76 Mo. App. 610 | Mo. Ct. App. | 1898
Lead Opinion
Plaintiff filed the following petition before a justice:
“Plaintiff for his cause of action states that the defendant is indebted to him in the- sum of $50 for rent due for premises fronting 20 feet on east side of Vandeventer Ave., by a depth eastwardly of 340 feet, more or less, between Washington Ave. and Olive street in the city of St. Louis, as per bill herewith, for which sum plaintiff prays judgment.”
Attached to which complaint was the following account:
“Missouri Electric Light & Power Co.,
“To Bernard C. Edmunds, Dr.
“For ten months rent of premises 20 feet front on the east side of Vandeventer avenue, by a depth eastwardly of 340 feet, more or less, between Washington avenue and Olive street, in the City of St. Louis, at $5 a month, $50.”
Plaintiff had judgment in the justice court, from which an appeal was taken to the circuit court of the
“That on the fifth day of February, 1896, one H. L. Edmunds and the defendant entered into the following contract of letting (here the court copied in full the said contract of February 5, 1896).”
“That defendant paid said Edmunds the stipulated sum of $5 per month up to and including June 30, 1896, four payments in all. That about June 6, said Edmunds notified defendant in writing to remove its said poles and wires from said land, as provided in said contract, which it failed to do. On or just prior to July 1, 1896, H. L. Edmunds conveyed said land to plaintiff, and defendant recognized him as grantee and. paid him the next monthly payment of $5, which was for the month ending July 30th, 1896.”
Fta?tsNG °f “That on or about the sixth day of July, 1896, plaintiff, as grantee aforesaid, notified defendant to remove its poles and wires from said land within thirty days, which it failed and refused to do, and on or about August 10, 1896, he threatened to forcibly remove them, whereupon defendant instituted suit in the circuit court, city of St. Louis, to restrain and enjoin plaintiff from carrying out his threat. That after the institution of said suit the parties on August 17, 1896, entered into the following stipulation, viz:”
“No. 4467, October Term, 1896, Room 1.
“Missouri Electric Light & Power Company vs. “B. C. Edmunds. Stipulation, August 17, 1896.
“It is hereby stipulated that the above entitled suit may be dismissed at plaintiff’s costs, and that defendant will permit plaintiff to remove its wires and*617 poles "within four days from this date, and as full compensation for use of ground from February 5, 1896, to date, plaintiff to pay defendant $50, and defendant to waive all damages by reason of injunction.
“(Signed) W. H. Thompson,
“Attorney for Plaintiff.
“(Signed) Jesse A. McDonald,
“Attorney for Defendant.
“That in pursuance of said stipulation defendant paid plaintiff the said sum of $50 on August 18, 1896, and defendant also paid all court costs in said cause.” “And thereafter defendant removed said three poles about six inches north of the north line of said land, but left the seven arms on said poles projecting southward over plaintiff’s land about four to five feet, on which arms are carried fourteen wires and there are two or more wires carried angling across said land from these poles to the south side of same. That about June 20, 1897, plaintiff made demand on defendant for the rent sued for, being for ten months, beginning August 1, 1896, and ending June 1, 1897, amounting to $50 which defendant refused to pay.”
“Plaintiff claimed that defendant has never surrendered possession of the premises in that its poles and wires are still occupying a portion of the same; that it has failed to remove them according to agreement of August 17, 1896, and is therefore still liable for said monthly payment of $5 per month, and the court finds that defendant has not removed its poles and toires from said land in accordance with said stipulation of date August 17, 1896. But that at the date of filing this suit defendant was still occupying said premises with its said wires and arms upon said poles and the court holds as a matter of law that under the facts found as above, the defendant is liable to plaintiff for said sum of $5 per month for rent of said premises,*618 under the terms of said contract of letting of date February 5, 1896, from said seventeenth day of August, 1896, to June 1, 1897, leaving 9 12-30 months and amounting to $47, upon which plaintiff, is entitled to interest at the rate six per cent from June 24,1897 (the date on which this suit was filed) to the present date, making the sum of $49.05, for which plaintiff is entitled to judgment with his costs.
“This April 5, 1898.
“D. D. Fishek, Judge.”
The court rendered a verdict for plaintiff in the sum of $49.05, from which defendant appealed to this court.
Finding no reversible error in the judgment, it is affirmed.
Dissenting Opinion
DISSENTING OPINION BY JUDGE BIGGS.
The appellant was only a licensee. Boone v. Stover, 66 Mo. loc. cit. 434; 1 Washburn, Real Property, chap. 12, sec. 2, p. 661; Cook v. Stearns, 11 Mass. 533. After the final revocation of the license which was accompanied by the agreement of the parties in the injunction suit, the continued use of the premises by the appellant, if it did use them, constituted it a wrongdoer or trespasser. Lunsford v. LaMotte Lead Company, 54 Mo. 426; Lockwood v. Lunsford, 56 Mo. 68.
Rehearing
OPINION OF JUDGE BIGGS ON MOTION FOB, BEHEABING.
I think that the motion for rehearing in this case ought to be granted on the ground that the court erred in refusing the instruction asked by the defendant, that under the law and evidence the judgment could only be for a nominal sum.
Rehearing
OPINION ON MOTION POE EEHEAEING.
When the motion for rehearing in this case was overruled by the majority of the court, it did not file any opinion as is the custom when such motions present nothing new or are otherwise without merit. One of the judges, however, filed his individual opinion in favor of sustaining the motion. His opinion in referring to the opinion of the majority of the court upon the disposition of the appeal in this case, charges an omission to set out all the contract sued on, because it did not notice the fact that a private seal was attached to the instrument. In referring to .such omission his opinion uses the following language: “The contract is not set out in full, and the opinion fails to state the material fact that it was executed under seal. Under all of the authorities a sealed instrument is a deed, whether it be a conveyance of land or a bond or a contract of any kind between the parties. This principle is so elementary that it is useless to cite authorities. It is only necessary to consult the law dictionaries.” Volume 1, number 16, page 591, Missouri Appeal Reporter.
This act became the law of the state February 21, 1893, or about three years prior to the execution .of the contract construed in the majority opinion. Under its provisions we were wholly unable to perceive the bearing of the private seal on the “ Character” or “ Construction” to be applied to the contract under review.