*1 $4,000 agreement notes constituted one upon founded considera- tion, delivery viz.: the of the deed from Burk Lee placing in possession of Lee of the real estate However, therein described. $4,000 from Oldham note and wife to Lee bears the indorsement Walton, $15,000 whereas the Company note to the Walton Trust not indorsed Walton. Under attending the circumstances delivery Burk, liability two notes to of Walton was $4,000 that of an indorser note R. S. [Sec. existed on Ann., p. obligation Mo. Stat. and no 685], discharge $15,000 alleged Walton prior agree- note. The oral ment writing between Burk and Walton was reduced to subse- quent $4,000 indorsement of note Walton delivery and its effectively incorporated Burk as as if subsequently in a executed separate pay- document between providing Burk Walton $4,000 indorser, ment Walton of the note as an men- Having $15,000 agreement tion note. their thus oral reduced writing, any allegations mistake, fraud, absent accident evi- or prior agreement competent change dence aliunde aof oral was not impose upon the contract as written so as to Walton the additional discharging $15,000 obligation of note. unnecessary case, pass it is view the questions respective counsel for the parties made and discussed their able and exhaustive briefs. Cooley court should be and affirmed. trial GG., Westhues, concur. foregoing opinion by Bohling, adopted C., PER CURIAM:—The judges All the the court. concur. opinion of as the Refining Company. Joseph v. Chappee, Appellant, J. (2d) 1034. September 3, 1935.* Two,
Division Term, 1935, July Opinion motion *NOTE: filed at 1935: Term, September rehearing filed; September motion overruled *2 appellant. Becker for Mey.er Wm. J. Vernon W. Logan respondent. & L. Boos for
Cobbs and Walter *3 WESTHUES, suit, asking sum of a the C. This is alleged brought $29,000, respondent for an appellant wrongfully appellant breach of evicted contract in that filling appellant under from a station had of respondent. court, plaintiff’s close of trial at the contract ease, in the sum instructed the return verdict for to any evidence. Respondent not From of one dollar. did offer ' appealed. entered \ ^appellant granted question, appellant terms of the' contract right operate filling respondent’s, located at South- to of station Louis, city for a term end- west and Columbia avenues in the of St. premises Feb- ing Appellant 1934. May took of By agreed to ruary 1, of this contract the terms $40 It was premises. pay respondent per month use gasoline agreed purchase apnellant to further gaso- gallon selling per price of retail "at under 2.3^ Missouri, city Louis, at the time of de- St. posted in line as of usually merchandise, same,” sold livery articles of of ;at' filling stations, regular agreed prices. wholesale It was further , as follows: .. agrees party part of purchase party “The the second from part pay dispose first a minimum of six thou- and' of (6000) sand gasoline (120) twenty of hundred and gallons of each month during period motor oils of this contract. party buy Failure of part of second and pay for mini- said gallonage mum during of. oils one month from .the date of this contract shall constitute a of this forfeiture part, unless such forfeiture party is waived first and. in may days’ event this contract terminated on written notice be party part party from first part of the second as herein- . . before set out.” just The part quoted follows: referred to in the last line read as “ . . except party . part should the second violate provisions premises, lease said of this contract or of the taking given party part privilege back the first building equipment premises, giv- and all first described herein ing (10) days’ party the second ten written notice party premises, build- part’s of the first intention to take back said .ing equipment party of-.the on account of breach of contract part’s part, party second notice of the second to mailed City Louis, last known address in the of St. State of Missouri.” disposition immaterial for a provisions Other contract are will, therefore, Appellant be noticed. remained case not filling day of until the first operated station morning May, 1926. As what occurred testified: *4 A.
“Q. you there after that? Why didn’t remain Because filling morning May got sight of 1st, when I in the station the on of. I gasoline. When somebody serving somebody’s I automobile seen Mr.- Mr. Goller and Mr. and got I saw Sneed premises inside of the I found Kelly, after- stranger, McCaw, name was Mr. out and a whose I had Mr. Sneed place, the the same Mr. was inside wards. Sneed Goller, I Mr. I think he was Attorney, in the office. House met McCaw was the Station think, Secretary Treasurer, Mr. was and you the hell are Sneed, Mr. Manager I ‘What at that time. posses- taken said, ‘Chappee, we have trying do,’ he fellows and you ‘The longer here,’ said, I hell and needed You are sion. my picked overcoat, quick.’ hung up I get say. Get out and out it, the walking said, ‘There’s gas out with up piece pipe and man for dis- ‘Officer, arrest quick,’ said, he door, get and out was gas pipe.’ threatening with a me turbing my peace .That there, me.” arrested was first knew an officer he the I agents filling station to the went respondent’s was admitted It four-thirty m., the locks and took 1, 1926, sawed about a. ap- permitted trial court the station. possession of retained of'damages question on the evidence pellant to introduce operation of the station. earnings from the received amount .reversed and judgment should be Appellant contends that giving in an in- erred trial court because the cause remanded him the sum verdict for directing jury return a struction urged was entitled to substantial dollar. It is that one damages amount of damages and that that under hand, position jury. Respondent, takes sustained court should have pleadings and the evidence the trial requested by respond- case, as appellant’s the close of a demurrer at therefore, any court error, if was committed ent; that, only dollar, was'harmless. directing to assess evidence, all the plaintiff, if a under It is well-settled law that adversary, his then errors not entitled to verdict theory harmless appearing the instructions are rendered giving plaintiff of er by. that a who has no case cannot be hurt Mining Sphalerite Co., roneous instructions. [Trainer 70, l. c. Barr v. Mo. Pac. 1913C, Ann. Cas.
Ry. Co., (2d) 37 W. S. l. c. 929(1).] ; respondent’s reached We that contention must have conclusion sustained; appellant’s petition that is, under all the evidence and damages. pe- Appellant,' he was not entitled to actual tition, damages alleged asked for actual to have been sustained earnings through deprived loss of future of which he was re- spondent’s wrongful Respondent takes the breach of the that that position breached contract and was notified May 1, 1926; contract had been terminated as of filling under the had the take station after by appellant. Appel- the contract been breached petition lant performed admitted that he had not his contract. following allegation petition: Note
“Plaintiff paid further states rent and made all all the payments to be him under the said lease and contract up May 1st, 1926, fully complied pro- with the terms and visions of said contract, except provision requiring lease and gallons to sell Lubricating per month, Oil provision was waived defend- ant, April 29, cheek in mailed to defendant his 00) ($40 Forty for the sum of Dollars for the of said rent May, 1926, for the month but the defendant refused *5 accept May through 1, 1926, attorney, Edw. R. same on its Sneed, Esq., they, defendant, with the statement that had taken 1st, premises day, May 1926, of the said and that said on the anything did them not owe further.” signed
Appellant having respondent denied the contract which 796 ad- He in evidence. offered at the trial produced containing substantial- signed a contract however, he mitted, that had testimony: above. Note noted ly provisions with dictating Sneed I Mr. that heard “The contract gallons of lub- 120 gasoline and gallons of selling 6000 reference to of the agreed, party ‘it therefore ricating per month oil mini- part, first party of agrees purchase of part
second gallons Lubrite gas gallons mum ” waived.’ month, lubricating unless otherwise oil each required testimony bought sold the he appellant’s own he months fifteen month of gasoline during only one amount occupied station. waiver, by requiring As provision bought to be per and sold month the record
as briefed, silent as a tomb. appel This was not nor has pointed require lant out in respondent what manner waived appellant ment. .facts which point The could to indicate he, waiver were appellant, that from month had breached contract respondent to month and had exercise the to take a failed to action, standing forfeiture. alone, respondent Such prove respondent was not sufficient permanently that waived requirement the contract. evidence discloses that February, writing ap appellant warned that pellant complying Appellant was not with the terms April contract, was notified it that had breached that terminated, premises had been May 1, and that he was to vacate the Appellant having admitted received the communica impression Respondent may tions. have labored under that up would in of time build a trade sufficient the course comply and, therefore, temporarily with the terms of the contract provision. waived But record contains fact from which respondent permanently it can inferred that waived such Becker, (2d) 100, ex 77 S. W. l. c. provision. State rel. v. quoted approval we from Schwab v. Brother (3-6), Yeomen, c. 692: hood American 305 Mo. l. “ relinquishment right. ‘A waiver is an a known To intentional legal right, implied out a case of there must be a make waiver of clear, unequivocal, pur- such party act of the and decisive amounting also, 27 part.” an pose, estoppel or acts on his [See, p.L., R. C. having notice, pro Since admitted received contract, had been terminated for in the contract vided by respondent on would be taken over sufficiency Appellant of the notice. 1, we need not discuss the which authorized re having provision breached take and to spondent to terminate contract
797 legally possession. not thereafter entitled premises, Ap- was to pellant’s premises, by eviction from the in circum- these give right damages stances did not such as he seek'sto case, anticipated earnings in is, recover loss of under the holding following so are a well-beaten path we marked by directly point. Wamsganz in prior decisions The case of v. Wolff, App. 205, damages 86 Mo. deals with the of. actual by in eviction a ease an force. In that case defendant was gained by entitled to .possession and was and violence. force The court the áetion of in direct viola- held that the defendant was entry tion of the forcible and detainer State. The statutes of this however, only court, held that dam- was entitled to nominal ages. Note page opinion: 214 Wamsganz
“Appellants contend that as was not the tenant of against her, wrongfully Wolff was as Mrs. and in she being possession, owner entitled to use whatever committing a necessary, peace, force was short of breach of the possess premises, peace herself her as no was and breach by done, entry wrong committed forcible and detainer,'; ought This in contention is not ac- not recover. entry with supra, prohibits Section the forcible cord by by legal lands, process), detention of the owner or (except etc. 52 Sturgeon, 404; Fee, Dilworth v. v. 59 Mo. one else. [Emerson Sapp, Respondent’s possession, v. App.
Mo. Sutton Mo. though wrongful, protection was peaceable and was under the only by rightfully due course law, and he could disturbed however, by eviction the owner damages, of law. His for forcible nominal, jury and the possession, the immediate were entitled to assessed $350 actual were so instructed. wrongful taking given and con- on account
we assume were with the personal property taken version of the ours.) appellants.” (Italics Levy App. McClintock, case Thé quote approval point in and we desire to directly App.: 595 and 596 of Mo. pages
following found argued party, in court each as the case is briefed “But it; being between question of the contention them fact is-no there involving rights legal of a tenant questions brought down consent, dispossessed who holding against his landlord’s' over though entry premises; into the will the landlord’s against his taking not offer violence to possession defendant did property. destroy nor did plaintiff, days early England when the owner in the time was a “There legal right, forcibly dispossess one could over, remedy. holding latter was without instance, a tenant unseemly breaches conflicts law led state This both peace unlawful parliament it was made so that act criminally into civilly the law owner thus to take owner, entry rightful By own hands. these forcible acts it set to though entitled restore *7 possession, rights entry seeking and de in a manner. These forcible lawful form, enacted, quite in most of tainer statutes found similar are country. they found in the States in this State are 2151.,' in view So statutes 3319-3357 and Section Sections statutes, held that prior it was of the common law as it stood to such remedy had none after as the tenant no to the statutes he prior broadly they gave. stated that their enactment It was save such as against person who remedy ‘at law there was no civil common 7 Term. forcibly, right.’ Castor, having entered v. [Taunton Krevet v. cases Supreme And so the law the our Court states Dean, It is so stated Meyer, Mo. and Fuhr v. country. arising England in this great in a number of cases 202; Stansbury, Wend. Wood, v. Jackson v. Johns. [Hyatt ” Allin, 2 Dana, Yeates 134.] (cid:127) because judgment A was reversed in that case gained that defendant was entitled reviewing against cases peaceably, plaintiff. After but the will of many the court announced from this and other states rule law: violence and there we conclude that where “So property the landlord of the tenant’s
no unlawful destruction remedy except under the statute entry, in his the former is dis- entry Under that statute tenant forcible detainér. will, may of facts find redress possessed guare an action clausum sustaining far fall short which would fregit petition, the admitted facts appellant’s that under
It follows appellant was not entitled applicable law thereto ease, and the is, therefore, affirmed. any damages. recovery to Cooley <7(7.,concur. Bohling, opinion C., foregoing by Westhues, PER CURIAM:—The judges All opinion concur. of the court. adopted