author: BOND, C. PER CURIAM. WOODSON, J.

text:
    VIRGINIA R. S. BUCHANAN et al., Appellants, v. LOUISIANA PURCHASE EXPOSITION COMPANY and MISSISSIPPI VALLEY TRUST COMPANY.
    Division One,
    July 11, 1912.
    1. BILL OF EXCEPTIONS: Order of Approval: Signature of Trial Judge: -Nunc Pro Tunc Entry. Where an order approving the bill of exceptions was made by the trial judge on the 15th of September, 1908, and was entered in the vacation docket on that date, and a recital thereof on the same day was entered on the judgment roll, but the trial judge failed to sign .the order at the time he made it, such omission is cured by the affixing of his signature by the judge April 3, 1912.
    2. LEASE: Covenant for Delivery oí Possession: Breach. A lessee who, though bound by his lease to deliver to the lessors on a day certain the free and peaceable possession of every part ' of the lands, puts a wrecking company on the property which, while tearing down buildings erected by the lessee, remains thereon for 150 days after the expiration of the lease, is liable in damages for a breach of his covenant.
    3. --: -: -: Penalty. Plaintiffs leased to the Louisiana Purchase Exposition Company seventy-five acres of unimproved land contiguous to the park allotted by the city for exposition purposes and therefore indispensable to the exposition company, at a yearly rental of $12,000. The exposition company, after the World’s Pair closed, contracted with a wrecking company to remove the buildings on the leased property, and the wrecking company failed to remove from the premises until 150 days after the expiration of the lease. The lease provided that the lessee should pay sixty-six dollars a day for every day the property should be withheld from the lessors after the expiration of the lease, or nearly twice the amount of the rent required under the lease. JIM, that the provision for sixty-six dollars a day was a penalty, and that the recovery of the plaintiffs should be measured within the limits of the contract by what they were actually damaged by being kept out of possession.

      Held, by WOODSON, X, that, the sum fixed by the lease for withholding the premises being the same as that fixed by Sec. 7879, R. S. 1909, as damages for withholding leased property, the provision should not be held void.
    Appeal from St. Louis City Circuit Court. — Hon. Hugo Muench, Judge.
    Reversed and remanded.

      Lyon $ Smarts and W. M. Williams for appellants.
    (1) Tire contracts between the exposition company and the wrecking company show tbe latter was to liave possession of tbe land, and was a subtenant, at least fo,r suck time, up to June 30, 1905; as would be necessary for tbe removal of tbe structures on tbe land, (a) Tbis is apparent from tbe language of tbe contracts and tbe conferences attending their execution. Meyer v. Christopher, 176 Mo. 580; County v. Wood, 84 Mo. 507; Pickering v. O’Brien, 23 Pa. St. 125; Heywood v. Palmer, 18 L. R. A. 49; Alcorn v. Morgan, 77 Ind. 184. (b) Tbe construction given to tbe contracts by tbe parties is tbe best evidence of tbe meaning to be attributed to them. Tbe letters from tbe exposition company demonstrate that a failure by tbe wrecking company to remove tbe buildings before tbe expiration of tbe lease would constitute a bolding’ over by the exposition company. Myer v. Christopher, 176 Mo. 505; Rose v. Carb. Co., 60 Mo. App. 28. (c) It is apparent from tbe practical construction of tbe contract by the parties in giving tbe actual physical possession of the land to the wrecking company and in depriving the appellants of any opportunity to enter upon the land. Depot Co. v. Railroad, 131 Mo. 305; Dickson v. Railroad, 168 Mo. 90. (2) The possession of the land by the wrecking company, upon the termination of the lease and thereafter, is equivalent to the holding over by the exposition company, and that irrespective of the relation between them. Jones on Landlord & Tenant, Sec. 544; Kerr v. Simmons, 8 Mo. App. 431; Hughes v. Hood, 50 Mo. 353; Schilling v. Holmes, 23 Cal. 230; Mason v. Wierengo, 113 Mich. 153; Henderson v. Squire, 19 L. R. A. 601; Lubetkin v. Brewing Co., 21 Abb. N. C. 304; Sullivan v. Rdngler, 171 N. T. 593; Bacon v. Brown, 9 Conn. 334; Dimock v. Van Bergen, 12 Allen, 551; Morgenthau v. Beaton, 88. N. V. Supp. 359Brewer v. Knapp,' 1 Pick. 355; Moffatt v. Smith, 4 N. V. 126, (3) The various buildings and structures erected by the exposition company practically covered the land leased to it. The act of the exposition company in permitting all of this property to remain on the land after the expiration of the lease, and in the same condition as prior to such expiration constitutes a holding over. The law demands of the tenant, upon the termination of the lease, a delivery in fact, not. theoretical, of free and peaceable possession. McAdam on Landlord & Tenant (3 Ed.), p. 90; Taylor on Landlord & Tenant, Sec. 524; Stevens v. Pautkind, 95 Mich. 145; Darr v. Barney, 12 Hun, 259; Oussani v. Thompson, 43 N. Y. Supp. 1061; Schuyler v. Smith, 51 N. Y. 309; Vosburgh v. Corn, 23 App. Div. (N. Y.) 147; Cavenaugh v. Clinch, 88 Ga. 610; Lubetkin v. Brewing Co., 21 Abb. N. C. 304. (4) Tfie wrecking company was the agent of the exposition company to keep, the latter’s obligation to the appellant’s to remove the buildings, structures and debris. Where a tenant remains in possession after the termination of the lease, either by himself or his agent, to remove property which the tenant is under obligation to remove, it is a holding over by the tenant.

      Joseph E. Zumbalen and Ferris & Ferris for respondents.
    (1) The record proper does not show any order of court directing the bill of exceptions to be filed and made part of the record; hence there is nothing here for review but the pleadings and judgment. R. S. 1909, Sec. 2029; State v. Paul, 203 Mo. 685; Hill v. County, 195 Mo. 514; Harding v. Bedoll, 202 Mo. 634; Alt v. Dines, 227 Mo. 422; Dev. Co. v. Iron Co., 98 Va. 700; Hake v. Strnbel, 121 111. 321; 4 Wait’s Practice, 573; 15 Ency. Plead. & Pr. 340. (2) (a) By the contract óf sale from the exposition company to the. wrecking company, the latter acquired no interest in or right of possession to the land, but only a license to go upon the land for the purpose of dismantling and removing the buildings and -other personal property. The exposition company by. the terms of the contract, and as a matter of fact, retained complete possession of the demised land to the end of its term. 25- Cyc. 649'; Tiedeman, Real Property, Secs. 651, 652,18 Am. & Eng. Ency. Law (2 Ed.), 1127, 1128; Hanly v. Wood, 2 B. & Aid. 736-; Lunsford v. Lead Co., 54 Mo. 426; Chynowitch v. M. & S. Co., 74 Mo. 173; F. & M. Co. v. Cole, 130 Mo. 1; Love v. Am. S. Co., 89 Mo. App-.- 680; Nelson v. Nelson, 30 Mo. App. 189 ; Boone v. Stover, 66 Mo. 430; Rochester v. Mining Co., 86 Mo. App. 447; Reed v. Maryfield,' 10 Met. (Mass.) 155; Glynn v. George, 20 N. H. 114; Fish v. Capwell, 18 R. I. 667; Bruley v. Garvin, 105 Wis. 625; Percival v. Chase, 182 Mass. 375; Rockport v. Granite Co., 177 Mass. 246; Rogers v. Cox, 96 Ind. 157; Constant v. Abell, 36 Mo. 180-. (b) The possession of the land being with the exposition company, its withdrawal from the land on the last day of its term, together with its written notice of surrender of the premises to the lessors on that day, revoked the license granted to the wrecking company and released the exposition company from all further obligation to pay rent. May v; Luckett, 48 Mo. 473; Walser v. Graham, 60 Mo. App. 329; Mitchell v. Blossom, 24 Mo. App. 48; 13 Am. & Eng. Ency. Law (2 Ed.), 653. (c) Clauses 4 and 8 of the lease are independent of each other, so that a breach of the former covenant by failure to remove buildings, etc., during the term, would not of itself constitute a holding over which would render the exposition company liable for rent under the latter. Mitchell v. Blossom, 24 Mo. App. 48; Speers v. Flack, 34 Mo. 101; Ketckam v. Ochs, 70 N. Y. Supp. 268; Thomas v. Frost, 29 Mich. 336.
    Statement. — Plaintiffs sue on a bond executed by defendants to secure the performance of the covenants of a lease of about seventy-five acres of land, made by plaintiffs on the first day of July, 1902, to defendant, the Louisiana Purchase Exposition Company, for a term.of three years. The rent reserved was $12,000' per year, payable in monthly installments. The contract of lease required the execution of the bond sued on before the lessee should enter into possession of the premises, and required the lessee to remove, at its own expense, all nuisances created on said lands with its permission or license, and all buildings put on them by defendants’ permission or license, and all debris thereon before the end of the term; and also at the termination of the lease to deliver “the free and peaceable possession of every part of said lands” to the lessors. The contract contained a further clause binding the lessee to pay to the lessors sixty-six dollars for each and every day it failed to deliver said lands after the termination of the lease, whether by limitation or forfeiture.

      The petition counts upon an alleged breach of the foregoing stipulations, claiming $3000' for failure of the lessee to comply with the obligation as to removal, and claiming further for an alleged breach of a covenant to surrender possession, damages in the sum of $9900, being sixty-six dollars per day for the 150 days after the termination of the lease during which there was a failure of delivery of the lands. The bond in suit was executed by the lessee and its co-defendant in the sum of $50,000, and was made payable to plaintiffs in this action on condition to be void on the faithful performance of the covenants contained in the lease.
    The answers of defendants were general denials, except the admission of their respective corporations. Jury was waived, and the cause was submitted to the court. It appeared on the trial, that on the day of the cessation of the World’s Fair (November 30, 1904) to whose use this land had been let, the exposition company made a sale of all the buildings, structures and materials situated on this land and elsewhere, which had been used by it for exposition purposes, to the Chicago Wrecking Company; that the purchaser of said property mortgaged it back to the exposition company to secure some deferred payments of the price; that the wrecking company took possession immediately and began the demolition of the agricultural building, which was situated entirely across the lands leased by plaintiffs to the exposition company. During the course of their work, the wrecking company received three letters from the exposition company, calling attention to the contract of the lease of the land in controversy and the provision therein as to the payment for each day the lessee should fail to deliver possession, and urging the wrecking company to expedite and conclude its work so that the lands' could be surrendered as prescribed in the lease; and stating that unless this was done the exposition company would employ men for that purpose at the expense of the wrecking company; and adding, “We shall turn over the leased property to the owners thereof, and so far as the exposition company is concerned surrender complete possession” at the expiration of the lease. The wrecking company did not remove the property purchased by it before the date of the expiration of the lease to the exposition company (June 30, 1905) but continued the occupancy of said lands and the removal of property therefrom for 150' days after said date. When the wrecking company left the premises there remained thereon considerable debris and much of the foundations of the buildings, to remove which involved great expense to the lessors. On the date of the expiration of its lease the exposition company, by letter, June 30, 1905, informed the lessors that final payment of rent had been made according to the terms of the lease, and notified them that said lessee surrendered, yielded up and entirely withdrew from the possession of all parts of the land described in said lease. On the day following, July 1, 1905, the exposition company notified the wrecking company that the property in question had been turned over to the lessors, and advised it to arrange with the owners of the land for permission to move its property or to have it remain thereon. To the letter of June 30, 1905 to them, the plaintiffs replied calling the attention of the exposition company to the several clauses of its lease, and stating that there had been no delivery in fact- of the premises notwithstanding what was stated in said letter to them. The exposition company did nothing further in the matter.
    Upon these facts the trial court rendered judgment for $1200 in favor of plaintiffs as damages for the failure to remove the debris on the ground and 640 poles standing in the soil thereof, and other items. No appeal was taken from this finding. The trial court further held that the foregoing facts constituted no breach of the stipulation in the lease to surrender the premises, and that plaintiffs could recover nothing on that count of their petition. Prom a judgment in accordance, plaintiffs appealed.
   OPINION.

BOND, C.

— I. It is insisted by respondents, that the order of approval of the bill of exceptions which was made in vacation was not then signed by the trial judge, and that this omission is fatal to the consideration of said bill on appeal. It appeals, however, from a supplemental abstract filed by appellants, a certificate . of the clerk, and also the certificate of the trial judge, that an order approving the bill of exceptions was made by the trial judge on the 15th of September, 1908, and was entered in the vacation docket on that .date, and a recital thereof on, the same day was entered on the judgment roll, and that the omission of the trial judge to affix his name to this order at the time he made it was supplied by his subsequent signature affixed on the 3d of April, 1912. ' This nunc pro tunc entry cured the imperfection. [R. S. 1909, Secs. 2119, 2120; Cooley v. Railroad, 149 Mo. 487.] The record proper shows the entry of an order permitting the filing of the bill of exceptions in this case in vacation and prior to the 4th of October, 1908. It was approved and endorsed by counsel for respondent, and submitted to the trial judge to be signed, approved and ordered to be made a part of the record within the currency of time previously allowed appellants. The only irregularity that occurred was his omission to affix his signature to a proper order of approval and directing the record of the bill of exceptions made by him. This having been properly rectified, the bill of exceptions was filed in substantial compliance with the statute. [R. S. 1909, Sec. 2029.] And we overrule the contention of respondent on this point.

II. Appellants assign for error tlie refusal of the trial court to make any finding in their favor under the clause of the lease providing for the surrender of the premises at the expiration of the term. This clause obligated the lessee to deliver to the lessors the free and peaceable possession of very part of said lands, or in default thereof to pay sixty-six dollars for each day it was withheld. This provision of thé contract was unconditional, unambiguous and certain in its terms, and clear and distinct in meaning. At the time of the accrual of this obligation, the wrecking-company was in possession of the lands, engaged in tearing down and removing the buildings and structures and material thereon, which had been sold to them by the lessee. The possession „of the lands by the wrecking- company was acquired under contract and in privity with the lessee, and was used by it for the purpose of taking away its own property and of discharging the obligation of removal assumed by the lessee under the terms of the lease to it. Neither of these duties had been fully performed by the wrecking company on the 30th of June, 1905, the date of the expiration of the lease to the exposition company. The impossibility of then delivering the premises was the direct result of the action of the lessee in putting the wrecking company on the premises to do work of a kind that necessitated the possession of the lands until fully performed, and which had not been done at the expiration of the lease. The failure of the wrecking company to remove the buildings and structures on the land before the expiration of the lease to' the exposition company, and the continued occupancy of the property thereafter by the wrecking company constituted a breach of the unconditional contract on the part of the exposition company that the wreckage should be removed before, and the premises delivered .at the time of the expiration of the lease to it. Its liability for the first breach was properly adjudged by the trial court, and no appeal was taken from that finding. That it should have been adjudged also for the second breach, we think, under the facts of this case, 'can admit of no doubt. There is no principle of law better settled than that a breach by the promisor of his unconditional contract lawfully entered into, is not to be excused by any act of his own or those in privity with him which prevented or rendered impossible the performance of his agreement. [Jones v. United States, 96 U. S. 24; Clark on Contracts, Sec. 281, p. 679.] In this case the only obstacles to the performance of the positive engagement made by the exposition company to put its lessors in the full possession of every part of the leased premises at the expiration •of the term, was- caused by the occupancy of the lands of persons in privity with the lessee. This was not a contract known, when made by the parties thereto, to be impossible of performance. It was not unlawful when made nor did it become so afterwards. Hence it could not be breached by the promisor without answering in damages. The particular relationship of the wrecking company to the lessee, whether tenant or licensee, is a matter of no legal significance. The wrecking company was on the premises by virtue of a possession delivered to it by the lessee, and the lessee was legally powerless to deliver to anyone a possession which could thereafter be used to defeat, its own obligation to restore the premises to its lessors. Whatever the status of the wrecking company, it was created solely by contract with the exposition company, and' hence made the contractee, the wrecking company, a privy of the contractor. This is self-evident. When the time came to vacate the premises, the exposition company simply proposed itself to withdraw but did not propose to compel the withdrawal of the wrecking company, whom it had previously placed in possession of the premises, and who refused to withdraw but continued for 1501 days thereafter to hold possession against the lessors. In the face of these facts, the proposal contained in the letter of Jnne 30, 1905, from the lessee „to the. lessors was an inutile formality which did not amount to a surrender of the premises either in fact or in law, for at the time it was written the lands were in the adverse occupancy of the wrecking company under the possession given to it hy its contract with the exposition company, and neither in said letter nor otherwise did the exposition company propose to effectuate its tender of surrender of the premises by dispossessing the wrecking company. The responsibility of the exposition company to its own lessors was full, complete and binding under the terms of the lease and could not he changed or shifted to another without the consent of its lessors. It is not claimed that the lessors have in any manner consented that the contract of the exposition company with them should he lessened or altered by the results of the contract made between the exposition company and the wrecking company. Certainly the exposition company can no more defend a breach of its own contract by setting up the wrongdoing of one whom it placed in a position to cause such breach, than it could to set up its own act as the defense to such breach.

Our conclusion is, that the failure of the exposition company to turn over to its lessors the free and peaceable possession of every part of their land on the 30th of Jnne, 1905, was a breach of its covenant so to do, and that the trial court erred in its ruling to the contrary.

III. The important question in this case is the extent to which plaintiffs should recover for breach of the contract to surrender the premises. By the terms of the lease, the damages stipulated therein are “a rental of sixty-six dollars for each and everyday that the said lessee fails to deliver said lands or any part thereof.” Was this snm a penalty or a proper liquidation of damages? This must be determined by the intentions of the parties, the subject-matter of the contract, and the surrounding circumstances, for it 4s the established law that the inclusion of a penalty in a contract is not obviated by terming it liquidated damages or using any other form of expression for the purpose of disguising an attempt to enforce a penalty under the form of a contract. Disregarding nomenclature and turning to the essential character of the damages referred to in the contract, a comprehension of their real nature can be arrived at by considering, (1) whether the damages following a breach of the agreement are such as can be definitely or readily ascertained by evidence or fixed rules of computation; or, on the other hand, whether the damages are such that it would be difficult, if not impossible, to measure them by any exact pecuniary standard or calculate them with approximate accuracy. In the first instance, if the amount stipulated is- greatly disproportionate to the loss following a breach of the contract, the court will construe it to be a penalty and restrict the recovery to such damages as were actually suffered. In the second instance, if the amount specified appears to be a reasonable estimate of undefinabie and unascertainable damages, the court will construe it as a proper liquidation and enforceable according to the agreement of the parties. • A clear statement of the basis of this doctrine, after a review of the decisions, is made by Mr. Sutherland: “To be potential and controlling that a stated sum is liquidated damage, that sum must be fixed as the basis of compensation and substantially limited to it; for-just compensation is recognized as the universal measure of damages not punitory. Parties may liquidate the amount by previous agreement. -But when a stipulated sum is evidently not based on that principle, the intention to liquidate will either be found not to exist or will be disregarded and the stated sum treated as a penalty. Contracts are not made to- be broken; and hence, when parties provide for the consequences of a breach, they proceed Avith less caution than if that event Avas certain, and they Avere fixing a sum to be paid absolutely. The intention :n all such cases is material; but to prevent a -stated sum from being treated as a penalty the intention should be apparent to liquidate damages in the sense of making just compensation; it is not enough that the parties express the intention that the stated sum shall be paid in case of a violation of the contract. A penalty is not converted into liquidated damages by the intention that it shall be paid; it is intrinsically a different thing, and the intention that it shall be paid cannot alter its nature. A bond, literally construed, imports an intention that its penalty shall be paid if there be default in the performance of the condition; and formerly that was the legal effect. Courts of law now, however, administer the same equity to relieve from penalties in other forms • of contract as from those in bonds. The evidence of an intention to measure the damage, therefore, is seldom satisfactory AV'hen the amount stated varies materially from a just estimate of the actual loss final!a sustained.” [1 Sutherland on Damages (3 Ed.), Sec. 283, pp. 722-730; Basye v. Ambrose, 28 Mo. l. c. 45; Potter v. McPherson, 61 Mo. 240; Cochran v. Railroad, 113 Mo. 359; May v. Crawford, 150 Mo. l. c. 531, 532; Thompson v. St. Charles County, 227 Mo. l. c. 238; Davis v. Gillett, 52 N. H. 126; Muldoon v. Lynch, 66 Cal. 536; Clements v. Railroad, 132 Pa. St. 445; 13 Cyc. 91, 92, 93, 94, 95, 96 and 97.]

In the case before us the subject-matter of the lease was termed ‘ ‘ acre land. ’ ’ It contained°no houses or buildings, and had no rental value for such purposes. It could only have been, rented for farming or tillable, purposes. The productive or income value thus arising was a matter of definite and easy ascertainment. With no buildings or improvements on it, it could only have a value for urban purposes not requiring these, or for farming purposes. Whether its market value for either purpose was increased or diminished during the five months plaintiffs were deprived of its possession was a matter within the knowl- - edge of competent witnesses. A stipulation for damages at the rate of sixty-six dollars per day seems to be out of just proportion to the loss actually suffered by plaintiffs. The land in question was so situated that its acquisition for their purposes became practically indispensable after the location of the World’s Fair, for it was contiguous to the portion of the park allotted by the city for that purpose. Under the stress of the necessity to obtain it, the exposition company paid $1000 a month for its temporary use. The lessors, however, prescribed as a further condition, that in case, the property was not redelivered on the day of the expiration of the lease they should receive $1980 per month, or about twice what they had been able to obtain during the continuance of the lease. We think the inclusion of this large sum although termed a rental, was the insertion of a penalty in the lease contract far beyond any loss which the lessors experienced by the constructive holding over of the premises for five months, and that the recovery of plaintiffs should be measured within the limits of the contract by what they were actually damaged by being kept out of possession of their “acre land” for the time stated. A fair and just measure of the damages actually sustained by the lessors can be ascertained and definitely fixed upon a hearing of relevant testimony on a retrial of this case. To that extent they should recover for the breach of the covenant to surrender the premises on the part of the exposition company, in that it failed to cause the removal, by legal necessary steps, of the persons whom it placed in possession of the premises and who continued thereon after the expiration of the lease. In all other respects the exposition company sought in every possible way to restore these premises at the time it agreed to do so. It clearly was not guilty of a willful holding over. Hence the statutes (R. S. 1909, secs. 7877, 7879) have no application.' Neither was there anything in the facts in this case which likens it to the case before the court where it was ruled that a lessee might make a valid agreement for liquidated damages enforceable as such where it appeared that he had rented a city building subject to forfeiture of the lease thereof in case of alterations without the consent of the lessor and that he made such alterations and refused thereafter to surrender the property. In that case the court said: “In thus voluntarily retaining the property, it is to be presumed that he considered the use of it of greater value to him than the double rent. ’ ’ [Walker v. Engler, 30 Mo. l. c. 134.]

In the case at bar the lessee had no intention to retain possession and used every effort, except force or legal process, to remove the party whom it had let into possession of the property. Moreover, the future possession of this vacant land could have been of no possible advantage or benefit to the lessee,, since the purpose for which it had been rented ceased to exist after the close of the fair.

For the foregoing reasons, the judgment is reversed and the cause remanded.

Broion, G., concurs.

PER CURIAM.

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

All the judges concur; Woodson, J., in separate opinion.

CONCURRING OPINION.

WOODSON, J.

— I concur in paragraph one of the opinion filed herein, by our learned Commissioner Bond ; but Udissent as to the second paragraph thereof, for the reason that the lease fixing the amount of the rental to be paid for holding possession of the premises after the expiration of the lease, is exactly the same as that prescribed by See. 4106', R. S. 1899, now See. 7879, R. S. 1909, and is not therefore prohibited by public policy, as is generally the case where stipulated damages are agreed to for the breach of an ordinary contract.

Such a contract being in harmony with both the letter and spirit of the law, I am unable to see how it can violate the law of contracts', or the spirit of public policy, which is expressed through the legislative department of the government.


source: Caselaw Access Project

author: BROWN, C. PER CURIAM.

license: Public Domain

text:
    MARY E. HOLT, Appellant, v. O. T. HANLEY.
    Division One,
    July 11, 1912.
    *1. APPEAL: Motion for New Trial: No Exception to Overruling: Matters for Review. Where no exception is taken to the action of the trial court in overruling a motion for a new trial, the examination of errors upon appeal must be confined to such as appear upon the record proper.
    2. PLEADING: Confession and Avoidance: Dower. A plea in an answer to a suit for admeasurement of dower in real estate, which denies every allegation not specifically admitted, and then proceeds to defend upon the ground that the land was sold under a judgment rendered on a creditor’s bill, and payment made out of the fund so produced of the purchase price,, during the life-time of the debtor, thus barring the widow’s dower,will be treated as a plea in confession and avoidance which admits the marriage of the plaintiff and the death of her husband.
    3. DOWER: Definition. Dower is not the result of contract but a positive institution of the State, founded on reasons of policy.
    4. -: Land Sold under Judgment on Creditor’s Bill: Vendor Preferred. Section 345, R. S. 1909, gives a widow dower m all lands of which her husband was seized of an estate of inheritance at any time during the marriage. Section 358 provides that no judgment or decree confessed by or recorded against the husband shall prejudice her right and interest. Where, therefore, the land was sold under 'judgment on a creditor’s bill against him to which the wife was not a party, the right of dower is not divested, though a creditor who had a right to a vendor’s lien was made a defendant and was preferred by the judgment.

      Appeal from Audrain Circuit Court. — Now. James D. Barnett, Judge.
    Reversed and remanded.

      Fry & Rodgers for appellant.
    (1) • When dower once attaches the husband cannot by any act or omission defeat it. Davis v. G-reen, 102 Mo. 180; R. S. 1909, See. 358. (2) The widow is entitled to dower subject to a vendor’s lien. The land was not sold under or to enforce the vendor’s lien. It was sold under the execution on the judgment against Holt on the accounts, and on the order of the court “so as to vest perfect title in the purchaser,” the amount of the vendor’s lien was ordered paid first out of the proceeds of the sale. Where the vendee of land has taken possession and paid part of purchase money, although no deed has passed, he has such interest as will make his vendor stand seized to his use; and after his death and sale by his administrator, his widow will have dower in the land, subject perhaps, to contribution of her proportion of amount paid by the administrator in satisfaction of vendor’s lien. Hart v. Logan, 49 Mo. 47; Duke v., Brandt, 51 Mo. 221; Jones v. Bragg, 33 Mo. 337; Atkinson v. Stewart, 46 Mo. 510; Atkinson v. Angert, 46 Mo. 515; Thomas v. Hesse, 34 Mo. 13; Sweanev v. Mallory, 62 Mo. 485; Casteil v. Potter, 176 Mo. 76; Chrisman v. Linderman, 202 Mo. 605.

      Robertson é Robertson for respondent.
    (1) The appellant having failed to save an exception to the overruling of her motion for a new trial is precluded from an examination of any question except such as may appear upon the face of the record proper. Casler v. Chase,160 Mo. 418; Hoffman v. Trust Co., 150 Mo. 520; Sicher v. Ramboseck, 193 Mo. 113; Wilbrandt v. Light Co., 135 Mo. App. 220; Serrano v. Railroad, 131 S. W. 371. The appellant makes no point on the record proper and her whole complaint is directed against snch matters as are preserved within the bill of exceptions and having saved no exception to the overruling of the motion for new trial, the judgment should be affirmed. (2) The purchase price of the land not having been paid by plaintiff’s husband to C. B. Rodes and there having been a judgment of foreclosure under the vendor’s lien for the purchase price, the plaintiff can have no dower in the lands. Jones v. Bragg, 33 Mo. 337; Hart v. Logan, 49 Mo. 47; Duke v. Brandt, 51 Mo. 221; 14 Cyc. 948, 949, 917 (3); Fountaine v. Bank, 57 Mo. 552; 10' Am. & Eng. Ency. Law (2 Ed.), 137, 140; Bennett v. Shipley, 82 Mo. 448.
   BROWN, C.

— This action was instituted to the September term, 1907, of the Audrain Circuit Court, for the admeasurement of dower in the east half of the northeast quarter, and the east half of the west half of the northeast quarter, of section four, in township fifty-two of range ten in said county.

The petition states, in substance, that the plaintiff was lawfully married to S. W. Holt on the twentieth day of August, 1865; and lived with him as his wife until his death, which occurred April 28, 1907. That he died seized of an estate of inheritance in said real estate, and that she thereby became lawfully entitled to the possession of an undivided one-third part thereof as her reasonable dower therein. That defendant afterward entered into the premises and wrongfully deforced her thereof, and unlawfully withholds the same from her, after demand therefor, to her damage in the sum of $500. That the monthly value of the rents and profits of her dower is fifty dollars. She asks for the admeasurement of her dower and for damages as aforesaid and for general relief.

The answer so far as applicable to the issues in this case is as follows:

“Now comes the defendant and for his answer to plaintiff’s petition, denies each and every allegation thereof, not hereinafter specifically admitted to be true.
“Defendant further answering, admits that he is the owner of and in possession of the said lands described in plaintiff’s petition, and says that on the 5th day of March, 1879, one Charles B. Rodes, conveyed said lands to S. W. Holt, but defendant says that the said S. W. Holt never took possession of said lands nor was he entitled to the possession thereof.
“That said lands at thát date were of the value of about seven .dollars per acre and there were included in said conveyance not only the said lands described in petition but a total acreage amounting to two hundred and seventy acres.
“That on said date said S. W. Holt was in possession of and in the control of certain moneys, means and merchandise belonging to various and different parties and that at the date of said sale there was a deed of trust upon said lands for the sum of one thousand dollars and some interest which the said S. W. Holt assumed and agreed to pay as part of the purchase price thereof and this said balance of one thousand dollars remained as a-vendor’s lien against said lands in favor of the said O. B. Rodes, and the said S. W. Holt took the said property, means, merchandise and money which belonged to the parties aforesaid, and against their rights and invested the same in said lands without their knowledge or consent, and he then and thereby became a trustee for the owners of said merchandise, means and money, and held said lands for the use- and benefit of said various parties.
“That all of said parties in the Moberly Court of Common Pleas, a court of general jurisdiction of the State of Missouri, obtained judgments against tbe said S. W. Holt for tbe unlawful conversion of said merchandise, means and money, and said judgments were as follows:
“One in favor of Yogel & Kobn for ... .$396.69'
One in favor of Somers & Lynd for..... 309.11
One in favor of E. J. Sears for........ 193.56
One in favor of A. A. Mellier for....... 210.03
One in favor of S. Kinsbaker & Bro. for 295.25
One in favor of Malin, Fowler & Co. for 253.83
One in favor of Brown & Moore, for .... 169.00
“And after said different claims bad been reduced to judgments in favor of said various parties in said court of common pleas, in 1879, tbe said parties filed tbeir suit in tbe circuit court of Audrain county to compel tbe payment of tbeir said several judgments and have tbe same declared to be a lien against tbe lands described in plaintiff’s petition and all of tbe said lands amounting to two hundred and seventy acres, and at tbe June term, 1880, in an action between all of said parties and C. B. Eodes and tbe said S. W. Holt, tbe said circuit court, being a court of general jurisdiction and having jurisdiction over tbe subject-matter and all of tbe parties thereto, did render a judgment ordering and decreeing that all of said lands be sold and did find that there was a balance due tbe said C. B. Eodes from tbe said Holt on the purchase price of said lands amounting in all to tbe sum of one thousand and twenty-seven and 30.100', and further decreeing that said • judgment in favor said C. B. Eodes and against said Holt for said purchase price should bear interest at tbe rate of eight per cent per annum and did further find and determine that in said judgment tbe said Eodes bad a prior lien on said lands until said amount was paid, and did further determine that said lands should be sold for tbe purchase price thereof in favor of said Eodes and that tbe balance of tbe proceeds arising from tlie sale of said lands after the purchase price and the expenses of said action was paid, should be applied upon their respective judgments in favor of the parties aforesaid in accordance with the respective amounts of their said judgments.
“That the court further entered an order and judgment finding in favor of said S. W. Holt that he was entitled to $300 of exemptions out of said lands and that said $300 be paid over to' the said S. W. Holt and that the same be a prior judgment to all of the judgments aforesaid in favor of said parties, and did further order and decree that all of said lands be sold.
“Defendant further answering, says that said lgnds were sold under said decree at the October term' of the said Audrain Circuit Court in 1880 and that the total cost of said sale amounted to $108.25', and that all of said land sold for the sum of nineteen hundred dollars, being the fair cash market value of said lands at said date, and the proceeds of said sale were first devoted to the payment of said costs, and second, to the payment of said judgment for said vendor’s lien, and third, to the payment of said judgment for exemptions in favor of said S. W. Holt, and fourth, the remainder was distributed pro rata among the said several creditors aforesaid.”

The plaintiff replied by .general denial, and the cause went to trial. A jury was waived, and the court, after hearing the evidence, found the issues for defendant and entered judgment accordingly, from, which this appeal was taken.

The plaintiff in due time filed her motion for a new trial which was overruled by the court. No exception was taken by her to this ruling. She filed in due time her bill of exceptions, setting out the evidence and other proceedings at the trial.

No exception was taken by the plaintiff to the action of the court in overruling the motion for a new trial. No rule of practice is more firmly established in this State than that all matters of exception must be presented for re-examination in the motion for a new trial, and exception taken, and preserved in a bill of exceptions, to the final action of the court thereon, to authorize their examination upon appeal or writ of error. Our examination of the errors complained of in this case must therefore be confined to such as appear upon the record proper. [Sicher v. Rambousek, 193 Mo. 113, 128, and cases cited.]

The petition contains all the averments necessary in a suit for the assignment of dower in the lands described in it, including the statement that the plaintiff was married to S. W. Holt in- 1865', and continued to live with him as his wife until his death, which occurred April 28, 1907, and that during that time the husband was seized of an absolute estate of inheritance in the land. The question for our consideration is, whether the answer states a defense to that cause of action.

It begins with the statement that “the defendant for his answer to plaintiff’s petition, denies each and every - allegation thereof, not hereinafter specifically admitted to be true.” It then proceeds to state, in substance, that on the 5th day of March, 1879, Holt, by conveyance from one Charles B. Rodes, became seized in fee of the lands in controversy, which were then incumbered by a deed of trust to secure the payment of $1000, which Holt assumed and agreed to pay as part of the purchase price; that afterwards seven individuals and firms named in the answer'recovered several judgments in the Moberly Court of Common- Pleas against Holt for sums aggregating $1824.47, and that thereafter, in 1880, these several parties joined in a suit in the Audrain Circuit Court to compel the payment of their several judgments and to have the same declared liens against the lands of Holt; that both Holt and Rodes were impleaded as defendants in the said suit, which resulted in a- judgment that all the lands be sold; that there was a balance due Rodes from Holt on the purchase price of the lands amounting to $1027.30' with interest at eight per cent per annum, for which he had a lien prior to the lien of the judgments; that $300 be next paid to Holt by way of exemption, and that the remainder be distributed among the complaining judgment creditors. That the lands, being the same 270 acres conveyed by Rodes to Holt, were sold under this judgment for $1900, their fair cash market value, and the proceeds, after the payment of costs amounting to $108.25, were distributed according to the terms of the judgment; that since the sale, valuable and lasting improvements have been placed upon the land by which it has been greatly enhanced in value, and that “on account of the facts aforesaid, the said' plaintiff has not and cannot have any dower interest in and to said lands.”

We think that this answer necessarily admits the marriage of plaintiff and death of her husband, as stated in the petition, by affirmatively placing the defense squarely upon the new matter pleaded in avoidance. The effect of this same kind of pleading was subjected to the consideration of this court in State v. Delmar Jockey Club, 200 Mo. 34, 60. In that case the information charged that the respondent had failed to exercise certain franchises which it had assumed by its act of incorporation to do. The answer, so far as it serves to illustrate the point in question, is as follows (p. 60):

“Respondent, Delmar Jockey Club, comes by its attorneys, and for its answer to the information of the Attorney-General herein, admits that it is a corporation duly organized and incorporated under the laws of the State of Missouri and denies each and every other allegation in said information alleged or contained.
“Wherefore respondent prays that it be hence discharged with its costs.
“2. For its further answer to that portion of the information of the Attorney-General herein, wherein it is alleged that respondent has failed to exercise certain franchises, claimed to be possessed by it, this respondent states that it has fully carried out and exercised all those provisions in its charter authorizing it to give exhibitions of agricultural products and exhibitions of contests of speed and races between horses for the purpose of encouraging and promoting agriculture and the improvement of stock, and has provided suitable fair grounds for the same, in this” and proceeds to state certain acts which it claims to be a full performance of all such provisions of its charter. It then again denied each and every charge, allegation or assertion of a contrary purpose contained in the information. This court, in its opinion by Graves, J., held (p. 63) that although the general denial, without further pleading, put in issue all the charges in the information, the plea following it amounted to a confession and avoidance. So the plea in this case, stating, as it does, that the plaintiff has no dower on account of the facts pleaded, is simply a statement in another, although no less definite form, that she would have her dower were it not for the existence of such facts. It amounts to a confession and avoidance, and will be so treated. The defendant seems to take the same view, for, in his brief (p. 6) he says: “In this case the plaintiff was living with her husband at the time he acquired the title to the land and at the time it was sold under the judgment of foreclosure and he did not die until April 23, 1907, twenty-seven years after his title had been, extinguished in the land. ’ ’ Its effect is to present the question whether or not the sale of the lands under a judgment rendered upon a creditor’s bill, and payment, out of the fund so produced, of a debt for the purchase price, during the lifetime of the debtor, bars the dower of the widow.

“Dower is not the result of contract, but a positive institution of the State, founded on reasons of policy.” [1 Washburn on Real Property (6 Ed.), Sec. 356.] The policy of this State in that respect has been clearly expressed by the Legislature, so that we must go to the statutes as the primary source of information, and from them we are immediately impressed by the care with which, the interests of the widow have been recognized and protected. New estates, both legal and equitable, have been subjected to this beneficent burden, and new safeguards have been prescribed to prevent its dissipation by the fault or improvidence of the husband. These provisions, so far as they relate to the questions in this case, have endured so long that it will be sufficient to refer to them by citation from the present revision.

Sec. 345, R. S. 1909, provides that “every widow shall be endowed of a third part of all the lands whereof her husband, or any person to his use, was seized of an estate of inheritance, at any time during the marriage, to which she shall not have relinquished her right of dower, in the manner prescribed by law, to hold and enjoy during her natural life.” Our first glance at this sentence impresses us with its sweeping innovation upon the doctrines of the common law, which leaves dower in equitable estates at the mercy of the husband during his life, while this statute couples them so inseparably with legal estates of inheritance that every expression designed for the protection and security of one, applies equally to the other. The provisions of Sec. 358, that “no judgment or decree confessed by or recovered against him, and no laches, default, covin or crime of the hysband shall prejudice the right and interest of the wife,” applies equally to all estates and interests in which dower is recognized or created by the statute.

Under the common law there were certain collusive'suits, called “levying a fine,” and “suffering” a common recovery, by which the dower or the interest of the wife might be barred by a fictitious judicial record. For instance, “the Statute of 18 Edw. I. De Modo Levandi Fines, enacted that if a feme covert should be one of the parties to a fine, then she must first be examined by certain justices, and if she did not assent to the fine it should not be levied. Yet this was always understood to mean that the fine ought not to be received without her examination and free consent, but that if it was received and recorded, neither she nor her heirs could be permitted to aver that she was not examined and did not consent.” [Hits v. Jenks, 123 U. S. 297.] At the time of the enactment of our statute, the levying of a fine had been superseded by deed, which must be both signed and acknowledged by the wife, but the Legislature certainly believed that there were other proceedings in which a collusive judgment might be obtained and used for the same purpose, and guarded against such an abuse by the sweeping provision last quoted. It provides that no judgment against him shall prejudice her right and. interest. This being so, it is evident that no sale founded upon such a judgment can deprive her of that right. [Grady v. McCorkle, 57 Mo. 172; Williams v. Courtney, 77 Mo. 587.]

In Davis v. Green, 102 Mo. 170, 181, Ray, C. J., speaking for this court about the effect of this statute upon a state of facts strongly resembling, in principle, those involved in this case, citing Grady v. McCorkle, supra, said: “The further claim in defendant’s behalf is,'that the equity of Williams, the judgment purchaser, is equal, in. point of time, to that of Davis, the partition purchaser; yet it does not follow that it is equal to the widow’s dower in the favor and protection of the statute. ... In this connection, we may here add that it is not true, as stated in the argument of defendant’s counsel, that the widow’s title is no better than an heir’s. The law nowhere awards to the heir’s title the same measure of protection that is accorded to the wife’s right, in the section of the statute last quoted, against the husband’s acts and those of judgment creditors. While, in a certain sense, she takes under the husband, in a larger sense she holds under the statute that exempts her rights from the prejudicial acts of the husband and the judicial proceedings of creditors and others. In this case, whether the wife is to be regarded as endowable by reason of the equitable or legal seizin of her husband, in either event, she is equally within the protection and exemption accorded her by the sections of the dower act above set out.”

The italics in the foregoing quotation are those of the learned judge who wrote the opinion, and illustrate that he had in his mind that the provision of the statute that “no judgment or decree confessed by or recovered against” the husband shall prejudice the right and interest of the wife was not directed to the voluntary act of confession of the husband alone, but took hold of the judgment creditor ‘ himself, forbidding that any judicial proceeding instituted by him against the husband alone should prejudice her right. The statute is unequivocal, and our duty is confined to the judicial exposition and enforcement of the express will of the Legislature. The application of the rule we have stated to the circumstances of this case is peculiarly free from complication and difficulty. Of all those interests in lands which are denominated liens, that of the vendor for his purchase money is perhaps the most limited and uncertain, so that its existence, in'one sense, may be said to depend upon the contingency of the election of the vendor to enforce it. Although it may be enforced as against the inchoate right of dower of the wife of the vendee or the dower consummate of his widow, it is destroyed by the conveyance of the land by the husband alone to a purchaser without notice of its existence. As to- its standing against creditors Chief Justice Marshall, in Bayley v. Greenleaf, 7 Wheat. 46, says: “It would seem inconsistent with the principles of equity, and with the general spirit of our laws, that such a lien should be set up in a court of chancery, to the exclusion- of tona fide creditors. The court' would require cases in which this principle is expressly decided, before its correctness can be admitted. ’ ’ The lien ex-' ists only by implication, and is not' a vested interest in the property. [Phillips v. Schall, 21 Mo. App. 38, 44; Orrick v. Durham, 79 Mo. 174.] Where it can be gathered, from all facts and circumstances surrounding the sale, that the vendor did not intend to retain his lien, it will be as effectually destroyed as if he had taken independent collateral security; and the taking of a mortgage for a portion of the purchase money indicates a waiver of the. lien as to the residue. (Orrick v. Durham, supra). In the same case' it was held, on the strength of authorities cited, that the express contract that the lien shall be retained to a specified extent is equivalent to a waiver of that lien to any greater extent. “It is a right which has no existence until it is established by the decree of a court in the particular case.” (Dickason v. Fisher, 137 Mo. 342, 352); and if he cause the land to be sold under a judgment for any portion of the purchase price, he thereby waives his lien as to the whole. The very existence of this lien, depending as it does upon the decree of the court, which enforces the- rights peculiar to it, can be perfected and preserved in no other way. The result cannot be reached by any collateral proceeding. [2 Washburn on Real Property (6'Ed.), Sec. 1030.] To use the words of an eminent author upon the question at issue here, “It is necessary, also, in order to divest dower, that the proceedings of the vendor be expressly founded upon his equitable lien, and for the enforcement thereof.” [1 Scribner on Dower (2 Ed.), p. 558.] It necessarily follows this proposition that where the lands are sold in any other proceeding or for any other purpose the widow may claim her dower as of an unincumbered estate. The court in McArthur v. Porter, 1 Ohio, 99, in considering this question say: “George Porter, the deceased, acquired, by his patent, an estate of inheritance in the lands in question. The defendant, Sarah, by.'her marriage with George Porter, acquired the right of being endowed in these lands, if she survived her husband. Upon his death, this right invested her with a complete, perfect, legal estate. If an equitable lien existed upon the lands for purchase money, it belonged to Talliaferro, and no one else. As to all the world beside, her right was clear and unquestionable at law.”

In this case the burden was upon the defendant to plead such facts as would affirmatively show that the right of dower existing in the plaintiff by virtue of her husband’s seizin of an estate of inheritance in the lands in question during the marriage had been extinguished. This could be done only by pleading that Rodes, the vendor to Holt, in a proceeding instituted by him for that purpose had enforced a vendor’s lien and secured a sale and conveyance of the property thereunder. So far from having pleaded such a state of facts, the averments are that others brought suit for the purpose of marshaling the property of Holt for the payment of their own judgment liens; that to this suit they made Rodes a party; that final judgment was rendered by which Rodes was given a preferred claim upon the proceeds of the sale under the judgment; that Holt himself was next allowed a portion of the proceeds, and that the remainder was divided between the plaintiffs in the suit. There is no hint in the answer that Rodes asked for any affirmative relief, whatever, or that he pleaded in any way in the action, nor is there any statement that Mrs. Holt was a party. Had Rodes been a mortgagee, holding for his security the legal title instead of an intangible right to ask a court of equity to' declare a lien in his favor, the allowance of his debt and its payment as a preferential claim from the proceeds of the mortgaged land, during the lifetime of the husband, would not have prejudiced the wife’s right of dower, even though she had joined in the mortgage. [Atkinson v. Stewart, 46 Mo. 510, 514; Atkinson v. Angert, 46 Mo. 515; Jones v. Bragg, 33 Mo. 337, 339.]

We think that this answer fails to state a defense to the cause of action stated in the petition because, (1) the judgment in the case of Vogel et al. v. Holt et al. having been rendered in a proceeding in which this plaintiff was not a party did not and could not under the circumstances prejudice her right, as the wife of Holt, to dower in the land in question; (2) the proceeding, the judgment in which is pleaded as a bar'to her dower not having been instituted or prosecuted by Rodes for the purpose of enforcing his lien, cannot now be used by others for that purpose.'

Although we are not at liberty to use the evidence preserved in the bill of exceptions for the purpose of predicating error in the action of the court in overruling the motion for a new trial, it is before us for any legitimate purpose. We have, for the purpose of satisfying ourselves as to whether any injustice has resulted from a failure on the part of the defendant to plead facts available to him as a defense, carefully read the record in Vogel v. Holt et al., and find that it is used in this answer for at least all it contains, so that no injustice has resulted from its action. Respondent also states in his brief that in the deed from Rodes to Holt, a vendor’s lien was expressly reserved for $419.30. This assists ns materially in characterizing the proceeding under which the land was sold.

The answer in this case states that the vendor’s lien relied on grows out of the failure of "the vendee to pay a first mortgage of $1000, which he assumed with the purchase. In the view we have taken of the case it has been unnecessary to investigate the question whether such a lien can rest upon the failure to discharge a debt secured by mortgage upon the same land, so that we do not wish to be understood as deciding that question.

For the reasons stated the judgment of the Au-drain Circuit Court is reversed, and cause remanded for further proceedings in accordance with this opinion.

Blair, G., concurs.

PER CURIAM.

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

All the judges concur; Woodson, J-., in result only.


author: BROWN, P. J.

text:
    C. H. ALBERS COMMISSION COMPANY, Appellant, v. MARY E. SPENCER et al.
    Division Two,
    October 9, 1912.
    1. RES ADJUDICATA: Hearing on Merits After Demurrer Sustained: No Amendment of. Petition. Where it has been held on appeal that no cause for equitable relief against-the defendants had been made by the plaintiff, either by the petition or evidence, and plaintiff’s petition is not thereafter amended in the trial court in any material matter, a demurrer to the petition on the ground that it does not sustain a cause of action should be sustained. A plaintiff is not entitled to a hearing on the alleged merits of his case when his petition contains no merits — no right to relief.
    2. -: -: -: Injunction: Motion to Dissolve Instead of Demur. The sufficiency of the petition may be assailed by a motion to dissolve the temporary injunction in the same manner as by a general demurrer; and when that motion has been sustained on the ground that the petition stated no ground for equitable relief, plaintiff is not, without an amendment of his petition in material matters, entitled to a further hearing.
    Appeal from St. Louis City Circuit Court. — Hon. Robert M. Foster. Judge.
    Affirmed.

      Barclay, Fauntleroy & Cullen for appellant.
    (1) According to the petition, the deliveries of grain under the contracts were to he in St. Lduis and also in East St. Louis (“in regular elevators,” some of which then were and now are in Illinois), so that the places for performance thereof made the grain transactions in suit interstate commerce. Montague v. Lowry, 193 U. S. 38; Hall v. Cordell, 142 U.'S, 116. (2) A “corner” is a combination or conspiracy to secure such control of the immediate supply of any product, as to enable those operating the corner to arbitrarily advance or control the price of the product. Eddy, Combinations (1 Ed.), Sec. 72. Parties who unite or combine to form or to participate in executing a £ £ corner ’ ’ are within the Federal law, and should not he allowed to carry out the purposes forbidden. Railroad v. Terre Haute Co., 145 H. S. 407; Foss v. Cummings, 149 111. 359; Gibbs v. McNeely, 118 Fed. 120; Craft v. McConoughy, 79 111. 346; Nester v. Brewing Co., 161 Pa. St. 473. The second section of the Sherman Act is aimed directly at combinations and conspiracies to monopolize any part or feature of interstate commerce, such conspiracies as’ are here in question. Monarch Works v. Tob. Co., 165 Fed. 774; Loewe v. Lawler, 208 U. S. 293; Paper Co. v. Yoight Co., 212 U. S. 227. (3) By dismissing the cause without any hearing upon the issues raised by» the petition, answers and reply, the trial court denied to plaintiff its rights asserted under the laws of the United States, by the petition and in the motion to set aside the dismissal and hence erred in deciding a question of Federal law. See Federal decisions above. (4) The petition states a case which would forbid Spencer & Milliken enforcing the contracts because of their violation of the Pools and Trusts Act of Missouri, and because of their unlawful combination, irrespective of the actual prices (real or fictitious) of the grain. Hence the Exchange rales would have no bearing, if the “corner” he proved as alleged and they have no hearing as a defense except on the theory set up as affirmative matter in the answers which remains to he proved hy defendants. R. S. 1909, Secs. 10298, 10301-4. Those issues, in any event, could only he determined on a hearing, which the trial court denied by a summary dismissal. Aull v. Day, 133 Mo. 337; Harrison v. Rush, 15 Mo. 175; Jackson v. Emmons, 17.6 U. S. 532. (5) Whatever effect may properly he ascribéd to the appeal from the interlocutory order dissolving the temporary injunction, the Supreme Court had no jurisdiction, on that appeal, to decide the merits of the case on the issues in the pleadings in advance of a trial, and it did not purport to prejudge those issues hy ordering a dismissal; so the trial court erred in that order made without a hearing of any sort after the interlocutory trial. Lively v. Hunter, 52 S. E. 544; Alston v. Limehouse, 60 S. C. 559. (6) The decision of the appeal on the interlocutory order dissolving the. temporary injunction did not warrant the trial court in dismissing the cause without a hearing of the issues raised hy the pleadings on file, and without opportunity, given to the plaintiff to present new or additional evidence in support of the averments of the petition. The opinion on the first appeal could not properly he applied if new and Tuore cogent testimony for plaintiff on the issues joined should be presented, including more recent solemn judicial admissions hy defendants of all the material facts, which admissions and all other evidence plaintiff was hy the dismissal precluded from submitting. Rogers v. Pitt, 129 Fed. 936; Alston v. Limehouse, 39 S. E. 188; Jackson v. Emmons, 176 U. S. .532; Aull v. Day, 133 Mo. 337. The. interlocutory order denying the temporary injunction was not a final, determination of the suit, and was not so adjudged when that order was affirmed. Harrison v. Rush, 15 Mo. 175; Brown v. Association, 59 N. Y. 242; Paul v. Munger, 47 N. Y. 469; Beaudry v. Felch, 47 Cal. 186; Sanitary Works v. Reduction Co., 94 Fed. 696. Only statutory permission and authority now allow an appeal from an interlocutory order dissolving a preliminary injunction, which prior thereto was denied because not a final judgment. R. S. 1899, Sec. 806; Sec. 2038, R. S. 1909; Tanner v. Irwin, 1 Mo. 65; Johnson v. Board, 65 Mo. 47; Witthaus v. Bank, 18 Mo. App. 183.

      Judson & Green for respondents.
    (1) It clearly appears from the. decision in 205 Mo. 105, between the same parties, that the original petition in this cause stated no cause of action, and that the evidence did not prove one, and that there was nothing in this case but the injunction. The injunction was the life of the bill, and in the determination of the motion to dissolve the injunction, the merits of the cause were necessarily determined. The circuit court erred, therefore, in not dismissing the bill when the injunction was dissolved, and it was clearly right in dismissing the bill after the judgment of the Supreme Court in 205 Mo. 105. Davis v, Wade, 58 Mo. App. 646; Gibson v. Powell, 96 Mo. App. 68; Ilammerslaugh v. Building Assn., 79 Mo. 80; Brownlee v. Fenwick. 103 Mo. 420; Buford v. Packet Co., 3 Mo. App. 159: 69 Mo. 611; State ex rel. v. Hager, 92 Mo. 511; Davis v. Railroad, 102 Md. 371; Hall v. Horne, 42 So. (Fla.) 383; Goddard v. Railroad, 202 111. 362; Reed v. Camp* bell, 43 N. J. Eq. 406; Withers v. Denmead, 22 Md. 135; Field v. West Springs, 180 111. 190; Goodrich v. Moore, 2 Minn. 61; Alfred v. Moore, 15 W. Ya. 597; Pryor v. Emmerson, 22 Tex. 162; Wade v. Loudon, 30 La. Ann. 660; Merriman v. Merman, 9 Heisk. (Tenn.) 269; Gulich v. Fisher, 92 Md. 353. (2) The distinction made in all these cases between bills in equity or petitions wherein the injunction is the life of the bill and wherein the determination of the right to injunction necessarily determines the merits of the case, and Other cases where the injunction is merely auxiliary to other relief, is controlling in this case; and this distinction makes inapplicable all of the contentions and authorities cited by counsel for appellant in their brief. (3) As the injunction was the life of the bill; that is, the relief sought being the enjoining of the enforcement of the contracts On the ground of their alleged illegality, the determination of the validity of the contracts was necessarily decisive at once of the injunction and of the whole merits of the case. After the decision of the circuit court, affirmed in 205 Mo. 105, that the contracts were valid and enforcible, there was nothing left in the case. If these contracts are valid, as Judge Valliant held in his opinion, then they ought not to be cancelled. (4) Appellant’s contention that, after a full hearing upon the merits on the motion to dissolve the injunction, affirmed by the Supreme Court on its own appeal on the ground that there is no equity in its bill and that the contracts which it is sought to enjoin are valid and enforcible, he is nevertheless entitled to another hearing upon this same cause of action, is not only violative of precedent, but is in. conflict with the fundamental principles of jurisprudence that there should be an end of litigation, and that no man should be twice annoyed for one and the same cause. United States v. Throckmorton, 98 U. S. 61; Broom’s Legal Maxims, Secs. 321 and 325; Skeen, v. Springfield Co., 42 Mo. App. 158; State v. Benedict, 51 Mo. App. 642; Halpin v. Warner, 57 Mo. App. 59; Gibson v. Powell, 96 Mo. App. 681.
   BROWN, P. J.

— This is an action demanding equitable relief against certain grain contracts entered into between plaintiff and defendants as members of the Merchants’ Exchange of St. Louis.

In the year 1903, the plaintiff instituted five suits in the circuit court of St. Louis City against the Merchants’ Exchange and sundry members thereof, alleging certain wrongful conduct on the part of defendants which resulted in so monopolizing or “bulling” the wheat market that plaintiff was unable to purchase enough wheat to fill large contracts theretofore made by it for future delivery, whereby it was about to lose large sums of money which it had put up in the National Bank of Commerce (a defendant herein) as margins to guarantee the fulfillment of its said contracts of sale.

In its petitions, plaintiff prayed the cancellation of the contracts of sale made by it; that the money which it had put up in the bank -as margins' be returned, and that defendants and the officers of the Merchants’ Exchange be enjoined from in any manner enforcing said contracts for sale of wheat entered into by plaintiff and from applying the margins put up by plaintiff toward liquidating said contracts.

The five suits 'were, by an order of the circuit court, consolidated and a temporary injunction, issued, as prayed. Upon a motion to dissolve the temporary injunction, the trial court heard the parties, taking some 700 pages of testimony touching all the allegations of the petition, answer and motion to dissolve; and made an order dissolving the temporary injunction.

From the order dissolving the temporary injunction plaintiff appealed to this court, where the order of the circuit court was in all things affirmed in an able opinion by Valliant, C. J., 205 Mo. 105, where a more complete statement of the case will be found.

"When the case was first here, the petitions of plaintiff and the evidence offered to support same were most carefully considered; and it was ruled that no cause for equitable relief had been made against the defendants, either by the petitions or evidence. ,

After the case was disposed of in this court, the defendants, on July 24, 1907, filed the following motion in the circuit court to dismiss the consolidated causes:

“Now come defendants and move the court to dismiss the above entitled causes for the reason that this court is without jurisdiction to determine the same and that there is no equity in the said petitions for consideration of a court of equity, and that it has been so adjudged by the Supreme Court of the State of Missouri in these causes in the appeal heretofore taken by plaintiff from the order of this court dissolving the temporary injunction herein, as will appear from the opinion of said court on file in this cause.
“Wherefore, defendants ask that said causes be dismissed.” This motion was by the circuit court sus-» tained and the plaintiff’s consolidated causes of action dismissed; whereupon the plaintiff, after a timely effort to secure a new trial below, again appeals to this' court.

After this court’s decision on the first appeal, the plaintiff’s petitions were not amended in any material manner, so that no new issue had been presented to the circuit court at the time of the dismissal.

The plaintiff earnestly insists that the issues in this cause involve many constitutional questions as well as the construction of many Federal statutes, and that it has never had an opportunity to present this case to the court on its merits.

If the motion to dissolve- had not involved the sufficiency of the petition but only the solvency of the defendants, or some similar iásue, there would be substance in the plaintiff’s contention; but the motion to dissolve filed by the National Bank of Commerce challenged the plaintiff’s petition in. the following categorical manner:

“Now comes the National Bank of Commerce in St. Louis, one of the defendants in the above entitled cause, and having filed its answer in said cause, now moves the court to dissolve the temporary injunction heretofore granted against it in said cause and for the following reasons, namely:
“First: Because plaintiff’s petition fails to state facts sufficient to entitle it to any relief at law or in equity.
“Second: Because the plaintiff’s petition fails to state facts sufficient to constitute a cause of action at law or in equity.
“Third: Because the facts stated in plaintiff’s petition are not true, as this defendant is informed and believes. ’ ’

The motions to dissolve filed by other defendants also charged that the petitions stated no facts entitling plaintiff to equitable relief.

The brief filed when this cause was first before us shows that the insufficiency of the plaintiff’s petition was one of the issues relied upon by defendants. On that appeal, we held: ‘ ‘ The plaintiff neither by its pleading nor its evidence has made out a case calling for the exercise of the jurisdiction of a court of equity.” [205 Mo. l. c. 120.]

As the only amendment to plaintiff’s petition after our first decision was by adding two new defendants as survivors of a defendant who had died since the trial in the circuit court, the issues have not been changed.

The query therefore arises, is á plaintiff whose petition states no cause of action entitled to more than one hearing? In other words, is a litigant entitled to a hearing on the alleged merits of his case when his petition contains no merits — no right to relief? We' think not.

It is true that where a petition states grounds which entitle plaintiff to relief at law or equity, the dissolution of a temporary injunction improvidently granted does not end the case. [State ex rel. v. Smith, 188 Mo. 167.]

Our statutes do not designate what shall be sufficient grounds for dissolving a temporary injunction; but it is undoubtedly a sound rule that when a petition states no sufficient grounds for relief, no injunction should issue; and if one has issued, it should be dissolved.' This rule is announced in 22 Cyc. 975, in the following language: “In eases where the injunction was improvidentlv granted because of the want of equity in the bill, it will be dissolved on motion either before or after answer. And it is immaterial that the answer does not deny the equities, or admits all the allegations of the bill, or is defective in form or substance.”

Plaintiff asserts that a petition in equity can only be dismissed upon a demurrer, and that as the filing of the answer waives the right to demur, this cause was improperly dismissed below on the defendants’ motion. Plaintiff relies on the cases of Brill v. Stiles, 35 Ill. 309, and Hickey v. Stone, 60 Ill. 461, to support its contention. However, under our Missouri code, which was intended to substitute substance for mere form in pleadings, we do not consider the cases cited as applicable.

Under our law, it is permissible to assail the sufficiency of the petition in a motion to dissolve a- temporary injunction in the same manner as by a general demurrer; and as the motions to dissolve herein-before noted contain all the elements of demurrers, the trial court and this court upon those motions, became vested with full power to adjudicate the sufficiency of the petition; and having determined that no cause of action is stated by the plaintiff, there no .longer exist any merits to try.

By our former decision, plaintiff’s petition became mere waste paper, and the circuit court properly ruled that the causes should be dismissed. [Johnson v. United Railways Company, 243 Mo. 278.]

There are quite too many litigants with meritorious causes who have never yet had a hearing and who are crying out to the courts for justice, to allow plaintiff more than one final hearing on the same proposition.

The judgment of the trial court dismissing plaintiff’s consolidated causes of action, is affirmed.

Ferriss and Kennish, JJ., concur.