text:
    W. C. MULLINS v. KANSAS CITY, Appellant.
    Division Two,
    July 5, 1916.
    1. CITIES: Contracts: Exemption from Operation of Section 2778 by Freeholders’ Charter. A city of one hundred thousand inhabitants or more is not, by the fact that it has framed and adopted a charter of its own, freed from the operation of Sec. 2778, R. S. 1909, requiring contracts of cities to be in writing. Section 9704 does not say that such charter shall supersede all laws of the State, but only- such part of the organic laws then in force as govern and pertain to cities having one hundred thousand inhabitants or more, and section 2778 applies to all municipalities.
    2. -: Contract for Hauling Earth: Greater Distance than Anticipated. Plaintiff and the city entered into a written contract for the construction of an embankment to a settling basin for the city waterworks, and the city before the contract was executed pointed out to plaintiff a close-by hill, owned by it, from which the earth to construct the embankment might be obtained. The written contract provided that “it is expected that earth for the construction of the embankment will be procured on property owned by Kansas City, or on such property as the Board of Pire and Water Commissioners may secure,” and that “the contractor agrees that there shall be no claim for extra work except as he may be directed by” said board "to do extra work;” and the statute required all public work to be done in pursuance to written contracts, entered into before the work was begun. After a part of the earth had been obtained from the near-by hill, it was discovered by the city engineer, who had the ultimate right of decision, that the earth therefrom war- not of the proper quality out of which to construct the embankment, and thereupon the city purchased another hill and directed plaintiff to obtain earth from it to construct the rest of the embankment, whereby the distance of haul was increased 447 feet, which in turn increased the expense of the haul. Plaintiff contended the increased haul was not embraced within the contract, and the jury found as a fact that the board, protesting that it was included in the contract, orally agreed with plaintiff that if he would go ahead and finish the work he would be paid at its completion. He hauled the earth from the further hill, finished the embankment, and sues for the extra expense, having been pail in full according to the contract rates per cubic yard. While he sues specifically for damages for breach of the contract, he contends for payment for the extra haul on a quantum meruit. Eeld, that there can be no recovery on the written contract, nor is the city estopped by the acts of the board from raising the invalidity of the oral agreement.
    3. ---: Estoppel: Contract: Liability for Extra Work. A city is not. estopped to deny its liability to a contractor by the oral promise of its proper committee that he shall be paid for extra work performed by him, where the statute specifically requires the contract for such work to be in writing. The doctrine of laches cannot be made to apply in the teeth of a statute.
    4. -: -: Laches: In Face of Statute: Public Policy: Agency. Statute and charter provisions constitute powers of attorney to the officers of a city, beycnd which they cannot go, and those dealing with such special agents must be held to know the limitations placed upon their powers by those statutes and charter; and when the statute requires the contract for doing a public work to be in writing, the city is not estopped, by laches or otherwise, to deny its liability to the contractor for doing extra work that was not ir anticipation when the contract was made, by an oral promise of its proper committee, made after it was discovered that in order to complete the contract such extra work mr; be done, that if such extra work is done it will be paid for. Plain statutory requirements 'cannot be abrogated by'estoppel.
    Appeal from Jackson Circuit Court. — Hon. Frank G. Johnson, Judge.
    Reversed.

      A. F. Evans, A. F. Smith and J. A. Harzfeld for appellant.
    (1) If the hauling of earth from the more distant borrow pit was outside of and in addition to plaintiff’s obligations under the contract, he would be entitled to compensation for the overhaul only upon showing a written agreement for such overhaul, signed by both parties to such agreement, and at a price agreed upon between him and the city in advance of the ,doing ’of the work, and in the absence of such showing plaintiff’s action must fail. Sec. 6759, R. S. 1899, now See. 2778, R. S. 1909; Cook & Son y. Cameron, 144 Mo. App. 137; Likes v. Rolla, 184 Mo. App. 296; Cotter v. Kansas City, 251 Mo. 229; Construction Co. v. St. Louis, 256 Mo. 341; State ex rel. y. Dierks, 214 Mo. 588; Municipal Securities Corp. y. Kansas City, 256 Mo. 268. (2) The contract executed by the plaintiff also expressly provides, substantially in the language of the statute, that the plaintiff shall not be entitled to make any claim for extra compensation for extra work unless the price for such extra work is “agreed upon in writing at the time but before such extra work is commenced.” Plaintiff’s contract is, therefore, of itself, an answer to any claim for extra compensation in this case. Plumley v. United States, 226 U. S. 545; Ahem v. Boyce, 19 Mo. App. 556. (3) Plaintiff’s contract provided that “it is expected that earth for the construction of the embankments will be procured on property owned by Kansas City or on such property as the Board of Fire and "Water Commissioners may secure. ’ ’ The earth on the property then owned by the city proving unfit for use in the embankments, the Board of Fire and Water Commissioners secured the ground adjoining the property then owned by the city, which was the nearest ground available for a borrow pit. Plaintiff was bound, under his contract, to haul earth from this new ground, ■ and he is not entitled to exact compensation on that account. Wear Bros. v. Schmelzer, 92 Mo. App. 314; Wilson v. St. Joseph, "125 Mo. App. 460; Dearborn Co. v. K. C. Co., 188 Mo. App. 212. All negotiations had prior to the making of plaintiff’s written contract were merged in that contract. I jams v. Provident Society, 185 Mo. 499. Even if all prior negotiations were not merged in the contract finally executed, plaintiff could not base a claim upon the statements of any representative of the city unless it has been established that that representative was authorized to bind tbe city by bis statements. Midland Lbr. Co. v. Kreeger, 52 Mo. App. 418; Walkeen Co. v. Johnston, 131 Mo. App. 699; Cook v. Cameron, 144 Mo. App. 146.

      Fyke & Snider for respondent.
    (1) As there was a written agreement for doing the work generally and there was a written order upon respondent making the change, no further written agreement was necessary because the city in its relation of the waterworks occupies the same position as a private corporation or private individual, and may be bound in the same way. The city by its board ordered respondent to do the work, accepted the benefit of his work, and recognized its obligation, after as well as before the work was done, to pay for it. In all fairness and justice it ought to pay. Water Co. v. Aurora, 129 Mo. 540; Steffen v. St. Louis, 135 Mo. 44; State ex rel. v. St. Louis, 145 Mo. 551; Simpson v. Stoddard County, 173 Mo. 421; State ex rel. v. Gates, 190 Mo. 540; Barree v. Cape Girardeau, 197 Mo. 382; Riley v. Independence, 258 Mo. 671; Hernán v. St. Louis, 213 Mo. 538; McHugh v. Tacoma, 135 Pac. 1011; Contract Co. v. Tacoma, 140 Pac. 373; Audit Co. v. Louisville, 185 Fed. 349; Des Moines v. Welsbach, 188 Fed. 906; 2 Herman on Estoppel, 1365; Laird Norton Yards v. Rochester, 117 Minn. 114; Brantman v. Canky, 119 Minn. 396; Stifel v. St. Louis, 181 S. W. 577. (2) The specifications provide that bidders shall examine the topography of the ground and satisfy themselves as to the distance of the haul, etc. At the time the contract was let the city only owned one tract of ground which was close to the settling basin and the bids were made upon the theory that the earth would be taken from that hill. That it might be taken from some other property a further distance away was not.within the contemplation of the parties and therefore the city had no right without paying respondent the extra cost to send him to a further tract of ground to procure the earth with which to construct the settling basin. Koehring v. Muemminghoff, 61 Mo. 403; Crawford v. Elliott, 78 Mo. 497. (3) Moreover there is no rule of law that prevents parties from modifying or changing the terms of a written contract after it is made, as was done in this case. The specifications which provided that bidders should satisfy themselves as to the distance of the haul, etc., is as much a part of the contract as any other part of it, and the order directing respondent to abandon the hill where he had begun work, and where he had expended a large amount of money, was given after the original contract had been made, and after work had been commenced. The contract could not prevent the parties from changing the written contract by a subsequent parol contract — even if no written order had been given by the board directing the respondent to get earth from the other hill. Parties cannot by written agreement bind themselves not to subsequently waive or modify or change its terms by parol. Burnham v. Ins. Co., 63 Mo. App. 85. (4) Both sides offered evidence as to the reasonable expense of hauling the additional distance, and such reasonable cost was the proper measure of damages. Johnson Co. v. Ice Co., 143 Mo. App. 452. (5) Kansas City, being a city of more than one hundred thousand inhabitants, its charter adopted by the people is its organic law. Sec. 9704, R. S. 1909. Sec. 6759, R. S. 1909, does not apply to cities of one hundred thousand inhabitants, or more, and is not applicable in this case. Kansas City v. Oil Co., 140 Mo. 470; State ex rel. v. Field, 99 Mo. 352; Kansas City v. Bacon, 147 Mo. 259; Brunn v. Kansas City, 216 Mo. 108. But if section 6759 is applicable, then it would seem that section 3728, R. S.-1909, is also applicable. It is a later statute. Miller v. Douglass Co., 204 Mo. 194. (6) The written order to respondent was sufficient written agreement on the part of the board to require him to make this extra haul.
   FARIS, P. J.

— Plaintiff sued defendant for damages alleged to have accrued to him for violation of a contract for the construction of a settling basin for defendant’s waterworks system, and had judgment for $9000. Prom this judgment, after the usual motions, defendant appealed.

The facts shown by the record, so far as they are necessary to understand the conditions existing and the law applicable, are fairly simple, and except upon one point, to which we shall hereafter advert, are practically undisputed. They are, to-wit: That In November, 1908, defendant city was desirous of having constructed at Quindaro, Kansas, an additional settling basin for its municipal waterworks system, and to this end advertised for bids for the construction thereof. Plaintiff was a bidder for the doing of this work. His bid was accepted, and in due course he entered into a written contract with defendant for the doing of the same, under certain Specifications and conditions, which we shall as to pertinent parts hereinafter refer to and set out.

It is an exceedingly difficult task to characterize the petition of plaintiff herein, since it is to an extent sui generis; we shall therefore, in fairness, set out below the salient parts thereof, and which set forth, as we understand it, the position of plaintiff. These are as follows:

“As an inducement to plaintiff to enter into said contract said defendant, by the Board of Light and Water Commissioners, and the chief engineer of the water department, pointed out to plaintiff said tract of ground adjacent to said proposed settling basin, which ground consisted of a large high hill, and represented to plaintiff, and agreed with him, that all the earth necessary to he used in the construction of the embankments aforesaid would be furnished by defendant, and should be taken by plaintiff from said hill, and relying upon said representation and agreement, and being induced thereby, plaintiff duly entered into a contract with defendant to haul and place the necessary earth in said embankment at forty-five cents per cubic yard.
“Said hill so designated by defendant was covered with trees and brush, so that it was necessary for plaintiff to clear off said trees and brush, preparatory to commencing said work, and plaintiff did under the orders and directions of defendant clear off said land at great expense to himself, and did put the same in condition to remove the earth therefrom, and did excavate and remove therefrom and place in said embankment above twenty thousand cubic yards of earth.
“About April 1, 1909, plaintiff was, in violation of said contract, stopped by defendant from taking earth from said adjacent hill, and was, in violation of said contract, by defendant ordered and directed to procure the remaining necessary earth for said embankment from another tract of ground, which was eight hundred and fifty feet further away from said embankment than the hill first herein referred to, and plaintiff was compelled to, and did, under the orders and directions of defendant, procure the remaining necessary earth for said embankment, to-wit, about seventy-eight thousand cubic yards, from said distant hill, whereby plaintiff was put tó great additional cost and expense in clearing the trees off said hill and in hauling the earth said additional distance, and was greatly delayed in the completion of said work, to- his great damage, to-wit: in the sum of thirty thousand and six hundred dollars.
“Wherefore, plaintiff prays judgment against defendant for said sum of thirty thousand and six hundred dollars.”

Upon the trial of the case plaintiff did not offer in evidence the contract above referred to and which was entered into between him and defendant. At the close of the testimony, defendant interposed a demurrer to the evidence, which the court overruled. We merely state this so as to throw light on the attitude of plaintiff as regards the allegations of his petition and not as intimating that such demurrer should have been sustained for lack of offering this contract on plaintiff’s side of the case; for since it was offered by defendant, who did not stand upon its demurrer, it is in the case for all purposes, anyhow.

This contract provides as to the places from which earth for the making of the embankments for the settling basin shall be obtained, thus: “It is expected that earth for the construction of the embankments will be procured on property owned by Kansas City, or on $uch property as the Board of Fire and Water Commissioners may secure(Italics ours.)

At the time of entering into this contract by the parties herein, defendant city owned a parcel of land which adjoined the old settling basin and was near the proposed new one, which was to be constructed by plaintiff and which new one adjoined the old basin. After some 20,000 cubic yards of embankment had been built from earth obtained from the land of the defendant above mentioned, it was discovered by the engineers of the city (who under the contract had the ultimate right of decision as to the quality of materials), that the earth in this land, which consisted of a hill, was not of the proper quality out of which to construct the embankment. It was found that it consisted not of clay, which was required, but of gravel and sand, mixed with boulders, so that it became necessary to acquire another place from which to obtain the necessary earth. The defendant thereupon purchased 80 acres of land adjoining the original hill which it owned and notified plaintiff to obtain the remaining necessary earth for the construction of the embankments, from the latter place. Some ninety-seven thousand cubic yards of earth were • required for the embankments. Plaintiff obtained about twenty thousand cubic yards of this from the old pit, and took the remainder, some seventy-seven thousand cubic yards in all, from the new pit on the land last purchased. Before doing this, however, plaintiff went before the Board of Fire and Water Commissioners (hereinafter for brevity and convenience called simply Fire and Water Board) and complained that the obtaining of earth from the new pit, which was 447 feet from the old pit, or which necessitated an increased average haul of that distance, .was not'within his original contract. The Fire and Water Board contended that it was. Plaintiff seems to have insisted that he should have a written order from said board to go on with this work. The Fire and Water Board made no entry anywhere, or In anywise upon, their records, touching the matter of so-called extra haul, nor of plaintiff’s appearance and contentions; so proof of the matter rests wholly in parol assertion and in parol denial. Relating what transpired before this board plaintiff,. testifying for himself, says: “I went down to them and wanted a written order to go on with this work and I wanted to know how much they were going to pay me for the extra work. At the time Mr. Brent, Mr. Groves and Mr. Meyers were the members of the Fire and Water Board. They wouldn’t enter into any written agreement that evening, but Mr. Groves and Mr. Brent told me I would be paid. They said to- go ahead and do the work and it would be settled for after it was completed.” Plaintiff, as lie states, insisted upon having a written order as to going on with this work and as to change of location of the pit from which he got the earth for the embankments. Shortly after plaintiff appeared before the Fire and Water Board, and had, as he relates, the conversation set out above, said board procured the writing to him by their consulting engineer of a letter, which is referred to by plaintiff as the order to proceed with the work. This letter is pertinent and is, for some reason, much relied on by plaintiff. Omitting signature and merely formal parts, it reads as follows :

“It does not appear as though sufficiently rapid progress is being made in the construction of the settling basin at Quindaro, and it is desired that you employ a larger force in order to utilize fully this favorable season for construction and to secure a rate of progress which is consistent and in harmony with the terms of the contract.
“You have already been verbally notified that the new ground purchased by the Board of Fire and Water Commissioners adjoining the ground from which you are now taking earth for the reservoir embankment, is available for your use under the directions of the constructing engineer and under the terms of your contract.
“Will you kindly give this matter your early attention in order to insure the desired rate of progress?”

This letter, it will be noted, does not recognize the extra haul necessitated as being beyond the original contract, but expressly says that it is within such contract. Plaintiff thereupon proceeded with the work. He constructed the embankments about which this controversy revolves and from time to time, on estimates of the work completed, was paid therefor at the original contract price set out in the written contract between him and defendant, which price and payment he accepted without objection so far as the record shows. He seems to have been paid in full at the contract price for the entire work at its conclusion, and touching any part thereof, except the compensation sued for, arising from increase in length of haul, he makes ho claim.

The written contract made between plaintiff and defendant and referred to above, is exceedingly lengthy. No good, commensurate with the labor and space involved, would be subserved by setting out herein the whole of it. Pertinent parts thereof which will be referred to in our discussion of the case, read thus:

“31. The said Board, of Fire and Water Commissioners shall have the right to make any alterations that may hereafter be considered by them as necessary and desirable in the interest of the city, in lines, grades, forms and dimensions of the work either before or after the commencement of the same, provided such alterations do not materially change the character of the work; but in ease such alterations increase the quantities, the said contractor shall be paid for such increase at specified contract rates, or if no such rates be specified, at cost plus ten per cent; but should the alterations diminish the quantities and the extent of the work, then such alterations' shall not constitute a claim for damages, nor for anticipated profits on the work so altered or dispensed with. It is understood, however, that such alterations can only be made upon the written order of the engineer and approved by formal order of the Board of Fire and Water Commissioners.
“32. The contractor agrees that there shall be no claim for extra work except as he may be directed in writing by the Board of Fire and Water Commissioners to do extra work. Such extra work so ordered will then be paid for in accordance with the schedule of prices named in this contract, or if no such price be named, then in accordance with prices that may be agreed upon in writing at the time, but before said extra work is commenced.”

Much testimony came in upon the trial on plaintiff’s part, tending to prove that prior to the entering into the contract mentioned he had' examined the location of the proposed settling basin and the adjacent hill owned by defendant, and tending to show that he was led to believe that this hill would be the place from which the whole of the earth would be obtained. Objection was made to this sort of testimony by the defendant on the theory that antecedent conversations and dealings were merged in the contract. In passing it may be said, largely as a matter of curiosity, that all three members of the Fire and Water Board testified in the case for defendant; each of them denied categorically that any verbal agreement was made with plaintiff as to paying him extra for the increased haul arising from the change of place of obtaining earth with which to make the embankments. To a slight extent plaintiff was corroborated in a somewhat indefinite way by one Armstrong, who seems to have been clerk of the Fire and Water Board at the time plaintiff went before this Board. Armstrong, upon this point, says: “They didn’t take him up or make any order, I mean that day, but the way they talked was that he should go in there and take the dirt out of there, that is out of this new ground that they had bought, that he should take the dirt from there and they would settle with him afterwards. ’ ’

Many errors in the admission of testimony on the part of plaintiff are urged by defendant; as likewise many errors in the refusal to admit testimony on the part of defendant are called to our attention; but in the view we are constrained to take of the case we think it will be unnecessary to refer to any of these. Defendant upon this appeal relies largely upon the alleged lack of testimony to support the finding and judgment, which point it has raised in divers sufficient ways. Since in its brief the city has chosen to rely upon this, point alone, we will follow it, as we are permitted, in our discussion.

I. The defendant contends that the extra haul . was within the express terms of the written contract and that it should not pay anything on account of it for this reason. Plaintiff denies this and while specifically suing for damages for a violation of this contract, contends for payment for this extra haul upon a quantum meruit, not only conceding but denying the existence of any such written contract as defendant urges is required by section 2778, Revised Statutes 1909. This section reads thus:

“No county, city, town, village, school township, school district or other municipal corporation shall make any contract, unless the same shall be within the scope of its powers or be expressly authorized by law, nor unless such contract be made upon a consideration wholly to be performed or executed subsequent to the making of the contract; and such com tract, including the consideration, shall be in writing and dated when made, and shall be subscribed by the parties thereto, or their agents authorized by law and duly appointed and authorized in writing.”

Plaintiff denies the application of the above section to the affairs of a city having a population of over 100,000 and existing under a special charter, and contends that section 9704, Revised Statutes 1909, sets such a city free from all statutory provisions and restraints.

We do not so construe the latter section. We have an article in our statutes»which contains “laws applicable to citiés with over one hundred thousand inhabitants.” [Art. 16, chap. 84, R. S. 1909.] Said chapter, among» other things, provides that a city having over 100,000 inhabitants may frame, ratify and adopt a charter “for its own government, consistent with and subject to the Constitution and laws of this State.” [Sec. 9703.] Said section 9704 provides that after the ratification and adoption of such a charter^ it shall constitute the entire organic law of such city and shall supersede all laws of this State then in force in terms governing or appertaining to cities having one hundred thousand inhabitants or more.

It will be noted that the latter section does not say that such charter shall supersede all latvs of this State, and stop there, but it modifies and limits the laws so superseded thereby as laws then in force in terms governing cities having 100,000 inhabitants or more. In short, the limitation of said section is as to a particular sort of laws, not general, but such as govern and appertain to cities having 100,000 inhabitants or more. But that is not all of the indicia which point to the meaning and proper construction of said section 9704. The latter section limits the laws which the charter supersedes to the entire' organic law of such city. "We know that under our system and manner of speaking-in this State, we apply the term organic law of the cities of the several classes to the articles and chapters of the statutory laws which govern and regulate the several classes of cities, towns and villages; that in a way, such articles and chapters delimit and fix the powers of such cities, towns and villages in a manner similar to that in which.the Constitution of the State sets bounds to the powers of the three co-ordinate branches of State government. Nor is this all; there is, as we view it and construe it, an express exception to the power conferred on such cities to frame a charter. This exception is that the provisions of such charter shall be “subject to the Constitution and laws of this State” and consistent therewith. [Sec. 9703, R. S. 1909.] This provision and limitation refers to all laws of the State, except those then in force in terms governing and appertaining to cities having one hundred thousand inhabitants or more. So we have no hesitation in holding that this specific contention of plaintiff, viz., the fact that defendant city has framed and adopted a special charter and has over 100,000 inhabitants, does not of itself create immunity against the provisions of said section 2778, and that the provisions thereof apply to Kansas City. [Municipal Securities Co. v. Kansas City, 265 Mo. l. c. 268; Heman Construction Co. v. St. Louis, 256 Mo. 332.] That it applies to cities not under special charter and to counties and municipalities generally, can not, we apprehend, be seriously gainsaid. [Cook & Son v. Cameron, 144 Mo. App. l. c. 142; Anderson v. Ripley County, 181 Mo. 46; Likes v. Rolla, 184 Mo. App. 296; Heidelberg v. St. Francois County, 100 Mo. 69.]

II. But even if said section does make, void a city’s oral contract, it is urged that it does not here apply, because defendant city, through the acts of the members of its Fire and Water Board, is estopped to deny' that it had a valid contract with plaintiff; that is, upon the facts here the law ought not to listen to the defendant upon such a defense. This contention is bottomed upon the facts (which plaintiff avers, and which the then members of the Fire and Water Board deny), that two of the three members of this board orally told plaintiff ‘"‘to go ahead and do the work and it would be settled for after it was completed,” and that plaintiff insisted . upon having and got a written notice to do this work.

While as stated, the then members of this board severally, when called in this case as witnesses, deny this statement, and while the written records of the board are wholly silent about it, and while the written notice which the plaintiff insisted upon getting, contradicts him, his version of it was for the jury. They believed him, and we must, for the purposes of this discussion, accept as true what he says about it. It is, however, conceded, as the quoted excerpts forecast, that no price was agreed on for this work before the work was done, or at any other time.

III. It is in our view idle to consider whether any recovery for this extra haul could be had in a suit at law (in short, in a suit wherein fraud and mistake can cut no figure) upon the original or written contract here, The quoted provisions of section 32 of this contract as to extras, concededly not complied with, and the clause therein providing that the earth for the making' of the embankmetn should be procured on property owned by defendant, or “on such property as the Board of Fire and Water Commissioners may secure,” and may-hap other provisions, utterly preclude recovery, if this action is, or if it were, bottomed on the original written contract. [Plumley v. United States, 226 U. S. 545; Ahern v. Boyce, 19 Mo. App. 552.]

IV. So the discussion recurs to the sole point left: Is the defendant city estopped by the acts of its Fire and Water Board from raising the question of the invalidity of its oral agreement with plaintiff? We do. not think it is. We recognize that the modern doctrine is tending more and more toward the view that a municipality, no more than an individual, ought not to be allowed so to act toward others as to induce them to pursue a course harmful to them and then in the end refuse to comply with the promise inducing such action, so as to save harmless him who was hurt by reliance on the promise made. But will such a doctrine apply in the very teeth of a-public statute which expressly forbids the making of the promise, or contract, in the manner in which it was made here ?

The cases found in this State wherein what for convenience is called estoppel, was successfully invoked against municipalities, will be found to fall largely, if not entirely, into that branch of estoppel called laches. [Boone County v. Railroad, 139 U. S. 684; Simpson v. Stoddard County, 173 Mo. l. c. 466; Dunklin County v. Chouteau, 120 Mo. 577; 2 Dillon on Mun. Corp. (5 Ed.), sec. 951; Town of Montevallo v. School District, ante, p. 217; City of St. Joseph v. Terminal Railway Co., ante, p. 47.] Cases, in other words, wherein through the long neglect of the municipality to assert' a legal right and through pursuing for a long time a misleading course of action touching the subject-matter, he who defends for laches was lured to his hurt, so that it would he uncohscionable to permit the long dormant right to be asserted as to him who was thus misled. [Simpson v. Stoddard Co., 173 Mo. l. c. 466; Town of Montevallo v. School Dist., supra; City of St. Joseph v. Terminal Railway, supra.] In the case of Simpson v. Stoddard Company, supra, the idea that such estoppel is of the sort called laches, is expressly recognized; for it is said: “We take it that it is no longer a disputed question that the doctrine of laches applies to a county or other municipal corporation, as well as to individuals'.”

V. But he this as may be, it is plain that to allow such a doctrine upon a contemporaneous matter to he successfully asserted in the teeth of a statute which forbids, and of which statute plaintiff must he held to know, would be against public policy. Statutes and charter provisions constitute powers of attorney to the officers of municipalities, beyond which such officers may not go. Those dealing .with sneh agents of municipalities must be held to know these statutory and charter powers which effectually limit such officers’ powers and radius of action. Officers of municipalities are not general agents; they are special agents, whose duties are set forth in the statutes which create them and which define their powers, and of these statutes, and therefore of these officers’ powers, the public which deals with them must take notice and govern themselves accordingly. [Lamar Twp. v. Lamar, 261 Mo. 171; Morrow v. Surber, 97 Mo. 155. j Yain and futile would Constitution and statutes and charter be if any officer of the State, or of a county, or of a city, or other municipality, could follow them only when he saw fit. If by estoppel such salutary provisions, enacted with wise foresight as checks upon extravagance and dishonesty, can be utterly abrogated at will by any officer, such provisions then subserve no purpose and the public corporation has no earthly protection against either greed or graft. [Likes v. Rolla, 184 Mo. App. 296; Cook & Son v. Cameron, 144 Mo. App. 137; State ex rel. v. Dierkes, 214 Mo. 578.]

This case illustrates the colossal opportunity for evil allowed by such a view. Here the original contract for this work called for an expenditure of some ninety-three thousand dollars; extra compensation of over thirty thousand dollars was demanded, and compensation for nine thousand dollars worth of such extras was actually found by the jury. Quoting from Woolfolk v. Randolph County, 83 Mo. l. c. 506, it was appositely said in discussing this statute in the case of Anderson v. Ripley County, 181 Mo. l. C. 60:

“ ‘The manifest purpose of the requirement' is that the terms of the contract shall, in no essential particular, be left in doubt, or to be determined at some future time, but shall be fixed when the contract is entered into. This was one of the precautions taken to prevent extravagant demands, and to restrain officials from heedless and inconsiderable engagements. If a person can, without such contract, in the first instance, go on and bind the city as on an implied contract for the value of his services, it would defeat the very object and design of the Legislature in enacting said statute.’ ”

In considering this case from the standpoint of plaintiff’s right of recovery upon a quantum meruit, we have but followed the lead of learned counsel who each elected to choose this battle-ground, which in fact seems far afield from the cause of action pleaded. A line of less resistance might have been found by considering whether, since this is a suit for damages for the violation of a contract, there was in fact any violation of the contract. Or, if there was such a breach, whether plaintiff by continuing work upon it, and by completing it fully, and by accepting without objection, pay under it, did not in fact waive such breach. Other contentions are made which we are told preclude recovery; e. g., the lack of an antecedent appropriation of the money to pay for the work. But the point discussed disposes of it, and since this point is one of law applied to conceded facts, it would subserve no useful purpose to remand it. Let it be reversed.

All concur.


source: Caselaw Access Project

author: WALKER, J.

license: Public Domain

text:
    OCOLA KOHNLE and PHILLIP KOHNLE, Appellants, v. JOHN G. PAXTON et al., Executors of Estate of THOMAS H. SWOPE.
    Division Two,
    July 5, 1916.
    1. CAUSES OF ACTION: Meaning: Survival. The words “causes of action” used in the statute (Sec. 5438, R. S. 1909) declaring that “causes of action upon which suit has been or may hereafter be brought by the injured party for personal injuries” shall survive the death of either the injured party or the party responsible for the injury, mean matters for which actions may be brought, tl 5 right to bring suits, the facts or combination of facts that give rise to rights of action, the right to institute and prosecute proceedings, etc.; and, therefore, it is not the suits or actions that survive, but the causes or rights of action upon which such suits are based.
    2. -: Survival: Limited to Suits Brought. Held, by Walker, X, as to which the other judges express no opinion, that, under Sec. 5438, R. S. 1909, the right of survival of a cause of action for personal injuries cannot be limited to cases in which actions were pending at the time of the death of the .injured party or the tortfeasor. The right of action having accrued, the death of a party in interest before the institution of a suit to enforce such right will not abate the action, or bar the right to bring it. [Disapproving Showen v. Street Ry., 164 Mo. App. 1. c. 47.]
    3. LANDLORD: Duty to Repair: Agreement. A landlord is not bound to keep leased premises in repair in the absence of an agreement so to do. Without such an agreement his liability for defects in the residence is limited to misfeasance; he is not liable for non-feasance.
    4. -: Agreement to Repair: Personal Injuries to Tenant: Liability In Tort. For a breach of a covenant to repair leased premises in possession of the tenant, the landlord cannot beheld liable in tort for personal injuries received by the tenant or a member of his family as a result of a defect in the premises; the obligation to repair being a duty assumed by the contract, its breach does not constitute a tort. And a petition sounding in tort, but disclosing no active' negligence independent of a breach of the contract, does not state a cause of action. [Disapproving Graff v. Brewing Co., 130 Mo. App. 1. e. 623 and 145 Mo. App. 364.]

      5. --: —-: -: Negligence Independent of Contract. •A breach of the contract to repair resulting in personal injuries to the tenant may arise fron the negligence of the landlord, but that is not such technical negligence as will authorize a right of action in tort; an action for tort can only exist independent of the contract for injuries not proximately resulting from the breach and not therefore within the contemplation of the parties.
    6. -: -: -: -: Presumption of Knowledge: Tort not Pleaded. Where the nature of the defect (a worn floor) in the leased premises is as easily discoverable by the tenant as the landlord, a petition charging presumption of knowledge from the landlord’s owne 'ship rather than actual knowledge, and containing no charge of fraud or deceit, does not charge a liability in tort on the landlord’s part for personal injuries received by the tenant.
    7. -: -: -: -: Arising from Ownership. Ownership does not create a presumption of knowledge by the landlord of a particular defect in the leased premises.
    8. -: -: -: -: Latent Defect. A defect in the leased premises alleged to he latent, if easily discoverable by both landlord and’ tenant, is not ground oi liability for personal injuries to the tenant arising therefrom.
    Appeal from Jackson Circuit Court. — Hon. James E. Goodrich, Judge.
    Affirmed.

      Deatherage & Creason and Ross J. Ream for appellants.
    (1) Plaintiffs had good causes of action against Swope for about a year before Ms death. Said causes of action survived to them against his personal representatives even though suits had not been filed against Swope during his lifetime. -R. S. 1909, sec. 5438. (2) Where there is anything, not easily discoverable, on or about the premises rented, rendering such premises dangerous and the lessor has knowledge of such danger, it is his duty to notify the lessee; otherwise he is liable for an injury to the lessee or one of his family caused by such dangerous condition: Meyers v. Russell, 124 Mo. App. 317; Minor v. Sharon, 112 Mass. 447; Hines v. Wilcox, 96 Tenn. 148; Martin v. Richards, 155 Mass. 381; Whitely v. McLaughlin, 183 Mo. 164; Moore v. Parker, 63 Kan. 52; Graff v. Brewing Co., 130 Mo. App. 623; Graff v. Brewing Co., 145 Mo. App. 366. (3) Where a landlord, through his agent, agrees with the tenant as a part of the contract of letting premises, that he will keep the premises in repair and represents that they are then in good repair, and they are not and he does not repair same and some member of the tenant’s family is injured because of defects in the premises, and it is known by the agent at the time of letting, but unknown to the tenant, and because of* its latent nature could not be ascertained by ordinary care on the part of the tenant, and especially where the agent of the landlord under such circumstances did not advise the tenant of such latent defect, then the landlord must answer in damages for injuries to such member of the tenant’s family. Collins v. Fillingham, 129 Mo. App. 340; McGinley v. Trust Co., 168 Mo. 257; 18 Am. & Eng. Ency. Law (2 Ed.), 239-244. (4) Even where the action for personal injuries by a tenant or a member of his family against the landlord is for failure to make repairs agreed to by the landlord at the time of the letting and as a part of the rental contract, still the action is ex delicto and not ex contractu. Graff v. Brewing Co., 130 Mo. App. 623, 145 Mo. App. 366; Meyers v. Russell, 124 Mo. App. 328; Under v. O’Riley, 180 Mo. 655. (5) It is the duty of the landlord to notify the tenant of latent or hidden defects in the premises leased. Myers v. Russell, 124 Mo. App. 328; Wilcox v. Hines, 100 Tenn. 524; Whiteley v. McLaughlin, 183 Mo. 164; Moore v. Parker, 63 Kan. 52. (6) Although the top of the floor in question was worn and so appeared from a view by any person, still the plaintiffs were not guilty of contributory negligence such as to preclude a recovery unless the danger was. so apparent as to threaten immediate injury to them while walking upon the same, and it cannot be said as a matter of law from the allegations of the petitions that the floor in question disclosed any such immediate danger from a view of the top of the floor only. Graff v. Brewing Co., 130 Mo. App. 627; Long v. Hill, 157 Mo. App. 688; Collins v. Fillingham, 129 Mo. App. 345, 53 L. R. A. 778.

      Park & Brown for respondents.
    (1) These causes of action are abated. Causes of action for personal injuries did not before 1907, survive against executors and administrators of tortfeasors. Stanley v. Bireher, 78 Mo. 245; Shippey v. Kansas City, 254 Mo. 23. Causes of action which survive to or against executors and administrators are injuries to property rights. R. S- 1909, secs. 105, 106. Causes of action which have been sued upon for personal injuries not resulting in death survive the deaths of the injuried party and of the wrong doer. R. S. 1909, sec. 5438; Laws 1907, p. 252. This section “applies only to actions pending at the time of the death.” Showen v. Railroad, 164 Mo. App. 47. “Section 5438 provides that if the injured party has already commenced his suit and dies, pending the same, from causes other than the injuries sued for, then the suit survives.” Green v. Railroad, 173 Mo. App. 285. Plaintiffs must bring themselves strictly within the statute. Coover v. Moore, 31 Mo. 576; McNamara v. Slavens, 76 Mo. 331; Barker v. Railroad, 91 Mo. 91; Oates v. Railroad, 104 Mo. 518; Packard v. Railroad, 181 Mo. 428. Statutes of this character, being in derogation of common law, must receive a reasonably strict interpretation. - Clark v. Railroad, 219 Mo. 538. (2) There never was a cause of action, (a) The lessor of premises is under no implied obligation to make repairs upon premises leased and can only be held liable in damages for bis failure to make repairs, under an express agreement or a covenant contained in tbe contract of letting. Glenn v. Hill, 210 Mo. 296; Ward v. Fagin, 101 Mo. 669; Daily v. Yogi, 187 Mo. App. 263; Murpby v. Dee, 190 Mo. App. 83; Roberts v. Cottey, 100 Mo. App. 500; Grant v. Tomlinson, 138 Mo. App. 227; Finer v. Nichols, 158 Mo. App. 544; Koracb v. Loeffel, 168 Mo. App. 414. Tbe law does not imply a warranty that tbe premises are reasonably fit. Doyle v. Railroad Co., 147 U. S. 423; Howell v. Schneider, 24 App. Cas. D. C. 547. (b) Tbe lessor owes no duty to tbe lessee to discover defects which are apparent to ordinary observation, in order that be may warn tbe lessee of possible dangers. Wbitely v. McLaughlin, 183 Mo. 165; Howell v. Schneider, 24 App. Cas. D. C. 532; Bennett v. Sullivan, 100 Me. 122; Shinkle Co. v. Birney, 68 Ohio St. 328; Shackleford v. Coffin, 95 Me. 69; Phelan v. Fitzpatrick, 188 Mass. 237. (c) Tbe landlord’s breach of a contract to repair tbe demised premises, or to keep them in repair, by reason whereof tbe tenant is injured, does not furnish tbe basis for an action in tort by tbe tenant, but bis remedy is an action for damages for tbe breach of tbe contract. Glenn v. Hill, 210 Mo. 299; Daily v. Yogi, 187 Mo. App. 261; Murpby v. Dee, 190 Mo. App. 84; Koracb v. Loeffle, 168 Mo. App. 414; Dice V. Zweigart, 161 Ky. 646; Koracb v. Loeffel, 168 Mo. App. 442; Hendry v. Squier, 126 Md. 19; Dorwin v. Potter, 5 Denio, 306; Leavitt v. Fletcher, 10 Allen, 119; Cook v. Soule, 56 N. Y. 420; Nagle v. Davies, 60 N.' Y. Misc. 479, 113 N. Y. S. 834; 18 Am. & Eng. Ency. Law (2 Ed.), 234; Collins v. Karatopsky, 36 Ark. 316; Hamilton v. F.eary, 8 Ind. App. 615, 52 Am. St. 485; Tuttle v. Gilbert Mfg. Co., 145 Mass. 169; Kabus v. Frost, 50 N. Y. Super. Ct. 74; Spellman v. Bannigan, 36 Hun, 174.
   WALKER, J.

— This opinion embraces two appeals arising from the same transaction. One is from a suit brought by a husband and the other by his wife against the executors of Thomas H. Swope, for injuries to the wife alleged to have been received by her on account of the defective condition of a building occupied at the time by plaintiffs as tenants of Thomas H. Swope, who died before the institution of these actions. Demurrers were sustained to the petitions filed therein and plaintiffs perfected separate appeals. The matter at issue, therefore, is the sufficiency of these pleadings. Barring particular references to the plaintiff in each case, the material allegations are the same, in substance, in both, and for convenience they will be considered together.

The petitions are substantially as follows:

After pleading “the marital relation existing between the parties plaintiff, they allege that the husband, Phillip Kohnle, for a valuable consideration 'rented of Thomas H. Swope, through an agent named S. W. Spangler, a certain house, the property of said Swope, for residential purposes, located in Kansas City, Missouri; that at the time said agent, Spangler, represented the property was in good repair and safe condition for the purpose for which it was let, and agreed, as a part of the contract of rental, to keep the same in good repair during said term; that acting under and influenced by the representations of Spangler, as the agent of Swope, the plaintiff Phillip Kohnle entered upon the premises and took possession and occupied the house thereon as a residence and was so occupying same with his wife at the time she received the injuries hereinafter set forth; that the representations as to the condition of said house were false, and as a matter of fact the under side of the boards and stringers constituting the kitchen floor of said house were, before, at the time of and after said letting of the property to Phillip Kohnle, in a decayed, rotten and dangerous condition; that said condition was latent, hidden and unknown to these plaintiffs, but was known to the said Thomas H. Swope and to his agent, Spangler, or could have been known to them by the exercise of such care as ordinarily prudent persons use under like or similar circumstances, and that said agent negligently failed to advise plaintiffs of the condition of said floor and negligently failed to .put the same in repair; that Ocola Kohnle, one of the plaintiffs and the wife of said lessee, while in the use of said premises and in ignorance of the condition of said floor, stepped upon same and one of the boards of said floor broke causing her to fall through the hole made by said break, thereby producing severe injuries, detailed in the petition, for which plaintiffs seek damages; that said Thomas H. Swope died prior to the filing of these suits.

Other formal allegations, not necessary to be set out here, are contained in the petitions, the reasons urged in support of the general demurrers rendering it unnecessary.

I. Although not so expressly stated, it is evident' from the contentions of the parties that Swope, the landlord, died during the plaintiffs’ tenancy, after the cause of action accrued, but before these sMts were brought. Upon the death of Swope as stated the contention is based that the rights of action abated. This contention seeks support in a construction of section 5488, Revised Statutes 1909, by which the survival of causes of action, upon the death of either party in the class of cases named, and the consequent right of their respective personal representatives to sue or defend, is’ sought to be so limited as to apply only to cases in which suits are pending at the time of the death of the party. For convenience of reference it is well to set forth said section in its own words, as follows:

Section 5438: “Causes of action upon which suit has been or may hereafter be brought by the injured party for personal injuries, other than those resulting in death, whether such injuries be to the health or to the person of the injured party, shall not abate by reason of his death, nor by reason of the death of the person against whom such cause of action shall have accrued; but in case of the death of either or both such parties, such cause of action shall survive to the personal representative of such injured party, and against the person, receiver or corporation liable, for such injuries and his legal representatives, and the liability and the measure of damages shall be the same as if such death or deaths had not occurred.”

Our own court defines “causes of action” as employed in the above section to be matters for which actions may be brought. [Sperry v. Cook, 247 Mo. l. c. 139.] Elsewhere the words are defined as the right to bring suits (People v. Dodge, 104 Cal. l. c. 490); or the fact or combination of facts which give rise to rights of action (Bruil v. Relief Assn., 72 Wis. l. c. 433); or the right to institute and prosecute proceedings (Davis v. State ex rel., 119 Ind. l. c. 558). Notwithstanding the well understood meaning of the words, their explicit definition here is not inappropriate because when otherwise expressed than in the words used in the section it is as clearly disclosed, but not more so than in the statutory words, that it is not the suits or actions that are to survive upon the death of one or both of the parties, but the causes or rights of action upon which such suits are based. The right of survival was extended to suits brought under the section and pending at the time of its enactment as well as to causes of action upon which suits might thereafter be brought. This being true, the right of survival cannot be limited to cases in which actions were pending at the time of the death of one or both of the parties. Such a meaning, under well recognized rules of construction, cannot be given unless words be interpolated or added to the test, which, in view of the unambiguous character of those employed, is not authorized. The obvious meaning of the words employed, therefore, is that when a cause of action accrues under this section, a contingent right to a survival to the personal representative of either party to prosecute or defend, springs into existence upon such accrual, but does not become operative except upon the death of one or both of the parties. The right to the action having accrued, the death of a party in interest before the institution of a suit to enforce such right will not, for the reasonr stated, abate- the action. It not only suffices but is an imperative rule that clear and comprehensive words demand no explanation to define their meaning; or, in other words, that which is clear cannot be made more clear. Sufficient, therefore, in itself, the section cannot, in our opinion, be reasonably construed other than as we have indicated. A contrary conclusion as to the application of the section (5438) was reached by the Kansas City Court of Appeals iñ Showen v. Street Ry., 164 Mo. App. l. c. 47. This conclusion, while somewhat incidental to the material issues in that case, does not correctly state the law and is overruled.

II. The contention as to the insufficiency of the petition is alleged to further consist in the absence of an allegation therein that the landlord agreed to keep the leased premises in repair. The doctrine is well established that a landlord is not bound to keep leased premises in repair in the absence of an agreement so to do. Without such an agreement his liability is limited to acts of misfeasance, but not of non-feasance. Not being bound to repair unless he has agreed so to, do, it follows that injuries to the tenant arising from the landlord’s failure to repair will not give a cause of action to the tenant. [Ward v. Fagin, 101 Mo. 669.] Hence the necessity, in an action for damages by the tenant for injuries received on account of defects in the premises, of the petition alleging that the landlord agreed to keep the premises in repair during the lessee’s term. The petitions allege that the agent of the landlord agreed in the contract of rental to keep the premises in controversy in good repair during the term of plaintiffs’ lease and suitable fór the occupancy of plaintiffs as a residence. The rule announced, therefore, in Ward v. Fagin, supra, and affirmed in the later case of Glenn v. Hill, 210 Mo. l. c. 296, is complied with, and the petitions in this respect are not subject to criticism.

III. A lease or contract of rental existing between the parties, a question not free from difficulty arises as to whether, instead of actions sounding in tort, a suit should not have been brought ^or a breach of the covenant to repair. This question received careful consideration, by this court in Glenn v. Hill, 210 Mo. 291, in which Bubgecs, J., speaking for the court, after reviewing numerous authorities, announced this rule: that when a promise to repair is based upon a valuable consideration and defendants have breached the contract, such breach will not furnish a basis for an action of tort under the statute (now Sec. 5426, R. S. 1909), but the remedy will be an action for breach of- the contract. There is a marked difference, however, between the instant cases and that of Glenn v. Hill. In the former, there was an express agreement to repair incorporated in and made a part of the contract of rental; in the latter, the agreement to repair was made after the lease was entered into and therefore properly held to be without consideration; further, in the former there was a specific charge of negligence, in the latter there was none. These differences disclose a binding contract for repairs in the instant cases, but on account of a lack of consideration there was no such contract in Glenn v. Hill. The court clearly recognized this fact in the latter case, holding that “there is no averment in the petition that under the contract of leasing the defendants agreed to repair, and in the absence of an agreement in the lease binding the landlord to put or keep the premises in repair he is not liable in damages for failure to do so or for injuries sustained by the tenant by reason thereof.” Despite the fact, therefore, that the general rule as to the nature of a landlord’s liability to a tenant under the covenants of a lease is broadly stated in Glenn v. Hill, the decision therein did not turn upon the application of the rule; however, if it be granted that the application of the rule was the determining doctrine the dissimilarity of the facts in the two cases does not render that of Glenn v. Hill an apt precedent in the cases at bar.

Moreover, the cases at bar are stronger in their facts than that of Glenn v. Hill. From the former all question of contributory negligence is removed, because the defect in the floor, as shown by the pleading, while presumptively at least known to the landlord, was unknown to the tenant until the 'injury occurred, while in the latter it was known to both parties at the time of the execution of the lease.

Cases from other jurisdictions discussed in Glenn v. Hill declare the conditions under which one sustaining a contractual relation to another is held not liable in an action sounding in tort; but these conditions are not ruled upon in Glenn v. Hill itself, bé-' cause the facts did not authorize such a ruling. At best the rule as there announced was based upon an assumption and not the existence of a fact, it being conceded that there was no contract to repair, hence there was nothing upon which the rule could operate. This marks another material variance between Glenn v. Hill and the cases at bar, rendering it inapplicable as a precedent in determining the latter cases.

This court, except incidentally, has not discussed the rule since the rendition of the opinion in Glenn v. Hill. Our Courts of Appeals, however, in several well reasoned cases have given the subject careful consideration. The conclusions reached, while not controlling, may be strongly persuasive, and the reasons given for the application of the rule will not, therefore, be lightly, regarded.

In Graff v. Brewing Co., 130 Mo. App. l. c. 623, a landlord in a contract of rental agreed to make suitable repairs in a defective floor. They were not made, and the tenant in the ordinary use of the floor broke through same and received injuries, for which he brought suit against the landlord for damages. A general demurrer was filed to the petition, alleging it did not state facts sufficient to constitute a cause of action. This was sustained and plaintiff appealed to the Kansas City Court of Appeals, which reversed and remanded the case. After reviewing numerous cases discussing the question whether the action should be treated as one arising ex contractu, the court concludes that in an action on a contract damages cannot be recovered for personal injuries caused by a breach of the landlord’s duty to repair, but the question arises whether or not the plaintiff may have a cause of action sounding in tort for. the recovery of-such damages on the ground that the defendant was negligent in failing to perform a duty he assumed when the relationship of landlord and tenant was established between him and the plaintiff; or do the facts pleaded characterize the neglect of the landlord as an act of misfeasance rather than a breach of contract? Johnson, J., speaking for the court, after quoting the somewhat epigrammatic statement of the rule as announced in Quay v. Lucas, 25 Mo. App. 4, that “where a covenant creates a duty, the neglect to perform that duty is a ground for an action for tort,” says: “Logically it must follow that where a duty from one person to another becames an incident to the status or relationship established between them, whether the duty results from the principles of law relating to such status or from the contract of the parties, a negligent omission to discharge it is a tort which will afford the injured party a cause of action ex delicto. Thus, where a common carrier fails to deliver at their destination goods received for shipment, it may be held liable either in an action on the contract or in one arising from the tortious failure to perform a common law duty. The relation of master and servant is invariably created by contract, yet the master may be held in an action ex delicto for his failure to perform the duty of exercising reasonable care to provide his servant a reasonably safe place in which to work. Such examples are illustrative of the soundness and usefulness of the principle under discussion. ’ ’

Following these illustrations the proof necessary to be made to authorize a recovery is discussed. We are not concerned with that here, but as to the sufficiency of the pleading, similar in its material allegations to those in the instant cases. In regard thereto the court said in substance: From the facts alleged it appears that the damages claimed were direct and not remote in that the defendant had knowledge of the defects and covenanted to repair them, and that they were of such a nature that a reasonably prudent person cognizant of same would know that the use of the floor in its defective condition would be attended by iusk of injury. Thus tested the court held that a cause of action was stated and overruled the demurrer.

After the opinion was rendered in the Graff ease by tbe Kansas City Court of Appeals and tbe case had been remanded but not tried, tbe Supreme Court delivered tbe opinion in Glenn v. Hill, supra, whereupon tbe defendant in tbe Graff case again filed a general demurrer to tbe petition. This was sustained by tbe trial court upon tbe ground that tbe Court of Appeals’ ruling contravened tbe opinion of the Supreme Court in Glenn v. Hill. Tbe plaintiff again appealed to tbe Court of Appeals, which held (145 Mo. App. 364) that nothing in its ruling was in contravention of tbe doctrine declared- in Glenn v. Hill; and tbe rule announced upon tbe former appeal was reasserted, the court briefly stating: that while a breach of contractual duty will not authorize an action ex delicto, where tbe breach constitutes more than such duty and is, in addition, a negligent violation of the relation existing between tbe landlord and tenant, an action in tort will lie for injuries arising from such violation.

In Dailey v. Vogl, 187 Mo. App. 261, tbe plaintiff, a tenant, fell or broke through certain defective boards in a walk on tbe rented premises which tbe landlord bad agreed to repair. She sued for damages and recovered judgment. Defendant appealed to tbe Kansas City Court of Appeals. Ellison, J., speaking for tbe court, held, following an exhaustive review of tbe authorities, that she could not recover in tort and questioned tbe correctness of tbe conclusion reached in tbe Graff cases. Tbe result of bis reasoning was that tbe landlord’s liability was limited to bis contract, no other duty resting on him; that be could not be held liable in tort for negligence. Tbe other judges concurred in tbe result in separate opinions. No affirmative declaration of tbe law i*s made by tbe court in this case.

In Murphy v. Dee, 190 Mo. App. 83, a landlord,' in tbe contract of letting, warranted tbe premises to be in good repair and that he would so keep them during the tenancy. Free access was by the terms of the lease given the landlord to enter at any time for the purpose of making repairs. The tenant, discovering the decayed condition of a porch on the premises, notified the landlord of the same, who failed to repair it. On account of such defect the tenant fell from the porch and received the injuries for which he sued and recovered damages. Among other defenses oh appeal to the St. Louis Court of Appeals, it was urged that the petition did not state a cause of action. After a review of many cases the court reached the conclusion that under the allegations of the petition the plaintiff could not recover, as the action was in tort for damages arising out of a breach of contract. Glenn v. Hill and cases therein discussed are cited as sustaining this conclusion. Earlier cases of the Courts of Appeals announce the rule as in Murphy v. Dee, but under the facts upon which they were decided their citation is not appropriate.

A conflict of opinion as to the application of the rule in regard to a landlord’s liability is apparent in the cases reviewed. The Graff cases, on the one hand, and Murphy v. Dee on the other, marking the extreme poles of difference. Lacking harmony like “sweet bells jangled,” we must perforce seek elsewhere for even persuasive light leading to a correct conclusion in the cases before us. Presenting as these cases do the two distinct doctrines as to a landlord’s liability to a tenant for injuries, they serve as a text in the consideration of cases from other jurisdictions.

In other jurisdictions a contrariety of opinion exists in the rulings of courts of last resort on this subject. In addition to the compilation of cases in Glenn v. Hill and the Courts of Appeals cases, an exhaustive presentation of the authorities pro and con will be found in the annotated case of Hines v. Willcox, 96 Tenn. 148, 34 L. R. A. 824, and the affirmance of this case in 100 Tenn. 538, 41 L. R. A. 278. A discussion of Hines v. Willcox will also' be found in our own reports in Whiteley v. McLaughlin, 183 Mo. 160, the disputed question here, however, not being ruled on. Other cases are Dustin v. Curtis, 74 N. H. 266, 11 L. R. A. (N. S.) 504; Walsh v. Schmidt, 206 Mass. 405, 34 L. R. A. (N. S.) 798; Anderson v. Robinson, 182 Ala. 615, 38 Am. & Eng. Ann. Cas. 829; Mesher v. Osborne, 134 Pac. (Wash.) 1092, 48 L. R. A. (N. S.) 917, and cases cited in 24 Cyc. 1114, note 50. An analysis of these and other cases shows that the strong current of authority is in favor of the rule that for a breach of covenant to repair leased premises in possession of the tenant, the landlord cannot be held liable in tort for personal injuries received by the tenant as a result of a defect in the premises. The reason, succinctly stated, for this rule is that a tort is a wrong to another in his rights created by law or existing in consequence of a relation established by contract, but that it cannot be based upon the contract itself; or, stated differently, a duty imposed upon the landlord to make repairs does not arise out of the relation created by the contract, but rests upon an express stipulation in the contract. Being a duty assumed by the contract, its breach does not constitute a tort.

Cases announcing a contrary doctrine are Willcox v. Hines, 100 Tenn. 538; Barron v. Liedloff, 95 Minn. 474; Sontag v. O’Hare, 73 Ill. App. 432; Mesher v. Osborne, 134 Pac. (Wash.) 1092; Lowe v. O’Brien, 138 Pac. (Wash.) 295. These cases declare the rule as in Graff v. Brewing Co., that a landlord may be sued in tort for injuries received by a tenant on account of defective premises which the landlord has contracted to keep in repair. This doctrine necessitates the holding that the landlord in failing to repair has been guilty of something more than a breach of the contract, viz., negligence. Upon no other theory can a basis be established for an action sounding in tort. To sustain the rule as thus announced it is necessary to determine when the contractual obligation ends and the liability for negligence begins. They cannot be coexistent as to matters within the purview of the contract, which, if not forfeited, continues during the time prescribed and loses none of its force or effectiveness by reason of any act of the landlord. The contract not only defines the time and terms of the rental,, but it measures as well the obligations of the parties. Thus complete within itself, it cannot be reasonably said that upon a failure to comply with its conditions a right of action authorized by its terms and within the contemplation of the law, can be supplanted by another not based upon or growing out of the contract, but having its origin purely in a process of reasoning.

A breach of the contract to repair resulting in injuries to the tenant may arise from the negligence of the landlord, but this is not such technical negligence as will authorize a right of action in tort; this can only exist independent of the contract for injuries not proximately resulting from the breach and therefore not within the contemplation of the parties Put more plainly, an agreement to repair does not contemplate a destruction of life or an injury to the person which may result accidentally from an omission to fulfill the terms of the agreement. [Hamilton v. Feary, 8 Ind. App. 615, 52 Am. St. 485, affirmed 140 Ind. 45; Arnold v. Clark, 13 Jones & Spen. l. c. 257; Miller v. Rinaldo, 47 N. Y. Supp. 636.]

In the instant cases it not only appears from the pleadings that the landlord covenanted to repair and keep the premises in a tenantable condition, but that the defect was or could have been known to the landlord and was not known to the tenant. While there is a line of authorities requiring the tenant to be notified of latent defects, and upon a failure so to do holding the landlord liable for injuries arising therefrom, the nature of the defect, in this case a Worn floor, was as easily discoverable by the tenant as the landlord, and since the pleadings charge presumption of knowledge from the landlord’s ownership rather than actual knowledge, in the absence of fraud or deceit this will not serve to fix a liability in tort. Ownership does not create a presumption of a knowledge of the particular condition of premises; and a defect alleged to be latent, if easily discoverable to both parties, is not a ground of liability. [Doyle v. Railroad, 147 U. S. 413; Anderson v. Robinson, 182 Ala. 615; Jackson v. Odell, 9 Daly (N. Y.), 371; Davidson v. Fischer, 11 Colo. 583.]

In the cases at bar the petitions sound in tort, but they do not disclose such active negligence independent of the contract as will support an action of this character. In view, therefore, of the strong trend of authority limiting the right of action in such cases to suits for a breach of the contract, we feel impelled to hold that the plaintiffs have mistaken their remedy. That much may be and has been said to the contrary, especially in the well reasoned cases of Willcox v. Hines and Graff v. Brewing Co., supra, we do not hesitate to admit; but considering the nature of the actions, the relationship of the parties, as landlord and tenant, and the general law in regard to the force and effect of contracts, the doctrine declared in these cases is not approved.

From all of which it follows that the judgment of the trial court is affirmed.

Faris, P. J., and Revelle, J., concur in paragraphs two and three and the result, but express no opinion as to paragraph one.


author: WILLIAMS, C. PER CURIAM.

text:
    THE STATE v. TED OWENS, Appellant.
    Division Two,
    July 5, 1916.
    1. ESCAPING PRISONER: Form Street Commissioner. Under Sec. 4381, R. S. 1909, declaring that “if any person confined in the county jail upon conviction for any criminal offense, or held in custody going to such jail, shall break such prison or custody, and escape therefrom, he shall, upon conviction, he punished by imprisonment in the penitentiarv” etc., a prisoner who has by order of the court been placed in the custody of the street commissioner'and,required to work on the streets, cannot he convicted for breaking custody and escaping from said street commissioner. The statute limits its violation to a breaking and escaping from a county jail or from custody going to jail. Nor«is there any other statute under which a prisoner can he convicted for breaking custody and escaping from a street commissioner while engaged at work in the streets.
    2. -: Construing Criminal Statute. Criminal statutes must he strictly construed. The court cannot, on a plea of a failure of justice, extend a criminal statute beyond the grammatical and natural meaning of the terms it uses.
    Appeal from Howell Circuit Court. — Hon. W. N. Evans, Judge.
    Reversed.

      M. E. Morrow for appellant.
    (1) The indictment charges no offense against the laws of Missouri, as it was not charged that the defendant escaped from an officer having legal custody of him, while going to jail. Sec. 4381, R. S. 1909. (2). The indictment does not charge that defendant was lawfully in the custody of N. P. Webster, the street commissioner, at the time of his escape, nor does it state facts sufficient to show that said Webster’s custody was lawful. Church on Habeas Corpus, • 169. (3) There can be no escape when the defendant was not lawfully in the custody of the officer. ■ The street commissioner could not be the lawful officer unless the county court had made a contract with the city to work the prisoner. Sec. 5281, R. S. 1909.

      John T. Barker, Attorney-General, and Kenneth C. Bears for the State.
    (1) Quaere: Whether the act of the defendant constituted a statutory offense in view of the rule that penal statute must be strictly construed. State v. Chapman, 33 Kan. 134; Commonwealth v. Homer, 46 Mass. 555. (a) Cases wherein strict construction prevailed: McClintic v. Lockridge, 11 Leigh, 253; Welsh v. State, 61 S. E. (£3a. App.) 496; State v. Pishner, 52 L. R. A. (N. S.) 369. (b) Cases wherein there was a more liberal construction: Commonwealth v. Briggs, 46 Mass. 559; Commonwealth v. Adams, 3 Pa. Super. Ct. 167. (2) If other difficulties do not prevent we ask that the cause be remanded so that a trial can be had upon á common law offense. Secs. 8047-8048, R. S. 1909; 2 Hawkins, P. C., 189; Commonwealth v. Farrell, 87 Mass. 130. (3) Before a conviction can be had of the offense of escape there must be lawful custody. Daniel v. State, 114 Ga. 537; Saylor v. Commonwealth, 122 Ky. 776. Quaere: Whether the custody in this case was lawful since there was no order from the county court permitting the street commissioner to have charge of the defendant. Secs. 3731-3733, 4915, 5281, R. S. 1909.
   WILLIAMS, C.

— Under an indictment attempting to charge the defendant with a violation of section 4381, Revised Statutes 1909, defendant was tried in the circuit court of Howell County, found guilty and his punishment assessed at two years in the penitentiary. Defendant has duly perfected an appeal to this court. ,

Due to the conclusion which we have reached in this case, it will only be necessary to consider the indictment, which, omitting caption and formal parts, was as follows:

“The grand jurors for the State of Missouri, summoned from the body of Howell County, impaneled, sworn and charged to inquire within and for the body of the county of Howell, now here in court, upon their oath present and charge that at the March term, 1915, at and in the county of Howell and' State of Missouri, one Ted Owens was then and there duly convicted and found guilty by a jury, of the-offense of felonious assault and his punishment fixed at a fine of one hundred dollars, in default and failure to pay which in accordance with said conviction, he, the said Ted Owens, was by the said court duly committed to the county jail of said county, and it was ordered by the court that he, the said Ted Owens, be placed in custody of the street commissioner of the city of West Plains, a city of the third class, and required to work on the streets of the said city, until said fine and costs of said action be paid and he be discharged by due course of law; and that in accordance with the orders of said court the said Ted Owens was so committed to the custody of one N. F. Webster who was then and there duly qualified and acting street commissioner and guard, to be worked as a prisoner on the streets of the city of West Plains, as afpresaid, and that afterwards, to-wit, on the-day of May, 1915, at and in the said city of West Plains, in the county of Howell and State of Missouri, the said Ted Owens, while then and there in the custody of the said N. F. Webster, street commissioner and guard aforesaid, did then and there unlawfully, willfully and feloniously break custody, run away and escape from the said N. F. Webster, street commissioner and guard aforesaid, and that the said N. F. Webster was then and there duly authorized and empowered to act and was then and there acting as such officer, street commissioner and guard under and by authority of law; and that the said Ted Owens did then and there unlawfully and feloniously break away, run and escape from the custody of the said N. P. Webster, street commissioner, officer and guard as aforesaid; contrary to the form of the statutes in such cases made and provided and against the peace and dignity of the State.”

Section 4381, Revised Statutes 1909, upon which this prosecution was based, reads as follows:

“If any person confined in any county jail upon conviction for any criminal offense, or held in custody going to such jail, shall break such prison or custody, and escape therefrom, he shall, upon conviction, be punished by imprisonment in the penitentiary not exceeding three years, or in a county jail not less than six months, to commence at the expiration of the original term of imprisonment.”

It will be noted that the above section limits the violation to a breaking and escaping from a “county jail” or from “custody going to jail,” and the statute in no manner undertakes to prescribe a penalty for escaping from a street commissioner into whose custody he is placed for the purpose of being worked upon the streets, as charged in the present indictment. Our attention has not been called to a statute nor have we been able to find one making the acts charged in the present indictment a criminal offense. As much is virtually conceded by the brief of the learned Attorney-General. This being true, we need not determine whether the information sufficiently charges a lawful custody in said street commissioner.

It is a well established rule that criminal statutes must be strictly construed. Very appropriate to the discussion here is the language used by the Kansas Supreme Court in discussing a section (182) of the Kansas Code which appears to be almost an exact duplicate of section 4381, Revised Statutes 1909. The court said:

“Section 182 has reference to persons confined in a county jail or held in custody going to such jail. As a rule, penal statutes must be strictly construed, and they cannot be extended beyond the grammatical and natural meaning of their terms, upon the plea of failure of justice. [Remmington v. State, 1 Ore. 281; State v. Lovell, 23 Iowa, 304; Gibson v. State, 38 Ga. 571.]
“We are not at liberty to interpolate into the statute ‘city prison’ nor can we judicially determine that a ‘city prison’ is a ‘county jail.’ It is therefore our opinion that the matters charged in the information do not constitute any. offense within the statute. The omission is one for which the Legislature is responsible. It is probably a casus omissus, which the Legislature may, but the court cannot, supply.” [State v. Chapman, 33 Kan. 134.]

t The judgment is reversed and the defendant discharged.

Roy, C., concurs.

PER CURIAM.

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

All of the judges concur.