text:
    NEW ERA MANUFACTURING COMPANY, Appellant, v. O’REILLY et al.
    Division Two,
    June 19, 1906.
    1. LANDLORD AND TENANT: Liability: Implied Obligation: Steam: Double Building. In the absence of contractual obligations, the landlord is liable to his tenant only for acts of misfeasance, not of nonfeasance. And guided by this rule it is held that it will not be implied that the lease contemplated that the landlord would furnish the lessee all the steam that might be necessary for the heating of one half of a large building or for running the dynamo and engine,, from the fact that the heating and power plant was located in the other half of the building not accessible to this lessee. On the contrary, the lessor having expressly agreed that in case the other half became vacant during the life of the lease he would pay any excess in the cost of operating the heating and power plant which might be caused thereby, he cannot be held except for a violation of that agreement.
    2. -: Capacity of Dynamo: Complaint: Reasonable Time. Unless the lessee complains within a reasonable time that the dynamo and engine which the landlord agreed to put in the building were not of the capacity called for by the contract, he will be held to have accepted those furnished as meeting the tests required. And his use of them for a year without complaint under a five-year lease was an acceptance, and a waiver.
    Appeal from St. Louis City Circuit Court. — Hon. Robert M. Foster, Judge.
    Affirmed.

      Lee Sale for appellant.
    (1) The court erred in holding that there was no obligation on the part of the landlord under the lease with reference to the furnishing of steam to plaintiff. Pollock on Contract' (7 Ed.), 245; 2 Page on Contracts, sec. 1118; Pordage v. Cole, 1 Saund. 319/t; French v. Bent, 43 N. H. 448; Booth v. Rolling Mill Co., 74 N. Y. 15. (2) The court erred in excluding the testimony offered by plaintiff tending to show that the dynamo and engine installed in plaintiff’s premises were not a 30 kilowatt 220-volt dynamo and engine.

      Kinealy & Kinealy and James P. Maginn for respondents.
    (1) There is no liability under the terms of this lease upon the lessor because of disagreements that arose between the lessee and Singer Bros, over the matter of appellant’s obtaining steam from the boilerplant in the building occupied by Singer Brothers or because of the failure of the latter to furnish such steam. Roberts v. Cottey, 100 Mo. App. 500; Morse v. Maddox, 17 Mo. 569. (2) The evidence offered by appellant and excluded by the court as to the capacity of the dynamo and engine was incompetent because appellant did not within a reasonable time after their installation complain to the lessor that the dynamo and engine were not of the character and capacity called for by the lease, and also because it was not shown that at the time that the alleged tests were made the dynamo and engine were in the same condition as they were when installed. Lamar Water & Electric Light Co. v. Lamar, 140 Mo. 145.
   GANTT, J.

This was an action commenced in the circuit court of the city of St. Louis for alleged breaches by the lessor in a certain lease made by the lessor, Dr. Thomas O’Reilly, to the plaintiff company on the 25th of October, 1899.

The petition alleged that on said date the said O ’Reilly leased to plaintiff the premises known as 905 and 907 Lucas avenue in the city of St. Louis, for a period of five years, commencing January 1, 1900; that the said premises were a part of a certain eight-story brick building and basement known as 901, 903, 905 and 907 Lucas avenue; that the said building and basement were divided off by partition walls so as to render them fit and suitable for occupancy by two distinct tenants, 901 and 903 by one tenant, and 905 and 907 by another, both of said tenements being adapted for use as manufacturing establishments; that the premises 901 and 903, at the time of the execution of the lease to plaintiff, contained a boiler plant adapted for the production of steam, which was to be used for furnishing heat, light and power for both tenants, and that there were pipes and other apparatus running from the premises 901 and 903 through and about the floors of premises 905 and 907, which were connected with the boiler plant, and receiving steam therefrom; that there is also in the premises 905 and 907 two elevators with the necessary machinery and apparatus for operating the same and also machinery and apparatus for heating the premises by means of steam generated by the said boiler plant. The petition then alleges that at the date of the lease Singer Bros, were in possession of 901 and 903 under a lease from said O’Reilly; that in the lease to plaintiff said O’Reilly agreed to put the boilers, engines, elevators and radiators and the machinery for operating the two elevators and for heating the building in good condition, and to wire the building for electric lighting, and to furnish in the premises 901 and 903 a 30 kilowatt 220-volt constant potential direct coupled dynamo and engine, and to deliver the premises to plaintiff on December 15, 1899.

It is further alleged that by said lease said O ’Reilly obligated plaintiff to pay to the lessee of the premises 901 and 903 monthly on demand one-half of the total cost of running and operating the boiler plant, including in such costs all outlays for salary, wages, coal, repairs and other expenses and that it was provided that such payment by plaintiff should be for the steam heat and power and the running of the said dynamo and engine, and also for live steam for plaintiff’s dryer and laundry machine, and in consideration of said monthly payment by plaintiff to lessee of 901 and 903 would furnish steam for all purposes aforesaid. It is then alleged that on December 15,1899, plaintiff took possession of the premises 905 and 907 with all repairs and alterations made except the installation of the dynamo and engine, which was provided for in the lease, plaintiff relying upon the agreement of O’Reilly to furnish the dynamo and engine later; that on February 22, 1900, O’Reilly installed the dynamo and engine, which plaintiff alleges was not capable of doing the work of a 30 kilowatt 220-volt dynamo and engine, but was of inferior capacity and insufficient for the uses for which said dynamo and engine are designed. The petition then proceeds to state the various items of damage to plaintiff hy the insufficiency of the dynamo and engine furnished by O’Reilly; that since the taking of possession by plaintiff of the premises on December 15, 1899, plaintiff had paid to Singer Bros., the tenants of the premises 901 and 903, half of the total cost of running and operating the said boiler plant and was continuing so to do as required by said lease; that on February 11th, 1902, Singer Bros, did decline and refuse to furnish steam to plaintiff for the running of said dynamo and engine unless plaintiff would agree to pay the entire cost of furnishing said steam and of running and caring for the said dynamo and engine, and that plaintiff thereupon notified the defendants of such refusal on the part of Singer Bros., but defendants have failed and refused to require Singer Bros, to furnish such steam; that the said O’Reilly died February 24,1901. Plaintiff then states that while the dynamo and engine were being operated in plaintiff’s premises between February 22,1900; and June 23, 1901, at which time it broke down, plaintiff was required to pay and did pay the entire cost of the services of a competent electrician whose services were required for the care of the dynamo and engine, and that Singer Bros, refused to furnish an electrician for that purpose, by reason of which failure plaintiff was compelled to expend $731.45.

The petition further alleges that since June 3,1901, plaintiff has been compelled to obtain all of the electric light and power required by it for use in its business from persons other than the Singer Bros., and to furnish steam for the dynamo and engine plaintiff will be compelled to purchase electric light and power during the unexpired term of the lease, all to the plaintiff’s damage in the sum of $5,650.30.

Inasmuch as the court sustained a demurrer to the evidence, it is deemed unnecessary to refer to the answer of the defendant and plaintiff’s reply thereto. The lease offered in evidence let to the plaintiff “the eight-story brick building and basement known as Nos. 905 and 907 Lucas avenue for a period of five years commencing January 1st, 1900, at a rental of $4,000 per year for the jobbing and manufacturing of shirts, cloaks, suits, etc.” For the purpose of this case the material provisions of the lease are as follows:

“Said lessor hereby covenants and agrees to put the boilers, engines, elevators and radiators, and all the machinery and apparatus in said building for the operation of the two elevators therein, and for the heating of said building, and all plumbing and sewer connection in good condition.
“The lessor further covenants and agrees to make the following alterations, additions and repairs in and to said premises, to-wit:
“1st. To furnish a 30 kilowatt 220-volt constant potential direct coupled dynamo and engine, for the exclusive use of said lessee.
“2nd. To wire the building for twenty multiple arc and 200 16-candle power incandescent lights, and to furnish 20 arc lamps of a pattern similar to those used by the Imperial Electric Light, Heat & Power Company, of this city, namely, a direct current enclosed multiple arc lamp; out-lets and are lamps to be located as designated by lessee.
“It is further agreed that should Singer Bros, vacate their present building, 901 and 903 Lucas avenue, during the period of this lease, said party of the second part shall get the preference of the leasing of the entire building. It is further agreed that said lessee shall get full possession of the leased premises, December 15, 1899, with all repairs and alterations completed, and that rents shall commence and be payable under this lease on January 1, 1900. It is further agreed that should premises 901 and 903 Lucas avenue be vacated prior to the expiration of this lease, the lessor shall pay any excess in the cost of operating the heating and power plant which may be caused thereby to this lease.
“Said lessee agrees to pay to the lessee of Nos. 901 and 903 Lucas avenue monthly on demand of such lessee one-half of the total costs of the running and operating the boiler plant on said premises, including in such costs all outlays whatever for salary, wages, coal, repairs and other expenses in payment to the said lessee for the steam, heat and power, furnished to it, also including power and the running of the said 30 kilowatt dynamo and engine, live steam for dryer and laundry machinery, and if the said sum of one-half shall not be paid by said lessee herein to the lessee of Nos. 901 and 903 Lucas avenue within five days after demand thereof, then said last-mentioned lessee shall not be bound to furnish steam to the lessee herein while such default or nonpayment continues.”

T. L. Itubenstein, president of the plaintiff company, testified that the plaintiff went into possession of the premises December 15, 1899; that the building is eight stories high and divided by walls all the way down to the basement; that in the basement there is a large opening with double fire-doors connecting premises 905 and 907 with premises 901 and 903, which latter premises were, in 1899 and up to the date of the trial,- occupied by the firm of Singer Brothers; that this double fire-door was the means of ingress and egress to the engineer in charge of both buildings; that one Clarence Collins was the engineer; that he was the engineer for Singer Brothers who was in charge of the boiler plant and who also looked after the elevator and heating apparatus of the plaintiff as well as of Singer Brothers, attending to matters of this kind for the tenants of both premises. This witness further stated that the double doors in the basement were closed and locked by the engineer when through with his work and that, while entrance from premises 901 and 903 to plaintiff’s premises conld be had, plaintiff had no means of ingress into premises 901 and 903 after the doors were locked, they being locked on the Singer Brothers side. This witness further testified that the entire boiler plant which furnished the steam that was used for heating as well as for power was located in premises 901 and 903, that in premises 905 and 907 the entire heating apparatus consisting of pipes and radiators which were intended to heat the premises were located, as were also two steam pipes used in hoisting elevators and that these were connected with pipes in premises 901 and 903 running to the boiler plant, and that the steam could be turned off or on only through Mr. Collins, the engineer, who was in the premises 901 and 903, for the reason that the boiler plant was located in the last-named premises. Witness further stated that when plaintiff went into the premises under the lease the premises were ready for occupancy as provided in the lease with the exception that the dynamo and engine which was for the purpose of generating electricity for lighting and for motor power in plaintiff’s premises, had not yet been installed; that this dynamo and engine were also operated by steam power furnished from the boiler plant in premises 901 and 903. Witness further stated that a dynamo and engine were installed in the premises in February, 1900, and that from December, 15, 1899, to the date of the installment of the dynamo and engine plaintiff obtained its light and power by means of an auxiliary connection from a company furnishing light and power.

Plaintiff offered to show by this witness that the landlord made plaintiff an allowance on account of electric light and power for the time when plaintiff was compelled to purchase such light and power from outside parties for the reason that the dynamo and engine had not been installed, but the court excluded this testimony.

The evidence further shows that about February 18, 1900, a dynamo and engine were installed in the premises 905 and 907 and that plaintiff used the same until June, 1901, at which time the engine broke down completely.

Plaintiff offered evidence tending to show that it paid to Singer Brothers each month one-half of the total cost of running and operating the boiler plant, as provided in the lease; also evidence tending to show that Singer Brothers refused to furnish plaintiff steam for running the dynamo and engine unless it would pay the entire expenses of running and caring for the dynamo and engine.

Plaintiff further offered to show the increased cost to plaintiff in consequence of Singer Brothers ’ refusal to furnish steam for the running of the dynamo and engine, but the court excluded all of these offers, on the ground that the lessor was not obligated under the lease to furnish power or steam to the plaintiff.

On the question as to whether the dynamo and engine installed by the lessor were a 30 kilowatt 220-volt dynamo and engine, the court excluded the testimony of H. H. Humphrey, a consulting electrical engineer, who examined the dynamo and engine on February 10th and 11th, 1902, as to whether or not the dynamo and engine were a 30 kilowatt 220-volt dynamo and engine, the witness testifying that on that date the dynamo and engine were both in good operative condition. The court also excluded the testimony of this witness as to the amount of electric energy the dynamo and engine were capable of producingonFebruarylOth and 11th, 1902. The court also excluded the testimony of this witness as to the test which he made of the machine on February 10th and 11th, 1902.

Clarence Collins on behalf of plaintiff testified that the dynamo and engine had no ampere meter on it at the time it was installed and that the dynamo and engine were in good condition at the start. This witness furnished steam for the dynamo and engine from February, 1900, to June, 1901.

Charles R. Martin, an electrician, testified that he was in the employ of plaintiff from the 10th of March to the 11th of August, 1900, that there was no meter on the dynamo and engine, that an ammeter is as essential to a dynamo as steam is to an engine, and that no correct ammeter was put on the dynamo during his employment by Singer Brothers and plaintiff, and that frequent complaint was made of this fact. He also stated that the dynamo and engine were in the same condition practically when he left the employment of the plaintiff and Singér Brothers, as when the dynamo and engine were first installed. That there was nothing about the condition of the dynamo at that time that would render it less effective or less able to produce electrical power, that he had always had more or less trouble with the engine from the start, but that there was no difference in respect to the engine at the time he quit from what it was at the time it was installed.

E. J. Hall, an electrician, testified that he was in the employ of plaintiff from September, 1900, until May, 1901, and that he took care of the dynamo and motor and lights. That when he first went into the employ of the plaintiff there was no ampere meter on the dynamo, but that one was put on it a short while after he went there. That he took readings of the meter and that he was able to state what those readings disclosed as to the electrical power or energy that the dynamo and engine were producing. Upon being asked to state what the readings disclosed, the court excluded the testimony, although the witness stated that there was nothing about the dynamo and engine that could operate to prevent its producing the normal electrical energy that the engine was capable of producing. The court excluded all the testimony of this witness as to how much electrical energy the dynamo and engine were capable of producing.

There was no evidence that the plaintiff ever at any time complained to Dr. O’Reilly or his executors that the engine and dynamo which were installed in the premises 905 and 907 were not of the size or character called for by the lease. This engine and dynamo were put into the building about February 20, 1900, and plaintiff’s electrician took charge of and managed them until May, 1901. There was no evidence as to how the dynamo and engine had been used or misused during the time that the electrician, Lamb, had charge of it, and Mr. Rubenstein testified that it broke down, entirely in June, 1901, and they stopped using it. At the conclusion of the plaintiff’s testimony, the court sustained a demurrer to the evidence and thereupon the plaintiff took a nonsuit and after an unsuccessful effort to have the same set aside this appeal was duly taken.

I. The controlling question upon this appeal is, did the lessor by his lease to plaintiff obligate himself to furnish to plaintiff, his lessee, steam for the building he leased plaintiff? “In the absence of contractual obligations the landlord as to his tenant is only liable for acts of misfeasance and not of nonfeasance.” [Vai v. Weld, 17 Mo. 232; Morse v. Maddox, 17 Mo. 569; Burnes v. Fuchs, 28 Mo. App. 279; Ward v. Fagin, 101 Mo. 669; Roberts v. Cottey, 100 Mo. App. 500.]

The plaintiff bases its contention that Dr. O'’Reilly, his landlord, is liable to it for the damages resulting to it from a refusal of Singer Brothers, the tenants of the adjoining building, to furnish it steam to run its dynamo and engine because when it leased the premises Nos. 905 and 907 Lucas avenue,the said building was so constructed and so fitted up by pipes connecting it with the heating plant in the basement of the adjoining building Nos. 901 and 903, also belonging to its lessor, that it was clearly contemplated that all steam that might be necessary for the heating of plaintiff’s premises or the running of its dynamo and engine should he furnished by the tenant or occupant of the adjoining building Nos. 901 and 903.

It is important to keep in view that the premises 901 and 903 were under lease and occupied by Singer Bros, when the lease to plaintiff was executed. It is conceded there is no express agreement by Dr. O ’Reilly in the lease to furnish steam to plaintiff, but plaintiff seeks to raise an implied agreement from the circumstances. In the light of the whole lease we can find no ground for such an implication. On the contrary, Dr. O ’Reilly limited his liability to plaintiff as to the supply of heat by express stipulation, to-wit, that in case his building Nos. 901 and 903 should become vacant during plaintiff’s lease, he would pay any excess in the cost of operating the heating and power plant which might be caused by the adjoining premises becoming vacant.

JThe agreement by plaintiff was to purchase steam from Singer Bros, at a fixed price but there was no corresponding obligation on plaintiff’s part to take steam from Singer Bros.

The provision that plaintiff should pay Singer Bros, one-half the cost of operating the boiler plant was evidently for the purpose of fixing a basis to determine Dr. O’Reilly’s liability if Nos. 901 and 903 should become vacant in which event only was he to pay plaintiff any excess in the cost of operating its. heating or power plant. This provision in the lease does not in the case of vacancy authorize plaintiff to take possession of the boiler plant in 901 and 903 and operate it, neither did it require the plaintiff’s lessor to do so. It merely provides that in such a contingency, the landlord would pay the excess of cost in operating plaintiff’s heating and power plant by reason of being compelled to obtain steam from outside parties, over what it had cost to get it from Singer Bros.

Singer Bros. were in no sense the agents of Dr. O ’Reilly, but were his tenants with fixed rights. They could furnish or refuse to furnish plaintiff steam without involving Dr. O’Reilly in any way and under its lease plaintiff could take or refuse to take steam from Singer Bros., without violating its lease.

We think the circuit court unquestionably was right in its construction of the lease and in holding that there was no implied covenant on the part of Dr. 0 ’Reilly to furnish plaintiff steam or compel his other tenant, over whom he had no control in this respect, to furnish plaintiff steam at a fixed price.

II. As to the contention that the circuit court erred in excluding evidence as to Dr. 0 ’Reilly making an allowance on the rent for the time covered by the lease before the dynamo and engine were installed, it is obvious no error was committed. The engine and dynamo were to be installed by January 1, 1900, but owing to the delay of the contractors therefor it was not placed in the building until February 20, 1900. The fact that Dr. O’Reilly made an allowance on the rent for this failure on his own part to comply with his agreement, could not possible shed any light on the question of his liability for the failure or refusal of Singer Bros, to furnish plaintiff steam. The proposed offer was utterly irrelevant to the issue.

III. The final contention is that the court erroneously excluded evidence offered by plaintiff to show that the dynamo and engine furnished by the lessor was not a 30 kilowatt 220-volt dynamo and engine.

As to this, the testimony disclosed that the dynamo and engine were to be installed before January 1,1900, but was not in fact put in until February, 1900. There was no evidence whatever that plaintiff ever made any complaint to its lessor that the dynamo and engine were not of the character and capacity called for in the lease.

We think it was the duty of the plaintiff within a reasonable time to notify Dr. O’Reilly of any failure in the dynamo and engine to meet the tests required by the lease. Plaintiff had used the engine and dynamo for a year before Dr. O’Reilly died and made no complaint of it. We think that the well-settled principles of law should be applied in this case. In the law of sales, where an article is furnished pursuant to a contract requiring it to be of a certain quality, the buyer must at least object to its quality within a reasonable time after its receipt, else the law will treat the receipt as a final ácceptanee and preclude any later objection on the ground of inferior quality. [Benjamin on Sales, section 703; Graff v. Foster, 67 Mo. 520; Water Co. v. Aurora, 129 Mo. 541.]

So where a water company furnishes water to a city under a written contract as to standard, the use of the water for a year without objection as to quality, was held a waiver. [Lamar Water Company v. Lamar, 140 Mo. 145.] But the evidence offered as to the test was incompetent for another reason. The test made by Mr. Humphrey was two years after the machine had been installed and six months after it had broken down. The question was as to the capacity of the machine in February, 1900, when furnished. There was no evidence or offer of evidence as to how the machine had been used or misused, and accordingly the offers were too remote and did not tend to show the dynamo and engine were not of the character and capacity called for in the lease when they were installed.

We think the demurrer to the evidence was properly sustained and the judgment of the circuit court is affirmed.

Burgess, P. J., and Fox, J., concur.


source: Caselaw Access Project

author: BURGESS, P. J.

license: Public Domain

text:
    CHARLES R. PIERCE, Appellant, v. JAMES LEE, doing business under the name and style of THE LEE LINE STEAMERS.
    Division Two,
    June 19, 1906.
    1. GRANTING NEW TRIAL: Reason Not Specified: Appeal. The statute requiring “every order allowing a new trial” to “specify of record the ground or grounds on which such new trial is granted,” is not mandatory in the sense that the respondent must suffer for the failure of the court to specify of record the ground for ordering a new trial. In such case the action of the court cannot he assumed to have been based on any particular ground, but the ruling will be considered on appeal, as prior to this statute, by looking into the correctness of the rulings below in admitting evidence, and in giving and refusing instructions.
    2. -: -: Verdict Against Law. Where there was ample evidence to support the verdict, the presumption will not be indulged that the trial court granted a new trial on the ground that the verdict was against the law under the evidence.
    3. -: -: Refusing Instructions. Where the instructions requested on behalf of the losing party were properly refused, either because there was no evidence on which to base them, or because they wrongly declared the law, it will not be held that the court granted the new trial because of the refusal of those instructions.
    4‘. WILL: Condition Broken: Forfeiture: No Entry: Waiver. Where an estate was devised to testator’s wife upon condition that she convey one third of it to each of his two sons on their reaching the age of twenty-one years respectively, and she failed to comply with the same, but long after one of them reached that age she leased a part of the land belonging to the estate without, his joining therein, and he at no time made entry for condition broken, nor complained and took no action to obtain possession, but shared in the rents collected, he waived the condition and his right to assert forfeiture.
    5. -- — : -: -: -: -: Ejectment: No Title In Plaintiff. The plaintiff, in order to maintain ejectment, must have the legal title. If the property was devised by will to plaintiff’s mother upon condition that when he became of age she would convey one-third thereof to him, and she had failed to do that up to the time suit was brought, and he had not entered for condition broken but had waived same, he cannot maintain ejectment.

      Appeal from Pemiscot Circuit Court. — Hon. Henry C. Riley, Judge.
    Affirmed.

      Roberts & Corbett for appellant.
    (1) Every order granting a new trial shall specify of record the ground or grounds upon which the same is granted. Sec. 801, E. S. 1899. This is a positive Command of the statute. Candee v. Eailroad, 130 Mo. 153; Millar v. Car Co., 130 Mo. 517. It is, and should he, the purpose of the court to endeavor to effectuate the intention of the Legislature as expressed in this' statute, and to say that the trial court did not err in granting a new trial without specifying of record the ground or grounds upon which the same was granted, would render this statute a meaningless conglomeration of words. Candee v. Eailroad, 130 Mo. 154; Millar v. Car Co., 130 Mo. 517. (2) There was abundant evidence to support the verdict of the jury; they are the sole judges of the facts, and their verdict should not have been disturbed if there was any evidence upon which the same was predicated. And it was error for the court to grant a new trial for this reason. Cannon v. Light Co., 145 Mo. 502. (3) Plaintiff had the right to sue in ejectment for condition broken. O’Brien v. Wagner, 94 Mo. 93; Ellis v. Kyger, 90 Mo. 600. (4) Defendant’s instruction 5 was properly refused, for the reason that there was no evidence upon which to predicate it. (5) Defendant’s instruction 6 was properly refused, for the reason that if the plaintiff was entitled to recover under the will, he was entitled to what the will gave him. The latter part of the instruction is also clearly inconsistent with the first part of it. (6) Defendant’s eighth assignment of error in his motion for a new trial is that the court erred in refusing to sustain his demurrer to plaintiff’s evidence. There is no merit in this contention, as his demurrer was waived by offering testimony in his own behalf. Hilz v. Railroad, 101 Mo. 36.

      Faris & Oliver for respondent.
    (1) "While it is true that the trial courts are by statute required to give their reasons for granting a new trial, yet this statute is not mandatory in the sense that the respondent is required to suffer should the court neglect or omit so to set out its reasons. Hewitt v. Steele, 118 Mo. 463; Bank v. Armstrong, 92 Mo. 265; Milling Co. v. Boggess, 80 Mo. App. 296; Secrist v. Eu-bank, 104 Mo. App. 113; Roe v. Bank, 167 Mo. 420. On the contrary, the converse seems to he the rule, and the appellant is the one who suffers by such dereliction, to the extent, at least, that before he is entitled to a reversal, he must show that none of the grounds alleged in the motion for a new trial was well taken. Lovell v. Davis, 52 Mo. App. 342; Hewitt v. Steele, 118 Mo. 473; Bank v. Wood, 124 Mo. 72. Appellant had his remedy to compel the trial court to specify its reasons for sustaining the motion for a new trial. Milling Co. v. Boggess, 80 Mo. App. 296. (2) The question for this court to determine is whether or not the action of the trial court in granting a new trial can he sustained upon any one or more of the grounds specified in said motion. (3) This was a plain action in ejectment. Plaintiff must recover if at all on his legal title. At the time of bringing this action, he had no legal title. He did not even have an equitable title.
   BURGESS, P. J.

This is an action of ejectment for a one-third interest in two acres of land, in the city of Caruthersville. The petition is in the usual form in such cases.

The answer admits the possession of the property, but denies all other allegations in the petition. It then alleges that one il. Clay Lewis had leased the said land from Mary Jane Pierce and Newton Pierce for the term of five years from the first day of January, 1897; that said lease contained a clause permitting the assignment of said lease, and a farther clause giving to said H. Clay Lewis or assigns the option of renewing the same for a farther term of five years upon the expiration of the first term; that said H. Olay Lewis duly assigned said lease to the defendant; that defendant entered into possession under said lease and still retains possession of said land thereunder; that upon the expiration of the first term of five years defendant gave notice to said lessors that he desired to exercise the option contained in said lease, and to extend the same for a farther term of five years.

The answer also alleges that said Mary J. Pierce is a widow of one W. T. Pierce, and that said premises are a part of the homestead or home place upon which said W. T. Pierce was living with his said wife up to the time of his death; that at the time of the making of said lease to said Lewis, said Mary J. Pierce was residing upon the premises and making it her home, and that she was yet living at the time of the trial.

It farther alleges that the legal title in said land at the time of the making of said lease and at the time of the trial of this cause was in said Mary J. Pierce, and that defendant leased said premises without any knowledge or notice whatever of plaintiff’s alleged claim.

Plaintiff replied to defendant’s answer, denying all new matter therein contained.

The facts .are about as follows:

On the — — day of January, 1885, William T. Pierce died, leaving a will, under the terms of which, after giving to John W. Pierce and Mrs. Mary Ann Camp, two of his children, one hundred dollars each as their full share of his estate, he devised and bequeathed all his property, real and personal, to his wife, Mary J. Pierce, upon two conditions:

First, that when his son Charles R. Pierce, the plaintiff in this action, should arrive at the age of twenty-one years, she, the said Mary J. Pierce, should pay to hira an amount equal to one-third the value of his, the said William Pierce’s estate.

Second, that when his son Noah N. Pierce should arrive at the age of twenty-one years, she, the said Mary J. Pierce, should pay to him an amount equal to one-half the remainder of his, William T. Pierce’s estate.

And the will concluded its provisions by appointing the said Mary J. Pierce executrix of his, William T. Pierce’s last will and testament.

On the 27th day of January, 1885, the will was duly probated, and on the 29th day of June, 1885, the said Mary J. Pierce, was by the probate court of Pemiscot county, Missouri, appointed executrix of said last will and testament and duly qualified as such. Such will was duly recorded, both in the probate court and in the office of the recorder of deeds in Pemiscot county, Missouri..

On the 20th day of April, 1888, Charles R. Pierce, the plaintiff in this cause, reached his majority. The first condition of the will was not complied with, and had never been up to the time of the trial of this cause, but the widow, Mary J. Pierce, and this plaintiff occupied, controlled and collected the rents off of all the deceased ’s land, among which was the premises of which the land involved in this suit was a part. And the plaintiff collected and received his proportionate part of the rents arising from the premises in question, until December 30, 1896, when one H. C. Lewis, being desirous of getting a location in the city of Caruthersville, on the bank of the Mississippi river, on which to build a warehouse, to be used as a shipping and receiving point, induced Mary J. Pierce and Noah N. Pierce (who in the meantime had reached his majority and who was and had been receiving his part of the rents of the premises in question, as well as the other lands of the testator since his majority) to enter into an instrument of writing or lease granting to him the premises in question for the period of five years in consideration of him, the s'aid H. C. Lewis, complying with the conditions on his part in said instrument required to be performed, and which said instrument stipulated that the said H. C. Lewis at his option at the end of the term specified should have said premises for another and further period of five years.

After the execution of the instrument referred to the plaintiff continued, to collect his proportionate part of the rents arising from the balance of the tract of land off of which the premises in question was carved out until the time of the institution of this action.

On the 21st day of January, 1898, H. C. Lewis assigned his interest in the lease to the defendant, James Lee.

. On the 30th day of December, 1901, the five years for which the premises in question were leased expired, and defendant sought to have Mary J. Pierce and Newton Pierce renew the same as per the option therein contained, which they refused to do.

On the 7th day of April, 1902, after said five years had expired, the defendant denying plaintiff’s title and ignoring his rights to the premises in question, plaintiff instituted this action.

Plaintiff, at the time of the filing of this action and at the time this trial was had, had never had conveyed to him by Mary Jane Pierce or by any one else the land in controversy or any part thereof. His sole claim thereto was based upon said will.

At the time of the making of the lease in question to said H. C. Lewis, which lease was made on the 30th day of December, 1896, Mary J. Pierce was residing on a portion of the tract from which the land in question was carved. She was living at said date, and continued so to live until the year 1899, in the home place or house, situated as aforesaid, in which said W. T. Pierce had made his home prior to and at the time of his death. No dower or other interest in any of the lands left by said W. T. Pierce had ever been set-off to his widow. Newton Pierce was residing with his mother on said land at the time the lease in question was made.

It was shown that the value of the whole tract of land, which constituted the homestead of W. T. Pierce and out of which the land in controversy was carved, was not at the time of his death' over $1,200.

After the making of the lease in question by Mary J. Pierce and Newton Pierce to said H. Clay Lewis, and after its assignment to defendant, valuable improvements were placed thereon by defendant, and defendant had for more than five years been using the same as a landing for his steamboats and for warehouse purposes. Prior to the beginning of such latter use, the land in question had not been used for any purpose except a yard and other similar purposes for the old homestead.

The plaintiff asked and the court gave the following instructions:

“1. The court instructs the jury, that if you should find and believe from the evidence, that the defendant leased the property in question from Mary J. Pierce and N. N. Pierce, and further find that Charles R. .Pierce, N. N. Pierce and Mary J. Pierce are co-tenants of the property, and that defendant James Lee failed and refused to recognize the rights of the plaintiff as a co-tenant thereof, but paid plaintiff’s co-tenants exclusively the rents and said co-tenants failed to share said rents and profits in and to said property, then in such case your finding should be for the plaintiff.
“2. The court instructs you, that if you should believe and find from the evidence that the plaintiff was ousted from the use and possession of his interest in the property in question according to instruction numbered 1, then in that case you shall find for the plaintiff such amount of damages as the proof shows you was a reasonable monthly rental value of the said property, from the date yon shall find him to have been ousted.
‘ ‘ 3. The court instructs the jury that if you should find and believe from the evidence, that Mary J. Pierce qualified as executor under the will of ¥m. T. Pierce, and that said will was duly probated, then as far as she and her assigns are concerned they must abide by the terms of said will and the conveyance of the property therein; and you are further instructed that the condition provided for in said will, ‘that Mary J. Pierce should pay to Charles R. Pierce, the plaintiff, the one-third interest of all the devisor’s estate, both personal and real, on his arriving at the age of twenty-one years, ’ is a condition subsequent which inures to the plaintiff to exercise at his option after he arrives at said age; and if you should further find from the evidence that at any time after his arriving at the age of maturity, said property was not so paid to plaintiff and a settlement was not made in compliance with the condition of said will, plaintiff has a right to assert his right of possession to or ownership over his interests in the property conveyed by said will against any adverse holder thereof.”

The defendant requested, and the court gave for defendant, the following instructions:

“1. The court instructs the jury, that if you find and believe from the evidence, that the land in suit was a part of the homestead owned by W. T. Pierce in his lifetime; that he lived at and on said lands prior to and up to the time of his death, and that after his death, and up to the time when his widow executed and delivered the lease shown in evidence his said widow, Mary J. Pierce, was living on and making her home upon said land, then and in that event said land constituted the homestead of said Mary J. Pierce and she had the right to lease the same to H. C. Lewis or to any one else.
“2. You are further instructed that H. C. Lewis had the right to assign this lease to the defendant, and that the evidence in this case shows thathe did so assign it to the defendant, who upon such assignment took all of the rights and privileges conferred therein upon the said H. C. Lewis. That said lease gave the right to said Lewis or his assigns as to Mrs. Pierce and N. N. Pierce to extend the same for another and further term of five years upon the expiration of the original term of five years, and that all that was necessary to be done by the defendant, James Lee, was that he should give notice to Mary J. Pierce, on or before the expiration of said term originally granted, of his desire to avail himself of the option in said lease contained. So if you find that said defendant, personally or by his agent, did notify said Mary J. Pierce of his desire to extend said lease as aforesaid, on or before the expiration of the same, then by such act the said lease was extended for a further term of five years, from the first day of January, 1902.
‘13. You are further instructed that until dower be set out and assigned to a widow, she has the exclusive rights to the rents and all of them arising from the homesteads, or homeplace, and all lands used in connection therewith. So if you find and believe from the evidence that the two acres of land in suit here formed a part of the homestead of said Mary J. Pierce and that no dower has ever been assigned to her out of the estate of her former husband, ~W. T. Pierce, then and in that event she had the right to lease said land to the said Lewis or to any one else, without joining with her in said lease the plaintiff or Newton Pierce.
“In this connection you are instructed that there is no proof that dower has been assigned to her, but on the contrary proof that no dower has ever been assigned.
“4. You are further instructed that if you believe and find from the evidence that H. C. Lewis rented and leased said land from the said Mary J. Pierce, in the belief in good faith that she was claiming the same as a homestead; that at the time he so rented it said Mary J. Pierce was living thereon and using it as her home and that said Lewis had no actual knowledge of the terms of the will in question, your verdict and finding will be for the defendant.”

The following instructions were requested by defendant, and were by the court refused:

“5. The court further instructs the jury that if you find and believe from the evidence that the plaintiff has been out of the possession of the land mentioned in his petition, and of the parcel of which it was formerly a part for more than ten years, next before the 7th day of April, 1902, and that Mary J. Pierce and Newton Pierce under whom the defendant claims, and defendant, have been in the open, notorious, exclusive, hostile, peaceable and adverse possession of the said land for more than ten years before the said 7th day of April, 1902, then and in that event your verdict and finding-should be for the defendant. And you are instructed that in order to make up this period of ten years, the possession of Mary J. Pierce, if you find that such possession was exclusive and adverse to the plaintiff, may be tacked to, or added to the possession of the defendant.
“6. The court further instructs the jury that if you find and believe from the evidence that Mary J. Pierce has never complied with the terms of the will' read in evidence by paying to the plaintiff one-third of the amount of all of the real and personal property left by W. T. Pierce, then and in that event, the plaintiff had the right to bring this suit in the form in which it is here presented to you, and if you should find that plaintiff, in the light of all the law given to you by the court, is entitled to recover, you can find for him only such interest in this land, as one bears to the whole number of children left by W. T; Pierce, and to two-thirds, that is, an undivided one-sixth interest and no more.”

At the close of all the testimony the defendant asked the court for an instruction in the nature of a demurrer to the evidence, which the court refused to give, and defendant excepted.

The jury returned the following verdict:

“We the jury find the plaintiff is the owner of and entitled to the possession of one-third interest of two acres of land sued for; that the plaintiff has been damaged in the sum of $180, and that the monthly value of the rents is-----dollars. ’ ’

In due time defendant filed motion for new trial, assigning numerous grounds therefor, among which were the following:

“3. .That the judgment is against the law under the evidence.
“7. That the court erred in refusing to give instructions numbered 5 and 6, prayed for by the defendant.
“8. That the court erred in refusing to instruct the jury upon the close of plaintiff’s case that the verdict and finding ought to be for the defendant.
‘£ 9. That the court erred in refusing to instruct the jury upon the close of all the evidence that their verdict and finding should be for the defendant.
“10. That the verdict and judgment are so manifestly contrary to the law and the evidence as to indicate that the same is the result of passion and prejudice on the part of the jury.
“11. That counsel for plaintiff was guilty of improper conduct and made use of improper language in his closing argument herein in the presence of the jury, in this, to-wit, that in said argument said F. D. Roberts used the following language, viz: This is a deliberate attempt on the part of these rich Lee Steamers to steal the property of the plaintiff.’ ”

The court .sustained defendant’s said motion for a new trial and set aside the verdict of the jury. In the order sustaining said motion the court did not give any reason for sustaining the same and for granting a new trial. Thereupon plaintiff took, and now prosecutes this appeal.

It is insisted by plaintiff that the court committed reversible error in not specifying the grounds upon which the new trial was granted. Section 801, Revised Statutes 1899, provides that “only one new trial shall be allowed to either party, except: First, where the triers of the fact shall have erred in a matter of law; second, when the jury shall be guilty of misbehavior; and every order allowing a new trial shall specify of record the ground or grounds on which said new trial is granted. ’ ’

Plaintiff argues that the statute is mandatory, while the defendant contends that it is not mandatory in the sense that the defendant is required to suffer for the neglect of the court in failing to specify of record the ground or grounds upon which the new trial was granted. This precise question was passed upon by this court in the case of Roe v. Bank of Versailles, 167 Mo. 406, in which it is held that when the trial court, in sustaining a motion for a new trial, fails to specify the ground upon which its action is based, as required by section 801, Revised Statutes 1899, its action cannot be assumed to have been based on any particular ground, but the ruling will be tried on appeal, as prior to the new statutory rule, by looking into the correctness of the rulings below in admitting evidence, and in giving and refusing instructions.

The third assignment of error presented by the motion for a new trial, and insisted upon before this court as justifying the trial court in granting the new trial, is that the verdict of the jury was against the law under the evidence. In response to this’contention, it is only necessary to say, without going into detail, that there was abundant evidence to support the verdict, and we are not at liberty to presume that the new trial was granted on that ground.

The next assignment of error presented by the motion for a new trial, and insisted upon before us as ground for sustaining the action of the court in allowing a new trial, is the seventh, in which it is asserted that the court erred in refusing to give instructions numbered five and six, asked by defendant. The first of these was properly refused for the want of evidence upon which to predicate it. There was no evidence tending to prove that Mrs. Mary J. Pierce’s possession of the property in question was adverse to the plaintiff; upon the other hand, the evidence shows that plaintiff had been collecting his portion of the rents from the time he became of age up to the time his mother and brother, Newton Pierce, leased it to H. C. Lewis on the 30th day of December, 1896. Mrs. Pierce’s possession was not, therefore, adverse to plaintiff, and could not be tacked on or added to the possession of defendant.

Said instruction number six was also projoerly refused because it recognized the right of plaintiff to prosecute this action, when by the express terms of the will the title to all of the property of the testator was vested in plaintiff’s mother, Mrs. Mary J. Pierce, for and during her widowhood or lifetime, upon the condition that she pay to plaintiff the amount of one-third of the testator’s estate when plaintiff arrived at the age of twenty-one, and to his son Noah N. Pierce, upon his arrival at the age of twenty-one years, one-half of the value of the remainder of testator’s estate; but upon the marriage or death of said Mary J. Pierce, the balance of the testator’s estate then in the possession of his said wife, or of which she died seized, to be equally divided between the testator’s two sons, Charles B». and Noah N. Pierce. "While it was shown by the evidence that no part of the value of one-third of the testator’s estate was ever paid by his widow to plaintiff in accordanee with the conditions of the will, yet there was never an entry by plaintiff for condition broken. “By the common law, the only mode of taking advantage of a breach of a condition which had the effect to defeat or work a forfeiture of an estate was by an entry, upon the principle that it required as solemn an act to defeat as to create an estate. And when such entry had been made, the effect was to reduce the estate to the same plight and to cause it to be held on the same terms as if the estate to which the condition was annexed had not been granted. But where a life estate was derived upon condition that the devisee pay a certain annuity, with a limitation over after the death of the devisee for life, and the latter failed to perform, and died leaving a large sum in arrear and unpaid, it was held toó late for the heirs of the testator to take advantage of the breach by making an entry, after the estate had passed by limitation into the hands of the remainder-man.” [2 Washburn on Real Property (6 Ed.), sec. 953.] But the evidence tends to show that, instead of insisting upon the forfeiture, plaintiff waived the same. He arrived at the age of twenty-one years on the 20th day of April, 1881, and not until the 7th day of April, 1902, was this suit instituted, although he had full knowledge of the breach of said condition, nor did he in the meantime complain, enter upon or take any action to gfet possession of the property. He also knew that his mother, Mrs. Pierce, had leased the property to Lewis for a term of years, but made no protest, and received his portion of the rents during the term of that lease, and for part of the time after the breach of the condition he lived with his mother on the property devised to her. All this was done, so far as the record discloses, without complaint or any action upon the part of plaintiff to reclaim the land. As was said in Hooper v. Cummings, 45 Mo. 359:

“If ever there could be a waiver of a condition evidenced from the conduct of a party, this would seem to be such a case; certainly a.s much so as those cases where a person stands silently by and permits property to be conveyed to which he has a legal claim. Lord Coke remarks, 1 Co. Litt. 218, ‘Regularly, when any man will take advantage of a condition, if he can enter, he must enter; and, when he cannot enter, he must make a claim; and the reason is, for that a freehold shall not cease without entry or claim, and also feoffor or grantor may waive the condition ad his pleasured Vide Willard v., Henry, 2 N. H. 120, where a non-claim for a much shorter period of time was held to be a waiver of the condition.”

It follows that there was no error in refusing instruction number sis.

We come now to the only remaining question upon which, in our opinion, it is necessary to pass; that is, the refusal of the court to give the instruction asked by defendant in the nature of a demurrer to the evidence. There is no question better settled, in cases of this character, than that the plaintiff, in order to maintain ejectment, must have the legal title. The evidence clearly shows that the title was not in plaintiff at the commencement of this suit, but was in Mrs. Mary J. Pierce. The legal title to the property was vested in her by the will, for and during her widowhood or lifetime, if she did not marry. It is true this was upon condition as in the will specified, which was never complied with; but as the condition was waived by plaintiff, the legal title remained in the devisee, and she only could maintain ejectment for the possession of the property under the circumstances disclosed by the record in this case.

For these reasons the judgment should be affirmed. It is so ordered.

All concur.


author: FOX, J.

text:
    McCLELLAN, Appellant, v. POWELL et al.
    Division Two,
    June 19, 1906.
    APPEALS: No Sufficient Abstract: Examining Transcript. The •court will not in „a civil case go through, the transcript to ascertain what the issues were and to cull out the evidence offered at the trial. The rules .of the court require such an ab- • stract as will give the court a complete understanding of the case, and where the abstract does not contain the petition, and sets out meagerly only parts of the evidence, and omits the contract upon which the suit seems to be based, the judgment will be affirmed or the appeal dismissed.
    Appeal from Pemiscot Circuit Court. — Hon. Henry C. Riley, Judge.
    Appikmed.

      G. G. Shepard for appellant.

      Russell é Beal for respondents.
    The abstract of the record is very incomplete and is wholly insufficient to enable the appellate court to have a full and complete understanding of the questions presented for review. Eespondents ask that the appeal be dismissed for failure to comply with rule 13 of this court. If this abstract is sufficient, then, indeed, have litigants expended uselessly large sums of money in preparing abstracts heretofore. Mitchell v. Mitchell, 191 Mo. 475.
   FOX, J.

This cause is here by appeal on the part of the plaintiff from a judgment of the circuit court of Pemiscot county, Missouri, in favor of. the defendant.

At the very threshold of the consideration of this case it is manifest that the abstract of record filed by the appellant absolutely fails to comply with the rules of this court. This abstract does not purport to embrace the petition as filed in the circuit court of Pemiscot county, but simply undertakes to give the substance of it. The nature and character of the cause of action is thus indicated in the abstract:

“Plaintiff for his cause of action respectfully states, that on the 21st day of April, in the year 1900, the defendants representing to be owners in fee of certain real estate, lying and being in the county of Dyer, and State of Tennessee, on which there was then and at that time standing and growing upon said land certain valuable timber suitable to be converted into valuable and marketable lumber. The land on which said timber then was standing is described as follows by partial bounds and meets and distances as follows, to-wit: Lying and being in Dyer county, State of Tennessee, bordering on the Mississippi river, commencing at or near the south side of the mouth of Blue Bank Bayou, and thence running due east a distance of two miles more or less, thence south one-half mile more or less, thence west two miles more or less, to the Mississippi river, and generally known as the Dan Wheaton land No. 2, and the Alexander Connor tract aggregating in toto nine hundred and fifty-seven and one-half acres.
“Plaintiff further states that relying upon said representations as aforesaid, one Chas. Gr. Shepard and J. H. Powell were induced to purchase said timber then standing and growing upon said land as aforesaid, for which they then and there paid the defendants valuable consideration, to-wit, the sum of one thousand dollars, or other large sum, and then and there taking from said defendants jointly a written conveyance for same, and immediately went upon said land and commenced to cut and fell the timber thereon as per the terms of said conveyance made.
“The petition further states that plaintiff acting in good faith and being guided by the terms of said contract between defendants and C. Gr. Shepard and J. H. Powell bought of the said'C. Gr. Shepard and J. IT. Powell, the contract for the sale of said timber on the 22nd day of June, 1900, and paid therefor a valuable consideration in the sum of $350, which said transfer and conveyance from the said C. Gr. Shepard and J. H. Powell to plaintiff is fully set out in the transcript in this case. The petition further states that at the time defendants entered into the contract with C. Gr. Shepard and J. H. Powell for the sale of the timber mentioned which said contract was later bought from the said C. Gr. Shepard and J. H. Powell by the plaintiff, being the same contract sued on, that defendants were not then and at that time the owners in fee of said land neither were they entitled to the possession of all of said land as claimed by defendants, but in reality were owners in fee of one-half of said land or less, that the main tract of land on which the most valuable timber was at the time and is now standing, was sold under execution by the sheriff of the county of Dyer, State of Tennessee, to one R. M. Hall, of the county and State aforenamed.
“The petition further states that defendants not being the owners of the land mentioned and of which he had purchased the timber, he was unable to cut said timber, the real owner preventing him from cutting and removing same, and defendants failed to keep him in possession of said land, he was damaged in the sum of $7,000, for which amount he prayed judgment.”

There is very little evidence recited in this abstract. The certified copy of the writ of injunction and the record in Dyer county, Tennessee, is not embraced in said abstract, but a mere reference to it is made and then we are directed to see the transcript on page 22.

It is apparent from the record before us that the origin of this suit is from a sale of certain timber upon land in Dyer county, Tennessee. It appears from the Substance of the petition as embraced in the abstract of record that the assignors of the plaintiff in this case purchased this timber and at the time of the purchase took from the defendants jointly a written conveyance for this timber standing upon the land in Dyer county, Tennessee, and this action seems to be predicated upon a breach of the warranties contained in such conveyance. There is an entire absence from this abstract of the conveyance, nor does the petition undertake to allege what the terms of such conveyance were. There is also an entire absence of any testimony on the part of the plaintiff as to what were the terms of this conveyance. First, this abstract fails to show the filing of a petition which stated a cause of action. Second, the recitation in the abstract of the testimony is so meager that this court is unable to determine the theory upon which the cause was submitted to the jury. It will be observed that the petition in this cause simply alleges that the defendants executed a conveyance to plaintiff’s assignors, C. G. Shepard and J. H. Powell, and the court is left to guess or conjecture as to what were the terms of such conveyance. So far as this record discloses the conveyances made to this timber may have been simply a quit-claim deed with no warranties of title to the land; hence it is apparent that this petition states no cause of action which would authorize a recovery for damages or breach of contract, or warranties. If plaintiff is entitled to recover for a breach of the contract or warranties in the conveyances made by the defendant, it is absolutely essential that the terms of such contract shall be set forth in the petition that the court may determine as to whether or not it was such a conveyance or contract as contained an express warranty of title to the land upon which this timber was growing, or whether such warranties were to be implied from the terms of the contract. This is fatal to this proceeding. There is but slight portions of the evidence embraced in the abstract of record. The necessities and requisites of an abstract of record in pursuance of rule 13 of this court, are fully set forth and all the authorities reviewed in Mitchell v. Mitchell, 191 Mo. 475, and an examination of the abstract of record filed in this canse makes it manifest that it fails to comply with the essential requirements as announced in that ease.

For the reason that the petition as indicated in the abstract of record fails to state a cause of action, and for failure to comply with the rules of this court in respect to the filing of a proper abstract, the judgment in this cause should be affirmed,' and it is so ordered.

All concur.


author: GANTT, J.

text:
    BROWN, Appellant, v. GWIN et al.
    Division Two,
    June 19, 1906.
    1. SETTING ASIDE DEED: Mistake and Fraud: Subsequent Purchasers. A deed cannot be set aside as against subsequent purchasers who bought the land without any knowledge or notice that would put them on their inquiry, that the deed to their grantor did not correctly describe the land and had been obtained from an illiterate woman by fraud and misrepresentations on the part of their grantor.
    2. -: -: Character of Proof. A court of equity has power to correct a mistake in the description of the land as made in the deed, but it will do so, even when the rights of subsequent purchasers have not intervened, on parol evidence, only when that evidence is clear and convincing.
    3. - — : -: -: Matter for Chancellor. While plaintiff was an illiterate woman, and therefore the transaction by which defendant obtained a deed from her to the land will be carefully scrutinized, yet her long delay in ascertaining her alleged mistake that she had made a deed for one tract whén she thought she was signing a deed for a different tract less valuable, the close proximity of her residence to the tract in dispute, the exercise by the grantee of the right to sell portions of the tract, his positive denial of the mistake, the evidence that her son assisted in measuring the land before she signed the deed, make a case in which the chancellor was better able to measure the evidence than this court, and this court will not interfere with his finding that it lacked that clear, cogent and convincing character which the law requires for setting aside so solemn an instrument as a deed to land. 107 Sup. — 32

      Appeal from Pemiscot Circuit Court. — Row-. Henry C. Riley, Judge.
    Affirmed.

      Hawkins and Brewer $ Collins for appellant.

      Faris S Oliver for respondents.
   GANTT, J.

This is a suit in equity begun in the circuit court of Pemiscot county, to set aside a deed made by the plaintiff, Sarah E. Brown, sometimes known as Mrs. Louie, to the defendant Mollie Gwin about the 27th day of June, 1898, for a parcel of ground 105 feet north-and-south by 900 feet east-and-west on the north side of the right of way of the St. Louis, Ken-nett & Southern railroad, now a portion of the St. Louis & San Francisco railroad. The land is a part of the northeast quarter of the southwest quarter of section 23, township 19, range 11, in Pemiscot county, Missouri.

The suit was commenced and made returnable to the November-term, 1901. The petition in substance states that on the 27th of June, 1898, the plaintiff bargained and sold to one of the defendants, Frank M. Gwin, certain real estate in the northeast quarter of the southeast quarter of section 23, township 19, range 11, in Pemiscot county, and in or near the town of Pascóla in said county, within the following metes and bounds: Commencing 210 feet east on the north boundary line of the right of way of the St. Louis, Kennett & Southern railroad, where the same enters and runs across the northeast quarter of the southeast quarter of said section from the west in Pemiscot county, Missouri, and more particularly known as southeast corner of the John L. Swail lot bought of Sarah E. Brown, running thence 210 feet along the northern boundary of the said St. Louis, Kennett & Southern Railroad Company’s right of way, to a stake;'thence north 420' feet; thence west 210 feet; thence south 420 feet to the place of beginning. That laboring under a mistake, plaintiff made, executed, signed and acknowledged, as she thought, a deed to the above-described land of the defendant, Frank M. Gwin, for twenty dollars; that plaintiff cannot read or write and was not familiar with the calls of the land; that the defendant, Frank M. Gwin, induced and caused her to sign a deed without the same being read over to her and without knowing its contents ; that the said deed does not convey the property she bargained and sold to the said Frank M. Gwin, but she is advised that she signed and executed a deed to Mollie Gwin, the wife of said Frank M. Gwin, for an entirely different parcel of land, far more valuable than the one she intended to convey, to-wit: The tract of land commencing on the right of way of the St. Louis, Kennett & Southern railway where said right of way crosses the east boundary line of the northeast quarter of the southwest quarter of said section 23 on the east quarter section line of said northeast quarter of the southeast quarter, and running thence west along said north boundary line of said right of way 900 feet; thence north 210 feet; thence east 900 feet to the quarter section line aforesaid; thence along said quarter section line to the place of beginning. That plaintiff did not sell the last above-described land or any part thereof to said Frank M. Gwin, Mollie Gwin, his wife, or either of the other defendants herein named, and did not intend to make a deed to either of said parties for the last above-described premises; that said Frank M. Gwin on the 27th of June, 1898, presented her a deed, without reading it to her, and under a misapprehension as to the lands she was conveying or the party to whom she was making the deed she was induced by the said Frank M. Gwin, through fraud and misrepresentation on his part, to make to the said Mollie Gwin a deed to the last above-described property; that the said Mollie Gwin has conveyed parts of said land to A. P. Dorris, A. S. Thomas, and A. A. Russell, defendants herein; that the land she intended to convey was of the value of twenty dollars, hut that the land included in the description of the deed which she executed hy mistake, and a false and fraudulent representation of the defendant, is of the value of one thousand dollars; that she did not know at the time of the execution of said deed that she was making Mollie Gwin a deed to said premises; that Prank M. Gwin took the acknowledgment himself and the said deed had not been, as she was advised at the time of filing her petition, filed for record in the office of the recorder of deeds of said county; that said conveyance was either hy the mistake of the scrivener, Prank M. Gwin, who drew the same, or purposely, fraudulently and corruptly so drawn; that it did not express the mutual interest of the parties. Plaintiff states that she is ready and willing to make a good and sufficient deed to the said Prank M. Gwin or his assigns to the property intended to he conveyed; that the said defendant refused to accept and make the aforesaid corrections, wherefore plaintiff prays for a decree directing and compelling the defendants to execute and reform said deed to the plaintiff for the property so conveyed hy mistake and fraud, and for a judgment for the yearly rental of said premises for the years 1900 and 1901, and until said premises are delivered to plaintiff, the sum of one thousand dollars, and for such other and further relief that may be hy the court deemed just and proper.

The defendants, Prank and Mollie Gwin, admit that they are in possession of the land last described in said petition, to-wit, the tract 900 feet long hy 105 feet wide, hut deny all the other allegations in the petition. The other defendants filed a general denial. The cause was submitted to the court on the 7th of March, 1902, and judgment rendered for the defendants. Within due time, the plaintiff filed her motion for new trial, which was heard and overruled, to which she saved her exceptions and thereupon appealed to this court.

The evidence tended to show and it was admitted by the defendants, that the plaintiff prior to the 27th of June, 1898, was the owner of the tract of land in suit; that Mrs. Sarah E. Brown was illiterate and could neither read nor write. The plaintiff testified that she sold to the defendant, Prank M. Gwin, a lot of ground 210 feet east-and-west by 420 feet north-and-south, lying due east of John L. Swail’s lot, for twenty dollars, and that she did not sell to Mrs. Mollie Gwin or anyone else, the tract which was 900 feet long east-and-west by 105 feet- north-and-south north of the north line of the right of way of the St. Louis, Kennett & Southern railway and situated in the northeast of the southeast quarter of section 23, township 19, range 11, in Pemiscot county; that she was sixty-five years old, and the deed was prepared by defendant Prank M. Gwin, and her acknowledgment taken by him; that as soon as she learned that the defendant, Prank Gwin, claimed the land in controversy, she caused an investigation to be made, but could find no deed on record, and could not learn what land he did claim; that she found Prank M. Gwin and he undertook to adjust the matter by having her make a second deed to Iva Williams; that he prepared the second deed also and took her acknowledgment, plaintiff thinking she was getting a correction of her former deed, but this deed was not read to her. The evidence also tends to show that ab'out the time of the contract of plaintiff with Prank M. Gwin, the plaintiff sold three other lots east of the tract which she claims to have sold to the defendant,- Gwin, one lot to A1 Campbell, 105 feet east-and-west by 210 feet north-and-south, and another to Dr. Burdett of the same dimensions, and the Swail lot 210 feet by 210 feet just east of the tract in controversy. John L. Swail, W. P. Garlan, George Louis, Joseph Hampton and Buck Smith all testified that they were' present at the time the trade was made between the plaintiff and Frank Gwin, and that the lot which plaintiff sold to Gwin was to be due east of the Swail lot and to be 210 feet east-and-west along the right of way, and 420 feet north-and-south. They all testified that they were present when the deed was prepared by the defendant, Frank Gwin, and was signed by the plaintiff, Sarah E. Brown, and that she could neither read nor write, and the deed was not read over to her before she signed it or afterwards,

• The defendant, Frank Gwin, in his testimony admits that the deed was not read over to the plaintiff, but says that he offered to read it over to her, and that she told him that she would not understand the description if he read it to her; that just so it was the land that he had run off, and satisfied her son Howard, was all she wanted to know. He testified further that before he made the deed he and Howard Ingram, plaintiff’s son, who was dead at the time of the trial, measured the land with a tape line, and Howard told his mother it was all right. In regard to making the deed to his wife, he testified that he did that in order that he himself could take the acknowledgment and said to the plaintiff, “Granny, just make the deed to my wife so I can take the acknowledgment.” The other witnesses for the plaintiff denied that any such statement was made, or at least that they heard no such statement. On the part of the defendant, Benjamin Lewis testified that he was not present when the trade was made, but was at the house of the plaintiff 'when the deed was made; that he heard Gwin tell the plaintiff to make the deed to his, Gwin’s wife; that Howard Ingram, the plaintiff’s son, was present, and Dr. Burdett was. there, he did not remember anyone else; that he went with Howard Ingram and Gwin to measure the land; that they first measured off one-half acre for Dr. Burdett, and then measured off an acre for witness, and then they measured off a tract 105 feet north-and-south and 900 feet east-and-west for Gwin; that he heard Howard Ingram tell his mother that everything was satisfactory and to make the deed; that he was not present when the. deed was written nor when the plaintiff signed it. The witness afterwards sold his lot to Swail.

A. P. Dorris testified that he was not present at the time of the trade between the plaintiff and Prank Gwin, or the making of the deed, and did not hear of any adverse claim on the part of the plaintiff to the land in suit until after he built his saloon. William Bracey testified for the defendants, but his testimony throws no light upon the controversy one way or the other. Gwin testified that John Swail and Joe Hampton, Buck Smith and Garland were not present when he traded for the lot in suit; that there was nobody there but Howard Ingram and Dr. Burdett in addition to himself and the plaintiff. He testified that he went to plaintiff’s house that day to make and take the acknowledgments of the deeds from plaintiff to Burdett and Lewis and while there said to plaintiff he would like to buy two or three acres of land from her, or all that she had above the railroad in the woods, and she said she did not want to sell so much, she wanted to save it for her son, but that if the witness could make a deal with Howard, her oldest son, for an amount of two or three acres, it would be all right, and that he then and there agreed with her to buy the tract 900 feet long by 105 feet north- and-south to begin on the section line on the east. She referred him to Howard, her son, and Howard said he would go to the mill and get Ben Lewis and a tapeline and run off the land, and he did so.

While it is alleged in the petition that plaintiff’s deed to Gwin was not recorded when she brought this suit on August 5th, 1901, the certified copy of said deed -read in evidence, discloses it was recorded on August 1st, 1898.

It also appears that afterwards one West desired to purchase a lot from plaintiff just west of the section line between sections 23 and 24, and this led to the talk between plaintiff and defendant Prank Gwin, and thereafter Gwin and and wife on the 3rd day of November, 1899, reconveyed to plaintiff a parcel of land, a portion of the 900 feet tract, commencing at a comer on section line between sections 23 and 24 north of said railroad for a starting corner, thence west parallel along said railroad 100 feet, thence north 105 feet, thence east 100 feet, thence south 105 feet to starting point, and on the same day plaintiff deeded to one Iva Williams, for the benefit of Prank Gwin, a tract 300 feet north-and-south by 300 feet east-and-west in said northeast quarter of the southeast quarter of section 23, township 19, range 11.

Thus matters remained until after defendant had conveyed three lots of this 900-foot tract to Dorris and others. There was testimony also that plaintiff had told different persons that Gwin owned the land down to the section line between 23 and 24.

It will be observed, first, that there is no allegation that Dorris and the other two defendants who bought from Mrs. Gwin had any knowledge whatever of any mistake in the deed from plaintiff to Mrs. Gwin and her deed to Mrs. Gwin was duly recorded when they bought. Not only this but Dorris testified that he had no notice whatever that plaintiff claimed there was a mistake in her deed. As to those defendants the decree of the circuit court was unquestionably correct.

As to the other defendants Gwin and wife and Iva Williams, there is no doubt of the power of the court of equity to correct a mistake in the description of land, but it is the settled .law of this State that when it is sought to correct such mistake by parol evidence, it must be clear and convincing. Courts of equity do not grant the remedy of reformation upon a probability, nor even upon a mere preponderance of evidence but only upon a certainty of error. [Sweet v. Owens, 109 Mo. 1; Parker v. Vanhoozer, 142 Mo. l. c. 627; Griffin v. Miller, 188 Mo. l. c. 334.]

When plaintiff conveyed the land in snit to Mrs. Gwin, there was no town at this point. Land was rated at $10.00 per acre, in that neighborhood. At the time the suit was brought it had become village or town property and was much enhanced in value. While plaintiff is an illiterate old lady, and therefore the transaction must be carefully scrutinized, her long delay in ascertaining her alleged mistake; the close proximity of her residence to the tract in dispute; the exercise by Gwin of the right to sell portions of the tract; her subsequent taking a deed from Mrs. Gwin to a portion of the tract; the positive denial of the defendant of the mistake; the evidence that her son assisted in measuring the land before she conveyed it, makes the case one in which the circuit court was better able to weigh the oral evidence than this court. • He saw the witnesses and observed their demeanor and he failed to find that clear, cogent and convincing evidence which the law requires to set aside so solemn an instrument as a deed to realty, and we are unable to convict him of error upon this record.

The judgment of the circuit court must be and is affirmed.

Burgess, P. J., and Fox, J., concur.


text:
    CHICAGO MILL & LUMBER COMPANY v. SIMS, Appellant.
    Division Two,
    June 19, 1906.
    FOREIGN CORPORATION: Not Authorized to Do Business Here: Buying Timber: Suit on Warrarity. Defendant sold to a foreign corporation the timber on his land, and warranted the title thereto, but, having afterwards sold the land to another without any reservation, the company sued him for breach of his warranty. The company had an office for its purchasing agent in Missouri, but no factory or other plant of any kind, and prior to the date of the deed the only business it did in this State with exception of the prirchase of the timber on the one tract o£ land, was to buy lumber and ship it to Illinois. It had not complied with the statutes of this State relating to foreign corporations, and had received no certificate from the Secretary of State authorizing it to do business here until after said purchase was made and until about one month before the suit was begun. Helé, that, following Tri-State Amusement Co. v. Forest Park Highlands Amusement Co., 192 Mo. 404, said contract was void and non-enforceable, and the company cannot recover for breach of warranty. [Disapproving Ehrhardt v. Robertson Bros., 78 Mo. App. 404.]
    Transferred from St. Louis Court of Appeals.
    Circuit court judgment reversed.

      George H. Williams and Moore & Williams for appellant.
    The very point on which the decision was affirmed in the St. Louis Court of Appeals in this case, i. e., that when it became necessary for a foreign corporation to go into court it could cure itself of its infirmity by then complying with the statute, is decided adversely in Tri-State Amusement Co. v. Amusement Co., 192 Mo. 404. As this is the only point in controversy in this case under the pleadings and evidence, and the same, having been decided adversely to the respondent by this court, we ask that the judgment in both courts be reversed.

      Faris S Oliver for respondent.
    (1) A statute which provides that if a foreign corporation transacts business in a State without having complied with the requirements of the law, it shall incur a penalty, does not render void contracts made by it without having so complied. Under a statute imposing a penalty for non-compliance a foreign corporation is not prohibited from doing business, and its contracts are not void. Ins. Co. v. Walsh, 18 Mo. 229; Clarke v. Ins. Co., 19 Mo. 53; Foundry Co. v. Augustine, 5 Wash. 67; Electric Co. v. Navigation Co., 8 Wash. 370; Tie Co. v. Thomas, 33 W. Ya. 566; Ins. Co. v. Rogers, 47 Pac. 848; Mfg. Co. v. Wilhoit, 84 Fed. 514. (2) If a foreign corporation, having made a contract without previously complying with the provisions and requirements of the law relating to such corporations, afterwards comply, even pending a suit by it, it has capacity to sue, and may maintain its action. Carson-Rand Co. v. Stern, 129 Mo. 381; Mfg.' Co. v. Hotel Co., 6 Wash. 122; Goddard v. Crefeld Mills, 21 C. C. A. 530; Dairy Co. v. Cole, 86 Fed. 739; B. & L. Assn. v. Bedford, 88 Fed. 7; Loan Assn, v. Elbert, 153 Ind. 198.
   BURGESS, P. J.

This is an action for damages for breach of covenant in a deed executed by the defendant, Sims, on the 29th of November, 1898, conveying to the plaintiff, the Chicago Mill & Lumber Company, a foreign corporation organized under the laws of the State of Illinois, the growing timber on certain lands in Pemiscot county, Missouri. Said deed, which was neither acknowledged nor recorded, allowed the plaintiff to cut and remove the timber within three years from the date thereof.

The covenant of warranty for breach of which this suit was instituted reads as follows:

“I warrant said timber and trees to be free and clear from any incumbrance done or suffered by me, or those under whom I claim, and I will warrant and defend the title to the said timber and trees to the said •Chicago Mill & Lumber Company, or their assigns, against the lawful claims and demands of all persons whomsoever. ’ ’

About a month after the execution of that deed, the defendant made and executed a quit-claim deed conveying to E. A. M. Webb and Joe Webb the land on which stood the timber theretofore sold and conveyed to plaintiff, without any reservation in said second deed as to the timber so sold. This deed was pat on record, and the Webbs began catting and removing the timber from said land, of which fact the plaintiff became aware, and notified the defendant to protect it under his covenant or warranty, which defendant, by letter, promised to do, and in said letter requested plaintiff to confer with his, defendant’s attorney, and act upon his advice respecting the necessary steps to be taken in that behalf. Thereafter the plaintiff, acting upon the specific advice of defendant’s said attorney, brought suit against the Webbs and one John Erwin to enjoin them from cutting and removing the timber from said land, but that suit resulted adversely to plaintiff the court holding that the title to the timber was in the Webbs.

The petition in the case at bar contains two counts; the first count asked judgment against the defendant for sum of seven hundred and twenty dollars, with interest from the 29th day of November, 1898, to date of judgment, together with the costs and attorney’s fees paid out by the plaintiff in the prosecution of said injunction suit. On the second count judgment was for the defendant, but with this we are not concerned as it is not in issue.

The only defense set up in the answer to said first count was that the plaintiff was a foreign corporation resident in this State and doing business therein at the time it took the deed from the defendant, but that it had not previously complied with the provisions of section 1025 of the Revised Statutes of 1899; that it had not filed in the office of the Secretary of State a copy of its charter or certificate of incorporation, nor made a sworn statement of the proportion of its capital stock represented by property located and business transacted in the State of Missouri, nor paid its incorporating fees, as required by said section, and had no capacity to make such contracts.

The cause was tried by the court, sitting as a jury. At the close of all the evidence the defendant asked the court to declare the law to be “that under the pleadings and proof in this ease the finding should be for the defendant,” which declaration of law the court refused to give, and defendant excepted. Judgment for the sum of $963.20 was rendered in favor of plaintiff and against the defendant, from which judgment, after the usual motions, defendant prosecuted his appeal to the St. Louis Court of Appeals, which court,, in an opinion written by Goode, J., affirmed the judgment, but Bland, P. J., being of the opinion that the decision is in conflict with the decision of the Kansas City Court of Appeals in the case of Ehrhardt v. Robertson Bros., 78 Mo. App. 404, the cause was ordered certified to this court for final decision.

At the trial of the case S. C. Humphreys, the Missouri agent of the plaintiff, testified that at the time and for about ten months prior to the execution of the deed in question he was purchasing agent for the plaintiff and had an office at Caruthersville, Pemiscot county. He testified that the company which he represented had no factory or other plant of any kind in Pemiscot county, Missouri, and that its business in this State consisted in purchasing lumber from sawmill people and shipping it to Cairo, Illinois; that prior to the date of the deed the only business his company did in this State, with the exception of the purchase of one tract of land, was to buy lumber and ship it to its factory in Illinois.

In plaintiff’s brief it is stated that its business was the manufacturing of boxes, that its factories were all in a foreign State, and that up to the time of the institution of this suit the only business in which it had been engaged in this State was the buying of lumber, timber and other raw material for shipment to Illinois for the purpose of manufacturing the same into boxes; but the record does not disclose any evidence tending to show the character of business in which plaintiff company was engaged in the State of Illinois, except that in answer to a question asked by counsel as to what was done with the lumber purchased in this State, witness Humphreys said, “At the end of the month it was in Cairo in boxes.”

The evidence shows that the plaintiff did not comply with the statutes of this State in relation to foreign corporations, or receive a certificate from the Secretary of State authorizing it to do business in this State, until September 17, 1900, or about a month before this action was begun; also that a prior action to obtain the same relief was instituted by plaintiff' against the defendant on June 16, 1900, and was dismissed by plaintiff’s attorney when he found that it had not yet filed with the Secretary of State a certified copy of its articles of incorporation or of the certificate given it by the State of Illinois.

Since this cause has been pending in this court the question as to whether or not a contract entered into in this State by a foreign corporation doing business for profit in this State, without having complied with sections 1024 and 1025, Revised Statutes 1899, is a valid contract and can be enforced in the courts of this State, underwent full and exhaustive discussion, as well also all the decisions of the appellate courts of this State, including the decision in this case as reported in 101 Mo. App. 569, in the case of Tri-State Amusement Company v. Forest Park Highlands Amusement Company, 192 Mo. 404, and it was held that such contracts are void and non-enforceable. That case is decisive of the case at bar, and being in harmony with the case of Ehrhardt v. Robertson Bros., 78 Mo. App. 404, and in conflict with the opinion of the Court of Appeals in this case, the latter will be overruled. It follows that the circuit court erred in refusing, at the close of all the evidence, to declare the law to be as indicated by defendant in the instruction asked in the nature of a demurrer to the evidence.

The judgment of the Court of Appeals is overruled and the judgment of the trial court is reversed.

All concur.