146 Mo. App. 1 | Mo. Ct. App. | 1909
(after stating the facts). — ■ Counsel have made twenty-three assignments of error, which assignments they have discussed under twenty-four distinct heads. Grouping these, they may be said to cover eleven propositions. The first covers the refusal
We shall not undertake to follow all of these propositions in detail; in fairness to counsel for the defendant, who have zealously and ably compiled authorities and argued out the propositions which they rely upon, we give them the benefit of placing on record the positions which they have advanced and on which they found their claim for a reversal of the judgment of the circuit court in this case.
The first point of contention, and one very strenously argued, is that this court, in the decision of this case when last before it, that decision reported under the same title of B. Roth Tool Co. v. Champ Spring Co., in 122 Mo. App. 603, has gone contrary to the decision of the Supreme Court in the case of Sidway v. Land & Live Stock Co., 197 Mo. 359, it being claimed that the Sidway decision had not then been promulgated. It is further claimed that the decision of the Supreme Court in the Sidway case overrules Mnnford
Notwithstanding the very able and exhaustive brief and argument of the learned and industrious counsel for the defendant as to the character of the lease, whether it is a monthly tenancy or one at will or for years or as to its assignability, and as to whether the plaintiff is entitled to sue on the covenants thereof, that is as to whether, lacking a written assignment, plaintiff is entitled to an action for the breach of any of the covenants in the lease, while recognizing the profound learning displayed by those counsel, we are compelled to hold that all of their argument on these matters is futile in this case. This is so for the very sufficient reason that, in our view of the law and on careful consideration of the decision of this court in the case of B. Roth Tool Company v. Champ Spring Co., 93 Mo.
Referring to the text-writers, one of the most universally accepted of them, Black, in his work on the law of judgments (2 Ed.), p. 764, sec. 504, states that there are two main rules which govern the subject of estoppel by judgment which may be deduced from the general result of all the authorities. The first is, that “A point which was actually and directly in issue in a former suit, and was there judicially passed upon and determined by a domestic court of competent jurisdiction, cannot be again drawn in question in any future action between the same parties or their privies, whether the
In the case of Beloit v. Morgan, 7 Wall. (U. S.) 619, Mr. Justice Swayne (1. c. 622), after referring to» the fact that the court in the case under consideration had full jurisdiction of the parties and the subject, says: “Under such circumstances, a judgment is conclusive, not only as to the res of that case, but as to all further litigation between the same parties touching the same-subject-matter, though the res itself may be different.”
Our own Supreme Court, in Chouteau v. Gibson, 76 Mo. 38, in a very thorough examination and discussion of the question of res judicata, quotes with, approval at page 47, Cooley on Constitutional Limitations, 47, that “A proposition assumed or decided by the court to be true, and which must be so assumed or decided in order to establish another proposition which expresses the conclusion of the court, is as effectually passed upon and settled in that court as the very matter directly decided.” At'page 49, Judge Norton, who delivered the opinion Of our Supreme Court, in the Chouteau v. Gibson case, says: “In passing upon the plea of res judicata the question is not whether the court decided the point involved right or wrong, but the question is, did it decide, and is the decision final?” Further along in the same opinion, in distinguishing the doctrine of stare decisis and res judicata, and referring to instances in which the court had overruled propositions in one case that had been decided in another, Judge Norton says (1. c. 51) : “But while this may be, and is often done, the right of a,party to reagitate and sue again upon the same cause of action adjudged in a case subsequently overruled in another case between other parties or the same parties upon another cause of action, is concluded and forever gone.” Further along on the same page, Judge Norton, speaking for the Supreme Court and quoting Bigelow on Estoppel, says: “It
The law as announced on this subject in the case-of Chouteau v, Gibson, supra, has never been disturbed or questioned by our Supreme Court, as see Exposition Driving Park v. Kansas City, 174 Mo. 425; its last affirmance being in the case of Reynolds v. Hood, 209 Mo. 611, 1. c. 620. The Kansas City Court of Appeals,, in a discussion of the doctrine, in the case of Pond v. Huling, 125 Mo. App. 474, commencing at page 480, has-followed the ruling there announced, collecting in addition to Chouteau v. Gibson, supra, many cases in support of it.
These authorities are conclusive on the proposition that the character of this lease and the term created by it and the right of the plaintiff in this case to stand, upon the terms and covenants and conditions therein contained has been finally and forever settled as between these parties and their privies, and that plaintiff has a right of action for violation of the covenant to furnish steam power is also settled. Apart from the doctrine of' res judicata, and its application to this case, a careful' and laborious scrutiny of the opinion of this court, as reported in 93 Mo. App. 530, satisfies us that that opinion is right in law and on the facts.
This leaves only three question to he disposed of which are not covered by the former decision of this court. The first relates to the refusal of a reference, the second relates to alleged errors at the trial in the admission and exclusion of testimony and the action of the trial judge, and the third, speaking generally and comprehensively, relates to the measure and award of damages. Taking these up in their order, it is to he observed that it has been many times decided by our courts, that in our State, reference is a matter of purely statutory right, and unless the case in which it is asked
We have gone over with very great care the whole of the printed abstract in this case, covering 203 pages, of which all but about thirty-seven is devoted entirely to the testimony in the case, the remaining pages being taken up with the record proper and with the term bills of exception, relating to settling the pleadings, and with the instructions, motions for new trial, etc., and while it shows that the case was a hotly contested one, the trial
Concerning the admission of evidence, the principal and most strenuous objection made was to admitting in evidence the schedule or synopsis of the book entries," showing receipts and expenditures of the defendant company. This statement was prepared by the witness who testified from it; the books, from which he swore that he had prepared it, were identified as the books of account of the plaintiff company; they were produced in court, although not offered in evidence, or, to be more accurate, offered in evidence and then on the suggestion of the court that that would involve putting them in the transcript, withdrawn from evidence, the court suggesting that such parts of them as parties desired might be put in evidence, but neither party availing themselves of this offer, the witness, with the schedule or synopsis in his hand, which he had himself prepared, was permitted to read from that a statement of the account as shown by these books. This was the only practicable way of handling this matter, short of introducing page after page of the books themselves, by which the testimony could be presented either to the jury or to this court on appeal. We do not understand that the correctness of the schedule is challenged, the first point of the challenge appearing to be that defendant’s counsel had no time to examine and compare it with the books. We do not discover, in going over the evidence, that they made any such demand. The objection also goes to this schedule as an incompetent and improper mode of proving accounts. This objection was overruled and the schedule introduced in evidence, after having been verified by the witness who had himself prepared it.
The third proposition as to the measure of damages is divisible into several heads. The first proposition and the one at the root of the right to damages and the measure of damages is raised on the following words in the lease: “In the event of the party of the first part from any cause whatever failing to furnish power or steam to operate the plant of the party of the second part during the hours herein mentioned, they agree to allow them for the same.” It ■ is argued by counsel for defendant that the defendant met the obligation of this provision when it offered to deduct from or allow to plaintiff the rent for the time during which the steam or power was shut off, that amount, it appearing, being $72.50. The position taken by defendant’s counsel assumes that it was with defendant to determine what was to be allowed for failure to furnish power or steam. We cannot agree to this. No language of the lease places that within the sole power of the defendant. This is not a case of assessed damages, provided for by the lease. Nor can it be said that the covenant to furnish the power was not a real covenant, running with the property. This was decided in the case in 93 Mo. App., at p. 542, it being held there that