Cameron v. McNair & Harris Real Estate Co.
1898 Mo. App. LEXIS 196
Mo. Ct. App.
1898
Check Treatment
Biggs, J.

The plaintiff, who lives in the state of Illinois, is the owner‘of certain flats in the city of St. Louis. In 1895 the defendant was plaintiff’s agent in St. Louis and attended to the leasing of the property and the collection of rents. Whether the scope of its employment extended to the care of the houses while vacant, was the chief contention at the trial. The houses were heated by a hot water system, consisting of a furnace and boiler in the basement, from which the hot water was carried in pipes to radiators located in different rooms. In December, 1895, the flats were unoccupied and the water was allowed to remain in the pipes. During a cold spell of weather the water froze, causing about one half the pipes and radiators *370to burst. It cost the plaintiff $286.08 to have the apparatus repaired. In the present action he sues to recover from the defendant as damages the amount paid, upon the ground that it was the duty of the defendant to see to it that the water was drained from the pipes and that it failed to do so, thereby causing the injury. The defendant denied liability. There was a trial before a jury, resulting in a verdict and judgment for plaintiff for $316.30. On this appeal the defendant assigns for error the action of the court in admitting irrelevant testimony offered by plaintiff; in giving erroneous instructions asked by plaintiff, and. refusing proper instructions asked by the defendant.

*371custom Presumption. *370The plaintiff resides in the state of Illinois. He purchased the property in 1891 or 1892. The defendant acted as his agent in making the purchase. After-wards and up to March, 1896, the defendant secured tenants for the premises, collected and remitted the rents to the plaintiff, and made repairs. Concerning the latter employment the plaintiff testified as follows: “I went down to their (defendants’) office, and I asked them (meaning the officers of defendant) what their rates were to take care of property, and they told me three per cent on the collections, and I told them to go ahead. That was all there was to it.” The witness further testified that during the time the defendant was acting as his agent, he visited the property in company with Mr. Harris, an officer of the defendant; that he found the heating apparatus out of repair for want of proper attention; that he called the attention of Harris to its condition and that he replied “that he would have the matter attended to at once.” Against the objection of the defendant, the circuit court permitted the plaintiff to prove by three real estate agents in St. Louis, that it was the custom or usage of real estate *371agents having in charge property for collection of rents, to look after the property while vacant, that is fasten the doors and windows, and see that the heating apparatus was in proper condition. This is the testimony to which the defendant objected. This evidence was admissible to explain the meaning of the parties, that is the intended scope of the agency. The defendant was employed “to take care of the prqperty.” This is the language of the plaintiff in speaking of the terms of the contract. The officers of the defendant did not deny this. The plaintiff contends that the employment included not only the leasing of the property, but its care, should it become vacant. As to the latter the contract is ambiguous. When the meaning either of a written or parol contract is uncertain, evidence of usage or custom is admissible to explain it. Kimball v. Brawner, 47 Mo. 398; Evans v. West. Brass Mfg. Co., 118 Mo. 548. The evidence adduced as to the alleged custom was sufficient as tending to prove that the * usage was general, and if general, the law raises the presumption that the defendant who is sought to be charged knew of it and contracted in reference to it.

The discussion in the foregoing paragraph disposes of the objection made to the plaintiff’s second instruction. That instruction is based on the evidence of the alleged custom or usage of real estate agents, and it is insisted that the evidence was insufficient to prove any such custom.

As to the measure of damages the court instructed as follows: “The. court instructs the jury that if they find for the plaintiff their verdict shall be for such a sum as they find plaintiff’s damage to have been, not to exceed $286.08 — together with interest thereon at *372the rate of six per cent per annum from April, 1896, the date of commencement of this suit.” The objection to this instruction is that it did not limit the damage to the special matter charged in the petition. As the verdict was for $286.08 (the amount paid by plaintiff for repairs), with interest added in accordance with the instruction, it is plain that the defendant was not prejudiced by the alleged omission. The objection to the instruction is purely technical, and ought to be overruled.

With the concurrence of the other judges, the-judgment will be affirmed. It is so ordered.