245 Mo. 337 | Mo. | 1912
Lead Opinion
OPINION.
— I. It is insisted by respondents, that the order of approval of the bill of exceptions which was made in vacation was not then signed by the trial judge, and that this omission is fatal to the consideration of said bill on appeal. It appeals, however, from a supplemental abstract filed by appellants, a certificate . of the clerk, and also the certificate of the trial judge, that an order approving the bill of exceptions was made by the trial judge on the 15th of September, 1908, and was entered in the vacation docket on that .date, and a recital thereof on, the same day was entered on the judgment roll, and that the omission of the trial judge to affix his name to this order at the time he made it was supplied by his subsequent signature affixed on the 3d of April, 1912. ' This nunc pro tunc entry cured the imperfection. [R. S. 1909, Secs. 2119, 2120; Cooley v. Railroad, 149 Mo. 487.] The record proper shows the entry of an order permitting the filing of the bill of exceptions in this case in vacation and prior to the 4th of October, 1908. It was approved and endorsed by counsel for respondent, and submitted to the trial judge to be signed, approved and ordered to be made a part of the record within the currency of time previously allowed appellants. The only irregularity that occurred was his omission to affix his signature to a proper order of approval and directing the record of the bill of exceptions made by him. This having been properly rectified, the bill of exceptions was filed in substantial compliance with the statute. [R. S. 1909, Sec. 2029.] And we overrule the contention of respondent on this point.
Our conclusion is, that the failure of the exposition company to turn over to its lessors the free and peaceable possession of every part of their land on the 30th of Jnne, 1905, was a breach of its covenant so to do, and that the trial court erred in its ruling to the contrary.
III. The important question in this case is the extent to which plaintiffs should recover for breach of the contract to surrender the premises. By the terms of the lease, the damages stipulated therein are “a rental of sixty-six dollars for each and everyday that the said lessee fails to deliver said lands or any part thereof.” Was this snm a penalty or a proper
In the case before us the subject-matter of the lease was termed ‘ ‘ acre land. ’ ’ It contained°no houses or buildings, and had no rental value for such purposes. It could only have been, rented for farming or tillable, purposes. The productive or income value thus arising was a matter of definite and easy ascertainment. With no buildings or improvements on it,
In the case at bar the lessee had no intention to retain possession and used every effort, except force or legal process, to remove the party whom it had let into possession of the property. Moreover, the future possession of this vacant land could have been of no possible advantage or benefit to the lessee,, since the purpose for which it had been rented ceased to exist after the close of the fair.
For the foregoing reasons, the judgment is reversed and the cause remanded.
— The foregoing opinion of Bond, C., is adopted as the opinion of the court.
Concurrence Opinion
CONCURRING OPINION.
— I concur in paragraph one of the opinion filed herein, by our learned Commissioner Bond ; but Udissent as to the second paragraph thereof, for the reason that the lease fixing the amount of the rental to be paid for holding possession of the premises after the expiration of the lease, is exactly
Such a contract being in harmony with both the letter and spirit of the law, I am unable to see how it can violate the law of contracts', or the spirit of public policy, which is expressed through the legislative department of the government.