as grounds for affirmative relief against such restrictions prior to a breach thereof. This earlier view has generally been discarded, particularly since enactment of declaratory judgment statutes or other statutes specifically authorizing actions to settle the existence and validity of any restriction appearing in a chain of title and to clear up doubts and disputes concerning it. (p. 1115).
******
“To sum up, courts of equity, in passing upon cases of this character, grant or withhold injunctive relief depending upon the accomplishment of an equitable result in the light of all the circumstances surrounding the particular case, and grant or withhold affirmative ■relief depending upon whether the restrictive covenant remains of substantial benefit to the dominant estate or whether its purpose has been defeated by a radical change in the character of the neighborhood”, (pp. 1115-1116).

The trial court predicated its legal conclusions upon the holding in Rombauer et al. v. Compton Heights Christian Church et al., 328 Mo. 1, 40 S.W.2d 545, 552, 553 (1931). There an injunction restraining erection of a church in an area restricted to residences was sought. The Supreme Court directed issuance of the injunction and stated that the mere fact that the property would bring a higher price, if freed from the restrictions, was insufficient reason to strike down the restrictions. The court there stated the general rule as follows:

“When, however, the restrictive agreement is induced by the then existing condition and surroundings of the realty in the covenanted area, and assumes its continued availability for particular uses, if a radical change takes place in the whole neighborhood such as defeats the purpose of the restrictions and renders their enforcement inequitable and oppressive, equity will not enforce them, but will leave the complainant to his remedy at law.
⅜ ⅝ ⅜ ⅜ ⅜ ⅜
“No hard and fast rule can be laid down as to when changed conditions have defeated the purpose of restrictions, but it can be safely asserted the changes must be so radical as practically to destroy the essential objects and purposes of the agreement. Thus an urban tract may be dedicated to residential use under certain restrictions indicating an intention to establish a secluded district for high-class homes.
It is inevitable that with the lapse of time the march of progress and the shifting and growth of the city the forces of disintegration will be at work, the houses architecturally and otherwise will become more and more out of date, other residential districts still more pretentious may be laid out, and changes may crowd about, outside. But the parties must be deemed to have anticipated these things and to have intended to combat them as far as possible. And so, if later the necessity of invoking the restrictive covenants arises, the mere fact that, because of changed conditions, the restrictions are less valuable than they once were, will not prevent their enforcement if the district still retains its essential character and the restrictions remain of substantial value”.

Pierce et al. v. St. Louis Union Trust Co. et al., 311 Mo. 262, 278 S.W. 398, 408, was a suit to enjoin violation of restrictive covenants limiting construction in Vande-venter Place, St. Louis, to “First class-dwellings”. The injunction was granted and approved on appeal. The Supreme Court summarized the factual findings as to neighborhood change as follows:

“But notwithstanding the assaults of commercial business upon the surrounding neighborhood, the evidence as a whole rather tends to show that Van-deventer Place itself has successfully withstood the advance of the commercial army, and has so far maintained its exclusive character as a single family residential district of the highest class. Many families have lived in the addition for more than a generation, and many of the homes have passed into the hands of the second generation. Almost without exception, the plaintiff residents and owners of the 86 lots in the addition testified at the trial that the quiet and seclusive character of the district has been maintained, and bids fair to continue to exist for some time yet to come”.

No radical change was apparently shown in this case as to Vandeventer Place itself although the area around it had changed substantially.

A more recent Missouri case is Cowherd Development Co. et al. v. Littick et al., 361 Mo. 1001, 238 S.W.2d 346, 350. This was a suit seeking a declaratory judgment that certain lots in Kansas City, Missouri extension were exempt from building restrictions. Again the court upheld the restrictions. Plaintiff’s testimony was that the lots would have a sale value of $100 more per front foot if the restrictions were removed. In ruling that greater value alone would not justify lifting the restrictions, the court quoted with approval from 26 C.J.S. Deeds § 171 c, p. 1179.

“Where a building restriction is designed to preserve property for residential purposes, its violation cannot be excused on the basis of a changed condition of the surroundings by reason of the fact that it is the opinion •of the court that, in a comparatively ■short time, the premises will be worth more for business than for .residential purposes; nor does the mere fact that lots, subject to building restrictions, have become more valuable for business than for residence purposes, as limited by the restrictions, of itself justify equity in annulling the restrictions”.

'See also Hall et al. v. Koehler et al., 347 Mo. 658, 148 S.W.2d 489.

Plaintiffs invite our attention to cases from foreign jurisdictions where petitioners by equitable action or through declaratory judgments have succeeded in getting similar building restrictions struck down. Those foreign decisions indicate that where there has been a real and radical change in the neighborhood those courts will not only refuse injunctive relief but will affirmatively void the restrictions — in other words, such a change in conditions can serve not •only as a shield, but also as a sword.

In Dunlap v. Beaty et al., 239 S.C. 196, 122 S.E.2d 9, 15, which was a declaratory judgment action, the Supreme Court of South Carolina said:

“The earlier decisions rather uniformly held that changed conditions could be invoked only as a defense to ■an action to enforce a restriction by injunction and not as a ground for affirmative relief against such restriction prior to the breach thereof. The theory underlying this view is that contractual obligations do not disappear as circumstances change. However, the great weight of modern authority is that in an action under the declaratory judgment statute or one to remove cloud on title, affirmative relief may be granted against a restrictive covenant where there is such a change in the character of the neighborhood as to ■render the enforcement of the covenant valueless to the covenantee and oppressive and unreasonable as to the covenantor”. (Italics supplied).

In that case since the restrictions were made the main street had been widened, traffic had increased and the number of commercial enterprises in the area had multiplied. It was found that continued enforcement of the restrictions on plaintiff’s property would result in substantial damage to plaintiff without materially benefit-ting the defendant. Judgment striking down the restrictions as to .residences was entered.

In Anness v. Freeman et al., 294 S.W.2d 77-78, the Court of Appeals of Kentucky approved a decree nullifying restrictions limiting construction to single family dwellings. There was testimony that the property was wholly unsuited for residential purposes. No property owners in the area objected and the Planning and Zoning Commission had approved the change. However, the court again stated the rule in this language:

“It is well established that restrictive covenants against business enterprises will not be enforced when there has been a fundamental change in the character of the property in the restricted area due to municipal expansion, spread of industry and other like causes. See Goodwin Bros. v. Combs Lumber Co., 275 Ky. 114, 120 S.W.2d 1024 and the cases cited therein. However, before a change of conditions will bring into operation the annullment of a restrictive covenant, it must be a change of such character that it clearly neutralizes the benefits of the restriction to such an extent as to defeat the purpose of the covenant”. (Italics added).

The Supreme Court of California (Key et al. v. McCabe et al., 54 Cal.2d 736, 8 Cal. Rptr. 425, 356 P.2d 169), refused to enforce single family dwelling restrictions by injunction. Here the restrictions were implanted in 1940, prohibited any business, trade or profession, and ran until 1969. The court found sufficient change because: (1) Fullerton Drive, on which defendant’s property fronts is now a 4-lane busy thoroughfare; (2) The property is unsuitable for single-family dwellings; (3) The original scheme has not been carried out. The property within the area and along the highway has been released from the building ¡restrictions by the property owners themselves; (4) The property has been zoned commercial.

Somewhat the same result was reached by the Supreme Court of California in Hess et ux. v. Country Club Park et al., 213 Cal. 613, 2 P.2d 782, but in these two last mentioned cases the trial court’s findings were approved on the basis of being supported by substantial evidence.

In Wolff v. Fallon et al., 44 Cal.2d 695, 284 P.2d 802 (Sup.Ct. of Cal., 1955) the restrictions were made in 1913. On a finding of greatly increased traffic on Ocean Highway, the frontage street and that of 19 buildings on the block, 16 were business, the court nullified the restrictions..

Clearly plaintiffs’ property in our case is worth more for commercial use than for residential purposes but that is true as to many tracts located in residential areas. Our Missouri courts have ruled that greater commercial value is not alone sufficient cause to nullify the restrictions.

It is also quite apparent, as the trial court found, that substantial changes have occurred since 1940, when the .restrictions came into existence. Vivion Road has changed from a two-lane street to a four-lane highway and thoroughfare. Numerous commercial enterprises may be found near the Antioch Shopping Center — one and one-half miles from plaintiffs’ property. Such development has moved toward the tract in controversy. The Foxwood Shopping Center with some 15 stores and offices, is directly across the street. Some small commercial enterprises — Mattys’ trash hauling and a real estate office — are at or near plaintiffs’ tract. The trial court found, radical changes, but also believed that Win-netonka Heights still actually was, in some substantial part at least, and retained the attributes of, a residential area. Certainly not as exclusively residential as it was ini 1940, but, nevertheless, residential enough so that removing restrictions as to plaintiffs’ tract and constructing a medical building thereon would amount to further damage and would be a further wedge destructive to residential use.

We, too, believe that Winnetonka. Heights is still used primarily or at least substantially, for residential purposes and) that the restrictions remain of real value to. the home owners residing in the subdivision. There was substantial evidence to-justify the conclusions of the chancellor. Plaintiffs knew about the restrictions and' purchased the property subject to them-Our Missouri courts have been most reluctant to nullify restrictions of this type. And the cases from foreign jurisdictions, that do so are instances where the court gave judicial approval and legal sanction, to the interment of building restrictions that were actually already dead and no longer operative.

We are unwilling to disturb the lower court’s finding and thereby .remove forever these building restrictions.

The judgment is affirmed.

SPERRY, C., concurs.

PER CURIAM.

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

All concur.


source: Caselaw Access Project

author: SPERRY, Commissioner.

license: Public Domain

text:
    Iva Mae DAWES, Respondent, v. Charles L. ELLISTON, Appellant.
    No. 23747-A.
    Kansas City Court of Appeals. Missouri.
    April 1, 1963.

      Thomas A. Sweeny, Kansas City, for appellant.
    Robert L. Shirkey, Rogers, Field & Gentry, Kansas City, for respondent.
   SPERRY, Commissioner.

Plaintiff had a judgment of $15,000.00 against defendant, for personal injuries she received when defendant’s automobile, in which plaintiff was a passenger, collided with another motor vehicle on Highway 66 in Missouri. Defendant appeals.

Since defendant concedes that there was sufficient evidence of defendant’s negligence to make a jury case, and since it is conceded that the judgment is not excessive, we will refrain from setting out the facts regarding those issues.

The accident occurred June 19, 1955, on Highway 66 in Laclede County. Plaintiff is the mother of defendant. They and other members of the family were taking defendant’s son to a military camp after he had visited his home and family. Defendant’s automobile struck another car on the highway. As a result of the collision plaintiff suffered a broken hip and other severe injuries. She was sent to a hospital in Lebanon, and thence to Springfield, to a hospital, where she underwent surgery for her hip injury.

Defendant’s insurer not only carried liability insurance on the car but the policy provided for medical payments for any person injured while a passenger in the car in the amount of $1000.00. While plaintiff was a patient in the hospital, on June 29, she was interviewed by insurer’s attorney and agent. Her statement was taken as to the circumstances of the collision. She told him of how the accident occurred. She then stated that she would leave the hospital as soon as she could because of the great expense of treatment. She was not then informed by anyone that there was medical insurance and she evidently believed that she would have to find the money to pay for her medical expenses.

When the accident occurred plaintiff was 63 years of age. She had never passed the 8th grade examination in school. She had worked most of her active life in a laundry. She lived, with her husband, on 20 acres of land near Caplinger Mills, near Springfield. The house was not modern. She and her husband had very little income and kept two cows and some chickens to eke out their living.

She left the hospital on July 2, and went to her home. She couldn’t walk so was confined in bed. She borrowed a pair of crutches from a neighbor and learned to walk on them but, eventually, had to return the crutches. Afterwards she used a cane. She got a lady, not a nurse, to stay in her home for four weeks to help her. She paid her $35.00 per week plus board and room, worth $15.00 per week.

She stated that, on August 1, defendant’s agent, who had previously taken her statement, came to her home and gave her a draft for $598.60 in 'payment of hospital, medical, drug, ambulance and nursing expenses. She was then unable to walk except on crutches. A full release was taken. Insurer’s agent stated in evidence that, since insured was not negligent, there was no potential lawsuit in favor of plaintiff as against him and he did not discuss that matter with her. It appears that plaintiff knew but little about her rights against her son or the insurer, either under the medical insurance or for negligence.

On August 19, plaintiff went to insurer’s office, after learning that she had permanent injuries, to demand a settlement for her injuries. She asked for an interview with the attorney and claim agent with whom she had been doing business, but he was out.

On August 26, he called on her at her home in response to her visit to the office on August 19. He stated in evidence that he told her that he understood that, since she had a permanent injury, she wanted a settlement; that he had already settled with her, had a release of her claim; that she said that she had a relative who had a broken hip who got twelve or thirteen hundred dollars; that she wanted $500.00 more money; that he offered her $300.00 more money, which she rejected; that he left and, after an hour or so returned and paid her $500.00 for which he took a full release from her and her husband. The release was in evidence.

Plaintiff testified as to what transpired when the attorney came to her home. She was home sitting on the bed; she was not up and around in a normal manner; she could get around a little with crutches; she had a headache and couldn’t see because her glasses had been damaged in the wreck; the attorney said he would give her $200.00, then $250.00, and finally, $300.00, which she refused. She stated that he stayed two or three hours, arguing; that, finally, she said that she wouldn’t sign without consultation with her son or a lawyer; that h.e left but came back shortly thereafter. She stated that he was in a better humor when he returned. He told her: “We want it settled and you want it settled”. She said that she told him that $500.00 wouldn’t pay for the trips she had made and the bills to be incurred; that the attorney said: “I’ll just give you $500.00 because I feel sorry for you. * * ⅜ That’s all I am allowed to give you. * * * You know if you don’t take this your son will lose his insurance, his license, and you won’t get nothing”. She said that it made her mad, nervous and upset. She believed the statement and agreed to settle. He gave her a check for $500.00 and she signed a release therefor.

The burden is on plaintiff to prove the invalidity of a release. Wolf v. St. Louis Public Service Company, Mo.App., 357 S.W.2d 950, 954. Defendant says that the attorney accepted plaintiff’s offer to settle for $500.00 before he made the alleged misrepresentations, that is, if she didn’t settle, insurer would cancel the insurance and her son would lose his license. Such contention is not borne out by plaintiff’s testimony. Quite the contrary. We cannot hold that there was a meeting of the minds and a contract made prior to the alleged misrepresentations. It would be contrary to plaintiff’s testimony.

It requires substantial evidence of fraud to require that the issue be submitted to the jury. Atchison v. Missouri Pacific Railroad Company, Mo.App., 46 S.W.2d 230.

Defendant contends that the above statement cannot form the basis of a charge of fraud because such a statement must relate to an existing fact; that an opinion as to the happening of a future event does not constitute actionable fraud. Such has been declared to be the law. Herzwurm v. Mound City Cab Company, Mo.App., 290 S.W.2d 203, 206. Sparks v. Rudy Fick, Inc., Mo.App., 309 S.W.2d 687, 691.

But there is an exception to that rule, as Judge Broaddus stated in Nichols v. Hendrix, Mo.App., 312 S.W.2d 163, 165. False representations and promises as to what will result in the future, when made “by one professing to have superior knowledge based on past experience of himself or others, are, in effect, false representations of existing conditions and support allegations of fraud. In Hartley Realty Company v. Casady, Mo.App., 332 S.W.2d 291, 293, we said that where defendant and his lawyer were possessed of superior means of knowledge their representations, though of law rather than fact, constituted fraud. See State ex rel. St. Louis & San Francisco Ry. Co. v. Daues, Mo., 290 S.W. 425, 428. A state of mind may be misrepresented and thus constitute a misrepresentation of fact. An existing opinion may be a fact material to the proposed transaction and a statement that such an opinion exists becomes an affirmation of a material fact and if untrue it is a misrepresentation. Sparks v. Rudy Fick, Inc., supra, p. 691 of 309 S.W.2d 687.

The statement made (as the jury found) that if plaintiff did not accept $500.00, which the attorney was giving her because he felt sorry for her, she would get nothing and her son would lose his insurance and his license we think was a statement of fact. It was made by a claims adjuster for insurer of plaintiff’s son, with experience in that field. It was made with the intention that plaintiff believe it and act on it, which she did. The declarant knew it was false and that he did not believe the events predicted would or could come true. But plaintiff was an elderly woman, of little worldly experience or means, of little education and of no business experience. She was dealing where a wrong step by her might well result in great harm to her son. These elements of actionable fraud were present, and were the essentials to a submission of the issue. Sparks v. Rudy Fick, Inc., supra.

However, defendant says plaintiff was not entitled to rely on these statements, that she was required to make inquiries as to their truth, that she should have consulted an attorney or some other source of information. That is the general rule. “But, in any event, before one may rely on fraud to avoid the effect of a compromise and release, the party asserting the fraud must himself have exercised some prudence in ascertaining the truth.” Sheppard v. Travelers Protective Association of America, 233 Mo.App. 602, 124 S.W.2d 528, 530. As between parties dealing at arms length, one may not rely blindly, without other information or inquiry, on what his adversary may say. Poe v. Illinois Central Railroad Company, 339 Mo. 1025, 99 S.W.2d 82, 84-85; Wood v. Robertson, Mo., 245 S.W.2d 80, 84. That is the general rule.

But the exception to the rule is stated in Wood v. Robertson, supra. Where there is a confidential relationship between the parties and thereby the victim of the fraud refrains from further investigation he may yet recover in a proper case. In this case, defendant’s agent was a lawyer and he was skilled in matters of this kind. However, the record fails to show that defendant knew that he was a lawyer. Plaintiff is a woman of very limited learning and experience, and of small income or property. She had a serious and permanent injury. She did not know that there was medical insurance for her benefit, or the law with reference to medical insurance. She had asked for a settlement because of her permanent injuries. Her attorney visited her in response to that demand. He was her son’s insurance representative, his alter ego in this transaction. He was a man that she could have respected and deferred to because of his position and knowledge with reference to the subject. He had previously taken her statement, with a court reporter, and had given her money to pay medical and other expenses. The jury could have well believed that she trusted him and had confidence in his integrity as her son’s representative and as his insurance adjuster.

But he deceived her at the beginning of negotiations by telling her that she had already executed a full release, for $598.60, without also telling her that it did not bind her so far as concerned her claim for injuries based on negligence. Then he told her that he was sorry for her because, as he admitted in his testimony, she had serious injuries; that he would give her $200.00 for that reason. She refused and indicated it was worth twelve or thirteen hundred dollars. He offered her $250.00 and, finally $300.00. He left in anger, or simulated anger, and she, too, had become angry. He returned with smiles and offered $500.00 which, he said, was all he was permitted to pay. She accepted because of that statement. There is evidence to the effect that the above took place, and the jury evidently believed it. If so, it was sufficient evidence of fraud perpetrated by one in a confidential relationship so as to justify invalidating the release. It was for the jury, under all of the evidence, to determine these issues.

Defendant next contends that the court erred in giving the foreman of the jury an oral instruction on the meaning of the word “fraud” out of the presence of the other members of the jury and of counsel. In Chinn v. Davis, 21 Mo.App. 363, 370, an extended whispered conversation was carried on by the judge and a member of the jury, and a reversal was ordered. Here, the juror entered the judge’s chambers and asked the meaning of “misrepresentations” and the court said it related to fraud but immediately in the presence of counsel and on the record, said that he could not discuss it but that the matter would be considered with counsel and, if deemed proper, an instruction would be given. Thereafter, an instruction was given on the subject. In the case at bar, both counsel and the stenographer were present immediately after the juror entered the chambers and a record was made of proceedings. Nothing improper appears in that record. We do not think this situation is governed by the Chinn case, nor that of Hartgrove v. Chicago, B. & Q. Railroad Company, 358 Mo. 971, 218 S.W.2d 557. From the record before us we cannot say that the trial judge orally instructed the juror. The error, if any, could not have been prejudicial.

Error is urged in the giving of instruction 3 which was to the effect that if it was found that defendant was guilty of negligence, in any degree, which caused or contributed to cause plaintiff’s injuries it should return a verdict for plaintiff even though such negligence of defendant concurred with that of another to cause the injury. This was a cautionary instruction and the giving or refusing of such an instruction is within the sound discretion of the trial court. Stanley v. Stanley, Mo. App., 251 S.W.2d 365, 369. There was no abuse of discretion and the instruction fairly states the law.

Instruction No. 1 is criticized because in the first section thereof, which is an abstract declaration of the law, the words “exercise the highest degree of care” do not appear therein. This instruction in this form was approved in Gooch v. Avsco, Inc., 337 S.W.2d 245, 250, and in Salzwedel v. Vassil, Mo.App., 351 S.W.2d 829, 839. In neither case was this identical language criticized.

It is urged that error was committed in that plaintiff’s counsel was permitted to and did argue matters outside the record in his closing argument. It is not specifically stated in the motion for new trial or in the brief just what statement counsel made that is objectionable. The point is not preserved so as to require a ruling.

Criticism is made of instruction No. 4, which dealt with the issue of the release. It is chiefly criticized because it it unnecessarily long, prolix, complicated, confusing, and misleading. It is unduly long but it is not confusing or misleading. For all of its length, it clearly sets forth the issue so far as the release is concerned. It is not an argument to the jury but requires that body to find essential facts stated therein. It does refer to insurance, but only as it is necessary to explain and require findings as to fraud in procurement of the release. We see no prejudicial error in the instruction and rule against defendant on the point.

The judgment is affirmed.

MAUGHMER, C., concurs.

PER CURIAM.

The foregoing opinion of SPERRY, C., is adopted as the opinion of the court. All concur.


author: PER CURIAM.

text:
    Curtis B. HAFFORD and Virginia L. Hafford, his wife, Plaintiffs-Appellants, v. Wayne L. SMITH and Connie Smith, his wife, Dave R. Ashmore and Lillian R. Ashmore, his wife, and Joplin Federal Savings and Loan Ass’n., Defendants-Respondents.
    No. 8148.
    Springfield Court of Appeals. Missouri.
    June 19,1963.

      Max Patten, A. H. Garner, Joplin, for plaintiffs-appellants.
    Emerson Foulke, Joplin, for detendants-respondents.
   PER CURIAM.

In this case, the appellants (plaintiffs below, and to whom we shall sometimes refer as the plaintiff, or plaintiffs) and respondents Smith (to whom we shall sometimes refer as the defendant, or defendants) exchanged property. In return for a credit toward the purchase of a house trailer, the defendants conveyed their interest (or “equity”) in a small tract of land, and their furniture, to the plaintiffs. The real property, at the time, was subject to two encumbrances, a first deed of trust held by the defendant Savings and Loan Associa- ' tion, which was foreclosed prior to the trial and does not concern us here, and a second deed of trust (to which we shall refer as a mortgage) held by the defendant Ashmore (to whom we shall sometimes refer as the mortgagee). As the conveyance from defendants to plaintiffs was finally recorded, it contained an assumption clause, or “covenant of assumption,” the effect of which was to make plaintiffs liable for the mortgage debt. The plaintiffs brought this action as an action in equity, seeking to avoid, or be relieved of, any liability under the assumption clause, and joined the Smiths, their grantors, as defendants, along with both lienholders. The trial chancellor has found that plaintiff Curtis Hafford is personally liable, and the plaintiffs have appealed.

The facts are in dispute, and some aspects of the case were not developed in testimony as fully as they might have been. However, from the record before us, it appears that in September 1960, Smith, who was then the operator of a drive-in restaurant, approached Hafford, a dealer in real estate and automobile trailers, about the possibility of exchanging the Smiths’ interest in a parcel of real property, and their furniture, for a house trailer. They discussed the proposed transaction on a number of occasions, usually at Halford’s office, and, although the plaintiff vigorously denied having done so, there is evidence indicating that the plaintiff, during these preliminary discussions, had agreed to assume both the mortgage debts, and had called Ashmore to ascertain the amount of Ash-more’s lien, asking if the Ashmore note could be purchased at a discount. Plaintiff’s testimony in this respect was that he had been aware that there were two encumbrances against the realty but was not aware of the amount due on either. Defendants’ evidence, on the other hand, was that they had insisted on Halford’s assuming the outstanding debts against the property, and that his agreement to do so had been a condition of their agreement. Ash-more’s testimony tended to confirm this.

On September IS, the parties decided to conclude their transaction, transfer the real property, and deliver the trailer. The parties have laid considerable stress, both during the trial of this action and here, upon the manner of preparation of the deed. While in our opinion the manner in which the assumption clause was inserted in the deed is not controlling, the deed (filed here as an exhibit) does plainly show that the four lines following the description, which constitute the assumption clause or phrase, were inserted on a typewriter different from that used to prepare the rest of the deed, with the exception of the acknowledgment. Following the description, there are words indicating that the deed is executed subject to a deed of trust by the grantors to the defendant Savings and Loan Association, and the deed further recites “ * * * subject also to a deed of trust to Dave R. Ashmore and Lillian R. Ashmore, which buyer assumes and agrees to pay.” The deed further shows that it was executed on September 15 and recorded on October 28, 1960.

It was Hafford’s position at the trial, and he contends here, that the assumption clause was inserted in the deed without his knowledge or permission and was therefore void. The substance of his evidence on this point was that he, the plaintiff, had instructed his attorney to prepare a deed for the Smiths’ signatures, without any mention of the encumbrances and without any agreement whatever to assume payment of the obligations secured. The defendants were to call later at his attorney’s office and execute the deed, which was then to be delivered to Hafford. Both the plaintiff and his attorney (who did not represent him at the trial) denied that they had authorized the insertion of any language imposing the obligation of either encumbrance on the grantees, and Hafford’s testimony was that he had not noticed the assumption clause for some time after the execution of the deed when Ashmore had demanded the interest on his note, at which time Hafford, attempting to repudiate the transaction, had promptly filed suit. On the other hand, both the defendants and Ashmore testified unequivocally that they had received the deed from the scrivener with instruction, or at least permission, to insert an appropriate phrase showing assumption of both mortgages by the grantees, and that Hafford, upon being notified by telephone that there was no provision for assumption of the encumbrances in the deed as originally prepared, had readily consented to the insertion of an assumption clause. It is undisputed that the four lines complained of were inserted by an employee of the defendant Savings and Loan Association, a Mrs. Duffey, but beyond stating that it was customary to draw a deed in that manner where there was a mortgage against the property being sold, Mrs. Duffey could not recall the transaction.

Hafford then took possession of the real property, the trailer having been delivered about that time, and remained in possession for a matter of several months, possibly a year. During that time, both Hafford and Ashmore made several attempts to sell the property; there is some indication that Haf-ford made improvements, or did some work on the property during that time, and exhibited the house for sale regularly through a local real estate agency. It was shown that during the interval between September IS, 1960, when the exchange was made, and October 23, 1961, when the first deed of trust was foreclosed, Hafford made several payments on the first deed of trust, and, in his words, offered to pay “his part” of the interest due on the obligation secured by the second deed of trust. The defendants’ furniture, which Hafford had stored in a warehouse, was discovered to be encumbered and was consequently redelivered to the defendants, upon their execution of a note for $350.00 to Hafford, and the defendants were still making payments on this note at trial time. During January, 1961, Hafford had repossessed the house trailer, since the Smiths had moved and were “showing no interest.” The evidence will be further developed in connection with the questions presented.

The appellants first contend that the agreement to assume the mortgages was violative of the Statute of Frauds, Section 432.010. As we understand their brief, the appellants maintain that since the defendants testified to, and their evidence tended to establish, an oral contract to assume the indebtedness, the contract is unenforceable because the statute requires that a promise to assume the debt of another must be in writing.

We are not at all sure that this point is germane to this appeal, for there is nothing in the record to indicate that the trial court based its judgment upon a finding of an oral contract to assume the mortgages. However, in our opinion there is substantial evidence in the record to support a finding that during the course of their preliminary negotiations, Hafford and the Smiths agreed that, in exchange for the defendants’ conveyance of their equity of redemption in the land, and their furniture, Hafford was to credit the defendants with a down payment on the house trailer and assume the mortgages. The evidence shows and the appellants, in their brief, concede that these preliminary dealings were had between Hafford and the Smiths, and that Ashmore, holder of the second mortgage, came into the matter subsequently.

In these circumstances, an oral promise by Hafford to assume the debts would not violate the Statute of Frauds. While that part of our statute (Section 432.010) which requires that a premise to answer for the debt of another be in writing appears in terms to apply to a promise made to anyone, it has been consistently held that no writing or other memorandum is required where the promise is made to the debtor himself and not to the creditor. In this case, since any oral agreement to assume and pay the mortgages ran between Hafford, the grantee, and Smith, the mortgagor, it was not a promise to answer for the debt of another within the meaning of Section 432.010, and was not, as the appellants contend, unenforceable for that reason.

The appellants next contend that the deed was never delivered or accepted, and as we understand their brief, it is their position that if the deed were delivered to and accepted by the plaintiffs, then the assumption agreement was inserted in the deed without plaintiffs’ knowledge, and therefore the plaintiffs are not liable to the mortgagee.

As to the appellants’ contention that there was never any delivery or acceptance of the deed, the record shows, and the trial court could have found, that the Smiths and the mortgagee, Ashmore, went to the office of Hafford’s attorney on September IS, 1960, when the property was finally exchanged, and discovered that the deed made no provision for Hafford’s assumption of the mortgages. Ashmore called Smith’s attention to this and the deed was taken to the defendant Savings and Loan Association for the purpose of inserting an appropriate assumption clause. The trial court could have found that the deed was delivered to Smith and his wife either by the scrivener or his secretary. Ashmore testified that the deed was then left by the Smiths in custody of the defendant Savings and Loan Association for Hafford, at his specific direction, so the deed could be recorded and then delivered to the plaintiffs. It was, of course, Haf-ford’s testimony that he had not received the deed for some time, and the record does show that some time elapsed between the execution of the deed and the time it was recorded, but if we understand his testimony, the plaintiff did not deny that he ever received the deed but only maintained that he did not examine it for a considerable period of time after receiving it, and that he then discovered the assumption clause, to which he had never agreed. It is not disputed that plaintiff immediately went into possession of the premises upon completion of the transaction, and retained possession for several months, possibly a year, all the while attempting to sell the property through a local real estate agency.

We believe this point must be ruled against the appellants. While delivery is essential to the validity of a deed, it is not necessary that there he a manual delivery, and if a deed is signed, acknowledged, and placed in the custody of a third person for the benefit of the grantee, then the deed has been delivered and title passes, if that is the grantor’s intent. Since in this case the trial court could have found that, with Hafford’s consent, the deed was delivered to the Savings and Loan Association to he recorded and returned to him, and it could be inferred that it was the grantors’ intent to pass title at the time the deed was executed and delivered for recordation, we believe there was a valid delivery. Haer v. Christmas, Mo., 312 S.W.2d 66, 69; Southern v. Southern, Mo., 52 S.W.2d 868, 870-871 [4-7]; Keener v. Williams, 307 Mo. 682, 704, 271 S.W. 489, 495 [5, 6]; Schooler v. Schooler, 258 Mo. 83, 91-92, 167 S.W. 444, 445-446 [1, 2]. What is more, both the delivery and acceptance of a deed may be established by indirect or inferential evidence. Our courts have said that acceptance of a deed may be shown by the acts and conduct of the grantee, Weigel v. Wood, 355 Mo. 11, 15, 194 S.W.2d 40, 41 [3-5], and have considered that possession and improvement of the premises conveyed indicate acceptance of the deed. Schooler v. Schooler, supra, 258 Mo. at 93, 167 S.W. at 446; Baker v. Baker, 363 Mo. 318, 326-327, 251 S.W.2d 31, 36-37 [8], 33 A.L.R.2d 1431. In those jurisdictions which have considered the effect of specific acts, it has been held that an offer by the grantee to sell the property after conveyance implies acceptance of the deed. Lyon v. Lyon, 70 Cal.App. 607, 233 P. 988, 991; Blodgett v. Snobble, 295 Mich. 374, 295 N.W. 192, 194 [6, 7]; Taylor v. Smith, 61 App.Div. 623, 71 N.Y.S. 160, 162. See generally, Anno., 74 A.L.R.2d 992, § 11, pp. 1017-18; § 12, p. 1020. In this case, Hafford was in possession of the deed at trial time. He had gone into possession of the premises immediately after the exchange of property was made, had exercised some continued dominion over the property for nearly a year, and had made repeated attempts to sell the property. We believe there was substantial evidence indicating his acceptance of the deed.

The appellants’ other contention — that they are not liable if they did not specifically consent to have the assumption clause inserted in the deed- — poses a somewhat more complex question. As we have said, the appellants placed considerable emphasis during the trial of this case upon the manner in which the deed was prepared. The whole force of their evidence was that the agreement to assume, or “covenant of assumption,” was inserted in the deed without their knowledge and by fraud, and that if the deed was accepted, it was accepted without knowledge of the presence of the agreement to assume and without knowledge of its effect.

What the appellants are maintaining here, in substance, is that there is no basis for the court’s judgment because there is no positive evidence that they were present at the time the deed was prepared, nor any unequivocal showing that they consented to the insertion of an assumption clause.

It may be generally stated that a purchaser who accepts and holds land under a deed reciting that he has assumed and agreed to pay an outstanding mortgage, subjects himself to personal liability on the mortgage. This is one way in which a contract of assumption may arise.

Admittedly, this rule is somewhat artificial — the contract of assumption is sometimes said to be “implied” in such cases • — and if the assumption clause is inserted through fraud or mistake of the grantor or scrivener, or the deed is accepted by the grantee without knowledge of the assumption clause, then the grantee incurs no personal liability to the mortgagee. Acceptance and recording of the deed containing the assumption clause, without more, does not bind the grantee, though the deed may yet be effective as a conveyance of the land. In other words, the principle that a party must be presumed to know the contents and meaning of a written instrument, which he takes as evidence of title, does not extend so far as to conclusively impose on the grantee of mortgaged lands a collateral personal liability for the mortgage debt founded upon a clause inserted in the deed without his knowledge and expressing an agreement which he has not made.

It is true, as the appellants complain, that where the deed expressly provides for the grantee’s assumption of an outstanding mortgage, the application of these principles is rather narrowly limited by the parol evidence rule. It appears that a grantee who wishes to controvert the provisions of a conveyance containing an express assumption clause, after accepting it, must resort to equity to do so, and he has the burden of proving non-assumption by clear and convincing proof. Employers’ Indemnity Corporation v. Garrett, supra, note 6, 327 Mo. at 884-887, 38 S.W.2d at 1053-1055.

However, in this case the plaintiffs brought their action as an action for reformation of the deed, or alternatively, for rescission, and the defendants joined issue with an affirmative cross-bill, pleading the plaintiffs’ agreement to assume the outstanding mortgages and praying for general relief. The whole matter having been submitted in equity, the trial court was authorized to determine the whole controversy and render any judgment consistent with the pleadings. Rains v. Moulder, 338 Mo. 275, 284, 90 S.W.2d 81, 85 [8-10]; Eckhardt v. Bock, Mo.App., 159 S.W.2d 395, 400. Procedural matters aside, therefore, the real issue in this case was whether Hafford ever actually agreed to be bound, and the basic fact question for determination was whether he had comported himself so as to indicate his assent by his conduct, as well as his statements. Macy v. Day, Mo.App., 346 S.W.2d 555, 558; 1 Williston, op. cit. supra, note 4, § 22A, pp. 49-50.

We believe the record more than supports the trial chancellor’s finding that Hafford did in fact consent to assume the outstanding encumbrances. Before the terms of the bargain were ever fully settled, the parties had discussed the mortgages; when Hafford suggested that the record title remain in Smith’s name, Smith stated that “he wouldn’t do that under no condition”- — Hafford was to assume the mortgages. It was the defendant Connie Smith’s recollection that “Hafford agreed to assume everything and pay it. That was the only way we would make a deal with him.” It was about this time that Hafford first called the mortgagee, Ashmore, to ascertain the amount of the mortgage due and to inquire if a discount could be obtained if the notes were paid at once, in cash. Later, after the negotiations between plaintiff and the Smiths had gone on for several days, Hafford again called Ashmore and said that “if he dealt” he, Hafford, would assume the mortgages. Thus, though the plaintiff categorically denied having such conversations with either the Smiths or Ashmore, the trial court could have found that, from the outset, it was contemplated by Hafford, the Smiths, and the mortgagee that Hafford would assume and pay the outstanding mortgages, and that prior to the execution of the deed, Hafford had agreed to do so. Other courts which have considered more or less similar situations have held that conversations made during preliminary negotiations, tending to show the grantee’s assumption of an outstanding encumbrance, may be considered as evidence of his intent to do so, even though the conversations are flatly denied by the grantee. Seeger v. Manifold, 210 Iowa 683, 231 N.W. 479, 481-482; Bradbury v. Thomas, 135 Cal.App. 435, 27 P.2d 402, 404-405 [3, 4], What is more, Hafford’s conduct with respect to the existing mortgages indicates that he not only recognized them as valid, but shows to some extent that he considered them as binding on him. The plaintiff not only requested that Ashmore “take it easy” on the second deed of trust after the exchange was made, but tendered a part of the interest due, and indicated his willingness to pay “his part” of the accrued interest. Plaintiff himself stated that he had made one or more payments to the defendant Savings and Loan Association on the note secured by the first deed of trust. In our view, both the request for special consideration from Ash-more and the plaintiff’s recognition, at various times, of the validity of the mortgages, and his payment of the interest on one and principal on another, indicate indirectly his assent to be bound by the covenant of assumption. Strange v. Maloney, 178 Okl. 65, 61 P.2d 725, 726-727; McRae v. Pope, 311 Mass. 500, 42 N.E.2d 261, 265 [7] ; Henry v. Coe, 200 Ark. 44, 137 S.W.2d 897, 898 [2, 3], Considered with the other circumstances of this case, particularly the fact that the plaintiff Curtis Hafford so obviously had the advantage of his bargain for nearly a year before disclaiming it, the evidence not only fails to establish clearly and convincingly that the assumption clause was inserted by fraud or mistake, but rather shows a course of conduct entirely consistent with Hafford’s agreement to assume the outstanding mortgages. On the other hand, we agree with the trial court that there is no evidence connecting defendant Virginia Hafford with the transaction at all and, in our view, she is not bound by the assumption clause. La Monte Bank v. Crawford, supra, note 7, 27 S.W.2d at 764. It is true that the evidence is in conflict but it is our duty to defer to the trial chancellor’s finding unless it is clearly erroneous. Rule 73.01(d), V.A.M.R. We cannot say in this case that it is.

Appellants further maintain that as a prerequisite to any liability on Hafford’s part, Ashmore must first maintain an action on the mortgage note secured by the second deed of trust. There is no need to lengthen this opinion further by elaborating on the divergent views concerning the nature of the legal relationship between the mortgagor and assuming grantee. Possibly that legal relationship cannot be precisely defined in any manner beyond all controversy. However, here we are concerned with the mortgagee’s right to proceed directly against the assuming vendee as the principal debtor. Whether the relation between mortgagor and assuming grantee be considered one of suretyship, or a simple third-party beneficiary contract, the mortgagee may proceed directly against the vendee. Crone v. Stinde, 156 Mo. 262, 269-270, 55 S.W. 863, 864, 56 S.W. 907; Nelson v. Brown, 140 Mo. 580, 590, 41 S.W. 960, 962; Gerardi v. Christie, 148 Mo.App. 75, 91, 127 S.W. 635, 639. The mortgagee’s action is on the covenant, not on the note. Phoenix Trust Co. v. Garner, 227 Mo.App. 929, 932, 59 S.W.2d 779, 780 [3].

Finally, our jurisdiction is incidentally challenged. It is our duty to inquire independently if we have jurisdiction, whether or not the question is raised by the parties. Taney County v. Addington, Mo. App., 296 S.W.2d 129 [1]. In the case at hand, the plaintiff, Hafford, seems to have admitted that the liens were valid in their inception for he has made payments on the principal in one case and has tendered part of the accrued interest in another. In fact, the whole purpose of the plaintiffs’ action was simply to avoid the obligation of the note secured by the second deed of trust, and therefore no question of title was directly involved. Boesel v. Perry, Mo., 262 S.W.2d 636, 637-638 [4].

The judgment is affirmed.

All concur.

      . By this, we mean, of course, an agreement to assume the mortgage debt.

      . Except as otherwise noted, all references are to B-SMo (1959) and V.A.M.S.

      . Present § 432.010 provides, as did Section 4 of the original Statute of Frauds, that “No action shall be brought * * * to charge any person upon any special promise to answer for the debt, default or miscarriage of another person ⅜ * * 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 * *

      . Howard v. Coshow, 33 Mo. 118, 123-124; Brown ex rel. Clardy v. Brown, 47 Mo. 130, 131-132; Hedden v. Schneblin, 126 Mo.App. 478, 485, 104 S.W. 887, 889. See also 3 Williston, Contracts, § 460, p. 389 (3rd ed. 1960); Restatement, Contracts, § 191; 49 Am.Jur. Statute of Frauds, § 83, pp. 439 — 40.

      . Nelson v. Brown, 140 Mo. 580, 588, 41 S.W. 960, 962; Van Meter v. Poole, 130 Mo.App. 433, 437, 110 S.W. 5, 6; Curlee v. Morris, 196 Ark. 779, 120 S.W.2d 10, 13-14 [4-5]; Enos v. Anderson, 40 Colo. 395, 93 P. 475, 476, 15 L.R.A.,N.S., 1087; Woodburn v. Harvey, 107 Kan. 57, 190 P. 620, 621-622 [1, 2]; Anno., 15 L.R.A.,N.S., 1087. See also 2 Jones, Mortgages, § 750, pp. 171-73; Osborne, Mortgages, § 255, p. 704; 3 Williston, Contracts, § 478, p. 460 (3rd ed. 1960); 2 Corbin, Contracts, § 403, p. 399; 49 Am.Jur. Statute of Frauds, § 83, pp. 439 — 40. There is a contrary statement found in Parsons v. Kelso, 141 Mo.App. 369, 125 S.W. 227, 228 (soundly decided on another point) which appears to be dictum, and is unsupported by the above-cited authority.

      . Employers’ Indemnity Corporation v. Garrett, 327 Mo. 874, 884, 38 S.W.2d 1049, 1053 [1, 2]; Fitzgerald v. Barker, 70 Mo. 685, 687-688; Llewellyn v. Butler, 186 Mo.App. 525, 531, 172 S.W. 413, 415; Wayman v. Jones, 58 Mo.App. 313, 318; Saunders v. McClintock, 46 Mo.App. 216, 223; Annos. 5 L.R.A. 276, 6 L.R.A. 610, 611; 2 Jones Mortgages, § 752, pp. 177-79; 37 Am.Jur. Mortgages, § 994, pp. 323-24.

      . Empire Trust Co. v. Hitchcock, 233 Mo. App. 581, 588-590, 123 S.W.2d 565, 568 [7]; La Monte Bank v. Crawford, Mo.App., 27 S.W.2d 762, 764 [3]; Duvall-Percival Trust Co. v. Corzine, Mo.App., 295 S.W. 851, 854; LaRue v. Bloch, 215 Mo.App. 501, 505, 255 S.W. 321, 322; Johnson v. Maier, 194 Mo.App. 169, 172, 187 S.W. 143, 144-145; Llewellyn v. Butler, supra, note 6, 186 Mo.App. at 531, 172 S.W. at 415. See generally, Annos. L.R.A.1918A 1003, 1004; 100 A.L.R. 911.

      . In this respect, the case at hand should be distinguished from those cases in which the conveyance recites that the land is taken “subject to” an outstanding encumbrance, or does not mention the encumbrance at all. In such cases, the covenant of assumption may generally be proved by parol. E. g., see McFarland v. Melson, 323 Mo. 977, 984-985, 20 S.W. 2d 63, 66-67 (agreement to assume may be shown by parol where conveyance states it is made “subject to” encumbrance, clear and convincing proof required) ; Bensieck v. Cook, 110 Mo. 173, 186, 19 S.W. 642, 645 (assumption may be shown by parol); Gilmer v. Powell, Mo.App., 256 S.W. 124, 125 (separate written agreement to assume encumbrances may be shown by parol) ; Grace v. Gill, 136 Mo.App. 186, 191, 116 S.W. 442, 444 (no provision for encumbrances; parol evidence admissible to show assumption) .

      . 4 American Law of Property, § 16.131, pp. 304-07; See generally id., § 16.132-16.135, pp. 307-16; 2 Glenn, Mortgages, § 268, 268.1, pp. 1178-1181; Warm. Rights and Liabilities of Mortgagee, Mortgagor, and Grantee, 10 Temple L.Q. 116.


author: SMITH, Justice.

text:
    Paul Bruce BROWN et ux., Petitioners, v. FRONTIER THEATRES, INC., Respondent.
    No. A-9404.
    Supreme Court of Texas.
    June 26, 1963.
    Rehearing Denied July 17, 1963.

      John P. Dennison, Pecos, for petitioners.
    Richard L. Toll, Russell & Tomlin, Pecos, for respondent.
   SMITH, Justice.

This suit was originally brought in the District Court of Reeves County, Texas, by James Perry Brown, Blanchelizabeth Brown, and her husband, Paul Bruce Brown, against Frontier Theatres, Inc., seeking damages for household and kitchen equipment, clothing, money, heirlooms and other personal property, which was destroyed in a fire on May 11, 1958. James Perry Brown was dismissed from the suit, and the cause went to trial before the court and a jury, with Blanchelizabeth Brown and her husband, Paul Bruce Brown, as the sole remaining plaintiffs and Frontier Theatres, Inc., as defendant. For convenience, the parties will hereinafter be referred to as the Browns and Frontier Theatres.

After approximately two days of trial before a jury, the jury was dismissed by agreement of the parties. The trial was completed before the court and resulted in a judgment in favor of the Browns and against the Frontier Theatres for the sum of $21,258.00 for loss of property, with interest from May 11, 1958, the date of the loss.

Frontier Theatres perfected an appeal to the Court of Civil Appeals for the Eighth Supreme Judicial District of Texas at El Paso. That Court has reversed the judgment of the trial court and rendered its judgment that the Browns take nothing. 362 S.W.2d 360. The judgment of the Court of Civil Appeals is reversed.

On and prior to May 11, 1958, the defendant was the owner of the Eagle-Drive-In Theatre. This theatre was destroyed by a fire which consumed the personal property involved in this suit. The drive-in theatre was a structure approximately 60 feet high and contained an apartment which occupied the lower 8 or 8½ feet. The upper 51½ or 52 feet of the structure consisted principally of a theatre screen on the interior portion and a large neon sign on the exterior.

This theatre was one of three owned and operated by Frontier Theatres, Inc., in the Pecos area and Mr. Russell Ackley was the city manager for Frontier Theatres, Inc. Mr. Ackley had authority to employ such personnel as was necessary for the operation of the business, and Mrs. Brown was employed by him to operate the Eagle-Drive-In Theatre. This employment began about August 24, 1957, and continued until the date of the fire. Under the terms of the employment agreement, the Browns were to live on the theatre grounds on a 24-hour day basis and would serve as caretakers of the defendant’s property; they were to report to Mr. Ackley in the event any repairs were needed; they were given no authority to make repairs and their responsibility was limited to reporting such needed repairs to the city manager.

Under the agreement, Frontier Theatres furnished the Brown family the apartment portion of the structure for use as a residence. The Browns were also furnished a ground site adjacent to the apartment, upon which they were permitted to place a trailer house which was used as a part of their residence. Mr. Ackley had full knowledge that the Browns had moved all of their personal property into the apartment and the trailer house.

The evidence indicates and the trial court found that the upper 51[4 or 52 feet of the structure immediately above the apartment was under the exclusive management and control of Frontier Theatres and was not a part of the apartment. This upper portion of the structure, including the screen, the neon sign and all electrical wiring and appurtenances thereto, was retained by Frontier Theatres; and the maintenance thereof was the sole responsibility of Mr. Ackley. It was in this part of the structure that the Browns discovered electrical sparks emanating from the electrical wires connected to the neon sign. Mrs. Brown testified that sparks were “running up and down metal strips on the side of the building,” that she pulled the switch and reported the trouble to Mr. Ackley; and Mr. Ack-ley sent an electrician to the scene. The electrician made some repairs and informed Mrs. Brown that it was safe to turn the switch and use the neon sign. The sparks again appeared, and Mrs. Brown again called Mr. Ackley. Mr. Ackley, when told that sparks were still “running up that metal strip,” instructed Mrs. Brown to operate the neon sign. Mrs. Brown testified: “I asked him [Mr. Ackley] about it and he said that well, if the man [the electrician] said it was all right, you go ahead and operate it And to turn the lights on.” Mrs. Brown testified that on Saturday of the same week the sparks were first discovered she had another conversation with Mr. Ackley. This conversation took place at the State Theatre; and when told by Mrs. Brown that she was still concerned about the condition of the wiring because the difficulty had continued, Mr. Ackley said: “go ahead and use the lights. Or to use the sign.” The sign was called the “Eagle.” He said for me to “turn the eagle back on.” Mrs. Brown testified that in view of this conversation she felt that it was safe to operate the neon sign.

The next day [Sunday] about 9 o’clock, when the evening show was in progress, the fire occurred. According to one of the patrons of the show on that evening, the fire was first seen at the “top right-hand corner” of the screen. This witness testified that on several occasions prior to the fire he had been in the apartment and was somewhat familiar with the premises and had knowledge of the fact that the Browns lived there. He also knew that the Browns had considerable personal property in the apartment and that upon seeing the fire, he went to the apartment and carried out some of the things. He testified that the fire was up in the tower structure above the apartment at first, that he was forced to stop going in and carrying things out because “the roof started falling in.”

We have set out the evidence at some length in order to show a basis and support for the material findings of fact and conclusions of law by the trial court. It cannot be said as it was said in the case of Ditto v. Ditto Investment Company, 158 Tex. 104, 309 S.W.2d 219, that the filing of findings and conclusions was improper. In determining whether the trial court’s findings are supported by any evidence of probative value, we will give credence only to the evidence favorable to the findings and will disregard all evidence to the contrary. The findings of fact and the conclusions of law will be construed together; and if the findings of fact are susceptible of different constructions, they will be construed, if possible, to be in harmony with the judgment and to support it. See: Gulf Liquid Fertilizer Company v. Titus, Tex., 354 S.W.2d 378 (1962); Elder, Dempster & Co. v. Weld-Neville Cotton Co., 231 S.W. 102 (Tex.Com.App.1921).

This case comes to us with the holding that regardless of whether the duties allegedly owed by Frontier Theatres with respect to the chattels involved be found to rest solely upon a master-servant relationship between the parties, or solely upon a landlord-tenant relationship; or, upon a finding that both such relationships existed simultaneously under the employment agreement, the Browns cannot recover. The Court of Civil Appeals gives several reasons for such holding, and those reasons will be briefly stated:

In discussing the landlord-tenant relationship theory, the Court seems to have based its conclusion that Frontier Theatres was under no duty to keep the premises in repair, and particularly was under no duty to repair the electric wires connected to the neon sign, unless there existed some type of contract or agreement between the landlord and tenant imposing a duty upon the landlord to keep the premises in repair, or a covenant to keep the premises in a reasonably safe condition. The Court held that since there was no such contractual obligation, Frontier Theatres was under no duty to repair the electric wiring, and that therefore, Frontier Theatres was not liable to the Browns.

The Court of Civil Appeals, in connection with its discussion of the master-servant relationship theory, observed that before there can be a recovery there must have been established, in a case such as this, that a legal duty was owed by one person to another; a breach of that duty; and damages proximately resulting from such breach. The Court recognized that where the relationship of the parties is that of master and servant, the duty need not be one imposed by contract between the parties, but may be one implied by law from the circumstances and relationship of the parties. The Court, however, held that a legal duty on the part of the master to warn and protect the servant exists as to dangers only within the knowledge of the master and that no legal duty exists to warn and protect where the servant knows and appreciates the danger. The Court of Civil Appeals reached the conclusion that since the evidence was undisputed that the Browns knew of the dangers incident to the electric sparks originating in the wires connecting to the neon sign and knowing of such dangers and having voluntarily encountered them, they were not only barred from a recovery because Frontier Theatres had breached no duty, but because the Browns were also guilty of contributory negligence as a matter of law, in failing to remove their property from the premises. To support its holding on the issue of contributory negligence, the Court applied the rules announced in McKee v. Patterson, 153 Tex. 517, 271 S.W.2d 391 (1954).

In our opinion the evidence establishes that the parties to this suit occupy the dual relationship of master-servant and landlord-tenant. We are also of the opinion that if under the facts of this case Frontier Theatres has breached the duty owed to the Browns under either relationship, liability should be imposed upon Frontier Theatres for the loss of the personal property of the Browns.

Landlord-T enant

Frontier Theatres concedes in their brief in the Court of Civil Appeals that under the undisputed testimony the relationship of landlord and tenant existed. Therefore, the only question here presented is whether the landlord, Frontier Theatres, owed such a duty to the tenant, the Browns, as would render it liable for the loss or damage to the personal property involved.

The following is a summary of the findings of the trial court which are important to the resolving of the issue here presented: (1) the upper 51½ or 52 feet of the tower above the apartment, the screen, the neon sign and all electrical wiring and apparatus pertaining thereto was under the exclicsive management and control of Frontier Theatres, and was the sole responsibility of Mr. Ackley; (2) the fire was caused by and resulted from defects in the electrical wiring connected to the neon sign in that portion of the tower over which Frontier Theatres retained exclusive management and control; (3) the electrical defects were reported to Mr. Ackley prior to the fire, and that Mr. Ackley failed to have such electrical wiring repaired, and that Mr. Ackley instructed Mrs. Brown to continue the operation of such theatre, using such neon sign; and (4) the Browns were following and relying entirely upon such instructions at the time the fire occurred. Such findings are clearly supported by the evidence.

In our opinion these facts bring this case within the rule that where a landlord retains possession or control of a portion of the leased premises the landlord is charged with the duty of ordinary care in maintaining the portion retained so as not to damage the tenant. Archibald v. Fidelity Title and Trust Co., Tex.Civ.App., 296 S.W. 680. When such duty is breached and damage results therefrom, the landlord is liable to the tenant who suffers injury due to the defects in the portion over which possession or control is retained. See: Lang v. Henderson, 147 Tex. 353, 215 S.W.2d 585. Therefore, by the retention of control of the upper portion of the tower structure, Frontier Theatres was under the duty to maintain and operate that portion in a reasonably safe and prudent manner so as to prevent damage to the Brown’s property located in the lower portion of the tower. This Frontier Theatres failed to do.

The trial court has found that Frontier Theatres was negligent in failing to repair the electrical defects that were the cause of the fire, and that Frontier Theatres' negligence in this regard was the proximate cause of the fire that resulted in the loss of property to the Browns. We are of the opinion that the findings of negligence and proximate cause must be sustained, and that Frontier is liable for the damages that resulted unless the Browns were contribu-torily negligent.

Contributory Negligence

Frontier Theatres would have us hold that Mrs. Brown was contributorily negligent as a matter of law in continuing in occupation of the premises with knowledge that there was some defect in the electric sign, and in failing to use the means at hand of which she had full knowledge, to turn off the sign and thereby prevent the fire. In our opinion the record in this case will not support such a conclusion.

The record establishes that upon receipt of information that there was some difficulty in the electrical equipment, Mrs. Brown pulled the electrical switch and stopped the sparks. Immediately thereafter she called Mr. Ackley, the landlord’s city manager, who told her that he would have the defect repaired. A repairman for the sign company worked on the lights and told Mrs. Brown that the sign was safe and assured her that there was definitely no danger in the sign because he had never known of a fire starting from neon. Subsequently, sparks were again noticed, and again Mrs. Brown notified Mr. Ackley about them. Mr. Ackley stated that if the repairman said it was all right, then the lights were to be turned on. The mere fact that Mrs. Brown knew of these sparks and knew that they constituted a dangerous condition does not necessarily make Mrs. Brown con-tributorily negligent as a matter of law. McAfee v. Travis Gas Corp., 137 Tex. 314, 153 S.W.2d 442.

Contributory negligence such as will bar Mrs. Brown from recovering for the damage to her property would necessitate a holding by this court that the only rational inference that can be drawn from the above stated facts is that Mrs. Brown’s conduct fell below the standard of reasonable care, and that her failure to act with reasonable care was a legally contributing cause, co-operating with the negligence of Frontier Theatres in bringing about her loss. It is the general rule in Texas that where the undisputed evidence establishes the existence of a danger and the injured party has knowledge or is chargeable with knowledge of the danger and, without justification, exercises no care whatever, then there is shown a case of contributory negligence as a matter of law. Henwood v. Gilliam, Tex.Civ.App., 207 S.W.2d 904, wr. refused. Gulf, C. & S. Ry. Co. v. Gascamp, 69 Tex. 545, 7 S.W. 227. But where, as here, there is some evidence of care and the question is one of the sufficiency of the care taken, it cannot be said as a matter of law that there is contributory negligence. Lang v. Henderson, supra; Henwood v. Gilliam, supra. That Mrs. Brown was contributorily negligent is not the only rational inference that can be drawn from the facts; therefore, she cannot be held to be guilty of contributory negligence as a matter of law.

Damages

In awarding damages the trial court divided the items for which recovery was allowed into six categories: (1) items having market value; (2) used or secondhand household items, clothing, etc.; (3) household utensils, equipment, etc.; (4) furniture, books, bedding, linens, etc.; (5) miscellaneous personal property; and (6) irreplaceable goods and chattels. Frontier Theatres does not complain of the damages awarded by the trial court for the items listed under the first five categories; however, complaint is made that there is no evidence to support the award of $4,833.29 in damages for the following items which are classified as irreplaceable goods and chattels ; two slumber spreads ($666.66); one wedding veil, shoes and point lace collar ($666.66) ; one key-wound heirloom watch ($666.66); two emerald rings ($933.33); one 36 cal. Colt pistol and holster ($500.00); one English letter box ($233.33) ; one cameo pin ($333.33); one coin collection ($666.-66); and one land patent or deed signed by U. S. Grant ($166.66). The record reveals that each of these items was completely destroyed by the fire, and that their character was in the nature of heirlooms. In making its award of damages the trial court deducted 1/3 of the evaluation placed on each of these items by Mrs. Brown; but since no contention has been made by Mrs. Brown that the trial court erred in this regard, we need not consider the propriety thereof.

Frontier Theatres does not attack the reasonableness of the award of damages as. to any of these items, but it is Frontier Theatres’ position that there is no evidence such as will support the award of damages made. In view of the disposition of this case by the Court of Civil Appeals this issue was neither considered nor disposed of; the issue is now properly before this court. We disagree with Frontier Theatres’ contention.

The law recognizes that articles of small market value of which their owner is despoiled may have a special value to him as heirlooms, and there is evidence in the record that with the exception of the coin collection and the land patent the primary value of these items to Mrs. Brown was their sentimental value. For example: the wedding veil, one of the emerald rings, the shoes and the point lace collar belonged to. her grandmother; the pistol belonged to> her grandfather; the watch belonged to her great grandmother; and the two slumber-spreads were made by hand by her great,, great, great grandmothers.

As a general rule recovery for sentimental value for personal property cannot be had in a suit for the loss of property for personal use such as wearing apparel and’ household goods. International & G. N. Railway Co. v. Nicholson, 61 Tex. 550," See also: 1 Sedgwick on Damages, § 251. This rule has been applied in Texas so as. to deny the recovery for sentimental value-in a suit for the loss of heirlooms. St.. Louis, I. M. & S. R. Co. v. Green, (1906), 44 Tex.Civ.App. 13, 97 S.W. 531, no writ hist. However, in our opinion such is-not the rule to be applied in a suit to recover for the loss or destruction of items which have their primary value in sentiment.

It is a matter of common knowledge that items such as these generally have no market value which would adequately compensate their owner for their loss or destruction. Such property is not susceptible of supply and reproduction in kind, and their greater value is in sentiment and not in the market place. In such cases the most fundamental rule of damages that every wrongful injury or loss to persons or property should be adequately and reasonably compensated requires the allowance of damages in compensation for the reasonable special value of such articles to their owner taking into consideration the feelings of the owner for such property. Green v. Boston & Sowell Railway Co., 128 Mass. 221, 35 Am.Rep. 370; Bateman v. Ryder, 106 Tenn. 712, 64 S.W. 48; Pennington v. Redman Van and Storage Co., 34 Utah 223, 97 P. 115; Harvey v. Wheeler Transfer & Storage Co., 227 Wis. 36, 277 N.W. 627; see also: 4 Sutherland on Damages (4th ed.) § 1099; 6 Joyce on Damages, § 1121; 63 A.L.R. 240, 261; 12 A.L.R.2d 902, 929; 15 Am.Jur. — Damages, § 127. Where such special value is greater than the market value, it becomes the only criterion for the assessment of damages. Shewalter v. Wood, Mo.App., 183 S.W. 1127.

As to the coin collection and the land patent signed by U. S. Grant, there is no evidence in the record either as to their market value or their sentimental value; therefore, the award of damages for the coin collection in the amount of $666.66, and the award of damages of the land patent in the amount of $166.66 is not supported and no recovery may be had therefor.

The judgment of the Court of Civil Appeals is reversed, and judgment is here rendered that the Browns take nothing on their claim for damages for the loss of the coin collection and the deed signed by U. S. Grant. In all other respects, the judgment of the trial court is affirmed. All costs are adjudged against Frontier Theatres, Inc_

GRIFFIN, J., dissenting.


author: GRIFFIN, Justice.

text:
    TEXAS EMPLOYERS INS. ASS’N., Petitioner, v. L. D, HAWKINS, Respondent.
    No. A-9459.
    Supreme Court of Texas.
    June 19, 1963.
    Rehearing Denied July 24, 1963.

      Underwood, Wilson, Sutton, Heare & Berry, Amarillo, for petitioner.
    John Herrick and George Busch, Massie Tillman, Fort Worth, Hill, Brown, Kronzer, Abraham, Watkins & Steely, Houston, for respondent.
   GRIFFIN, Justice.

This is a workmen’s compensation suit brought in the district court of Hutchinson County, Texas by respondent L. D. Hawkins, as plaintiff, against Texas Employers Insurance Association, as defendant.

The cause was tried to a jury and on the answers of the jury to the court’s charge, judgment was rendered for the defendant.

On appeal, the Court of Civil Appeals reversed and remanded the cause for a new trial on two grounds (1) that the trial court’s definition of the term “total incapacity” was incorrect and (2) that “the verdict of the jury taken as a whole, which had the effect of awarding only $35.00 compensation for the injury was so against the preponderance of the evidence as to be manifestly unjust.” 363 S.W.2d 788.

Defendant, as petitioner in this court, complains of both these holdings.

The trial court submitted the case to the jury on special issues. In the trial court’s charge “total incapacity” was defined as follows :

“The term TOTAL INCAPACITY does not imply one’s absolute inability to perform any kind of labor, but means that one must be so incapacitated that he becomes disqualified for performing the usual tasks of a workman to such an extent that he cannot procure and retain employment. You are further instructed that the term TOTAL INCAPACITY does not imply that one has such incapacity merely in the event that, after an injury, he is unable to do the same or as much and hard work as he did before the injury, but if one has sufficient capacity for physical work in any employment suited to his experience and condition so that he is fit to find and retain work therein with reasonable regularity and duration, then such person is not regarded as totally incapacitated.”

All parties agree that the first sentence of this definition is the definition of “total incapacity” which has the approval of this court and of many courts of civil appeals. Texas Employers Ins. Ass’n. v. Brock (1931, Comm. of App.), 36 S.W.2d 704 (2, 3), (6); Texas Employers Ins. Ass’n. v. Mallard (1944), 143 Tex. 77, 182 S.W.2d 1000; and the authorities therein cited.

Respondent, in the Court of Civil Appeals, complained of the last sentence of this definition, and particularly that part, “ * * * but if one has sufficient capacity for physical work in any employment suited to his experience and condition * *

We agree that this last sentence should not be included in the definition of “total incapacity” for the reason that, as in the Mallard case, it restricts the injured workman to his own experience and condition, rather than apply the test that in order to be totally disabled such incapacity must only disqualify the injured workman from performing the usual tasks of a workman in such a way as to enable him to procure and retain employment.

From the evidence in the record, when taken in connection with the court’s definition of “total incapacity,” it is not surprising that the jury found plaintiff totally disabled for only the one week he stayed in the Borger hospital and permanently partially disabled thereafter.

We therefore hold that the giving of the second sentence of this definition was harmful error, and the Court' of Civil Appeals correctly remanded the case for a retrial. This Court in many cases has approved the first sentence of such definition as a correct definition of “total incapacity.”

We now come to the second ground of reversal relied on by the Court of Civil Appeals. That is that the verdict of the jury taken as a whole is against the great weight and preponderance of the evidence.

The only findings of the jury attacked by plaintiff in his motion for new trial, and by assignment in the Court of Civil Appeals, were Nos. 4 and 10. These were attacked as being so against the preponderance of the evidence as to be manifestly unjust. The Court of Civil Appeals did not discuss or rule on either of these assignments, but reversed and remanded the case on the third assignment to the effect that the verdict taken as a whole was so against the preponderance of the evidence as to be manifestly unfair. This third assignment is only a general assignment, and makes no attack on any answer to any specific issue.

This Court recently held in Parrish v. Hunt (1960), 160 Tex. 378, 331 S.W.2d 304, that a Court of Civil Appeals must decide that a specific issue or issues are against the great weight and preponderance of the evidence (sometimes called insufficiency) so as to be manifestly unjust before it can reverse and remand a cause. We further held that a Court of Civil Appeals could not reverse on a general holding that either one or the other was so contrary.

We said that a Court of Civil Appeals was not only required to consider and weigh all of the evidence in the case, “and to set aside the verdict and remand the cause for a new trial if it concluded that the verdict was so against the great weight and preponderance of the evidence as to be manifestly unjust, but was also required in the proper exercise of its jurisdiction to determine which one of the jury answers was so contrary to the overwhelming weight and preponderance of all the evidence as to be clearly wrong and unjust.” (Emphasis added).

We, therefore, hold that the Court of Civil Appeals was in error in reversing and remanding this case for another trial only on a general assignment of error.

In view of our holding that the definition given by the trial court of “total incapacity” was reversible error, the petitioner’s other points of error become immaterial.

Having held that the Court’s definition of “total incapacity” was harmful error, it follows that we must affirm the judgment of the Court of Civil Appeals reversing this cause and remanding it to the trial court for a new trial.

This is true although we have held it was error for the Court of Civil Appeals to reverse on the general assignment that the verdict of the jury taken as a whole is so against the great weight and preponderance of the evidence as to be manifestly unjust.

The judgment of the Court of Civil Appeals is affirmed.