148 Mo. 96 | Mo. | 1899
The material allegations of the petition are these: Plaintiff is a builder and contractor; defendant was during tbe year 1895 tbe-owner, of the following described real estate in tbe city of St. Louis: “in City block No. 520 of said city and State, and lying on tbe north line of
The answer is a general denial.
The evidence introduced by plaintiff in support of these allegations was that defendant executed a ninety-nine year lease on the premises toWhistler at a yearly rental of $12,000, the lessee agreeing to erect two buildings, to cost not less than $75,000, according to plans to be aproved by defendant; that defendant agreed to pay McBride $25,000 as commissions for effecting the lease, when the buildings were completed; that defendant gave Whistler a receipt for the first year’s rent, and also a receipt and agreement, which Whistler’s attorney had prepared, in the folowing form:
“I, Tames Campbell, of the city of St. Louis, in the State of Missouri, hereby certify and acknowledge that Ensley O. Whistler, of the same place, has this day deposited with me the sum of twenty-five thousand dollars in lawful money of the United States of America for the following purposes, to wit:
“Whereas, by an indenture of lease, dated this first day of June, 1895, I did demise and lease unto the said Ensley O. Whistler for the term of ninety-nine years from and after the first day of June, 1895, upon the terms and conditions therein mentioned and recited, the following described premises situated in the city of St. Louis, in the State of Missouri, to wit:
“And Whereas, as one of the covenants and conditions of said lease, it is provided that the said Ensley O. Whistler shall erect upon said premises two substantial brick buildings, one at least five stories and basement in height, and one at least three stories in height, to cost together not less than seventy-five thousand dollars, and shall have said buildings completed and ready for occupancy on or before the first day of January, 1896, and free from mechanics’, laborers’, mate-rialmen’s and all other liens for work and labor done upon, and material furnished to, said buildings.
*103 “And, "Whereas, said deposit of said sum of twenty-five thousand dollars has so been made with me by said Ensley O. Whistler for the purpose of assuring and guaranteeing to me, my heirs and assigns, the faithful performance and fulfillment by the said Ensley O. Whistler, his heirs or assigns, of the aforesaid covenant and condition.
• “Now, Therefore, if the said Ensley 0. Whistler, his heirs, or assigns, shall, on or before the first day of January, 1896 (strikes and unavoidable accidents excepted), have erected on the hereinbefore described premises two buildings as hereinbefore mentioned and referred to, and in accordance with plans and specifications now approved by me, and shall, on or before said date (strikes and unavoidable accidents excepted), have said buildings completed and ready for occupancy; and when architect or architects of said buildings shall have certified that the reasonable cost of said buildings, when completed, is not less than seventy-five thousand dollars, and when proper vouchers of the contractors and all sub-contractors for work and labor done upon, and materials furnished to, said buildings, when completed, shall have been exhibited by the said Ensley O. Whistler, his heirs, executors, administrators or assigns, and when an architect, to be employed by me, shall be satisfied that said buildings have been erected and completed in accordance with the plans and specifications aforesaid, and that said buildings are free from mechanics’, laborers’, materialmen’s and all other liens for work and labor done upon, and furnished to, said "buildings, then and in the events aforesaid, I, or my heirs, executors, administrators or assigns, will, and I do hereby promise and agree to, repay said sum of twenty-five thousand dollars, in lawful money of the "United States of America to the said Ensley O. Whistler, or his heirs, executors, administrators or assigns, immediately upon demand made therefor by him or them,
“But in -the event of the non-performance and the non-fulfillment in any wise of the aforesaid covenant and condition by the said Ensley 0. Whistler, his heirs or assigns, as*104 Hereinbefore recited, and within the time hereinbefore in that behalf mentioned (strikes and nna-voidable accidents excepted), then said sum of twenty-five thousand dollars shall belong to me as my absolute property, and as liquidated damages, and not as a penalty or in the nature thereof, for such non-performance and non-fulfillment of said covenant and condition.
“It being distinctly understood and agreed that neither said sum of twenty-five thousand dollars, nor any part of it, is to be used by me in completing said buildings, or either of them, and that no contractor, laborer, or materialmen, or any person or party, shall have any right to, or claim upon, said sum of twenty-five thousand dollars or any part of it for any reason or for any purpose whatever.
“Witness my hand to duplicate and originals hereof at the city of St. Louis, State of Missouri, this first day of June, A. D. 1895
James Campbell, by
“Witness: W. F. Reed,
W. S. Corcoran. His attorney in fact.
I consent to all of the foregoing.
Witness: Ensley O. Whistler.
Montague Lyon.”
The last paragraph of the document, being the part italicized, was added by defendant’s attorney, Judge Madill, before it was signed.
After Whistler got the lease and receipts, he and McBride, the architect and the plaintiff met at the architect’s office and they were read aloud, and plaintiff also read them; but before plaintiff signed the building contract he and Mr. Ferguson, the president of the Mechanic’s Bank, went to defendant’s office and saw his agent and plaintiff told him he was about to sign the building contract, but wanted to know if the $25,000 was actually deposited, and defendant’s agent said it was, and then plaintiff entered into the-building contract and began work under it, but after the work had progressed a few days the architect had a survey made of the land
“ ‘Now comes the above-named plaintiff and moves the court to set aside the nonsuit entered in this cause, and to grant plaintiff a new trial for the reasons following:
, “ ‘1st. The court erred in its declaration of law made at the request of the defendant.
“ ‘2d. Recause the evidence by the plaintiff sustained the issue on plaintiff’s part to be sustained.
“ ‘3d. Recause upon the pleadings and the evidence a good cause of action was stated and proved against the defendant.’
“Which said motion the court on the-day of-, 1896, overruled, to which ruling and order of the court the plaintiff then and there excepted at the time. He therefore prays the court to allow and sign this bill of exceptions, and that the same may be signed and sealed and made a part of the record, which is done this 15th day of August, 1896.” Plaintiff then appealed to this court.
I.
The gist of this case is that defendant leased certain land in the city of St. Louis to Whistler for ninety-nine years, at an annual rental of twelve thousand dollars, and gave him a receipt for the first year’s rent, upon the further agreement that Whistler should erect two buildings on the land, to cost seventy-five thousand dollars, and if Whistler did so before a specified date, and produced a certificate from the
It is difficult to comprehend upon what legal theory the plaintiff expected to recover in this action. It is designated in the brief to be an action of deceit, and in the petition it is charged that the issuance of the receipt and contract was intended by defendant to give Whistler a false and fictitious credit in the community, and that the statement or “assurance” of defendant’s agent that the twenty-five thousand dollars was actually deposited with defendant, “as a security or indemnity that the final payments on the construction should be paid to contractors and materialmen,” induced plaintiff to enter into the contract, and caused damage to him.
Plaintiff admits that he had read and understood both the receipt for the rent, and the agreement as to the twenty-five thousand dollars. He says he knew that he could never
It can make no possible difference to the plaintiff whether Whistler paid defendant twelve thousand dollars for the first year’s rent or not. Defendant owned the land and had a perfect legal right to lease it for any sum he could get for it, or to lease it for nothing or to forego any rent that he might have been entitled to under the lease. Such a transaction could not give Whistler any false or fictitious credit in the community. Receipts for money paid or for debts paid or discharged are convenient things to have, but they are not available assets upon which to hinge commercial credit, for under execution they would not sell for enough to satisfy a claim however small. This feature of the case may therefore be dismissed from further consideration, as it is self-evident that plaintiff was not either induced to enter into the contract or caused to lose anything, in consequence thereof.
The evidence introduced by the plaintiff wholly fails to establish the allegations of the petition that the twenty-five thousand dollars was deposited with defendant “as a security or indemnity that the final payments on the construction should be paid to contractors and material men.” On the contrary the agreement which plaintiff read and understood before signing the building contract expressly provided that it was not to be so used, and that no contractor should have any right to it or to any part of it, “for any reason or for any
The plaintiff therefore knew, or is charged in law with the knowledge, that Whistler never would become entitled to demand the twenty-five thousand dollars, for he knew that his contract with Whistler called for two buildings to cost only $65,685, which was $9,315 less than the value of the building Whistler contracted with defendant to erect, and hence that the architect, who was aware of plaintiff’s contract with Whistler, could not certify that the buildings cost reasonably $75,000. He also knew that under the terms of the contract Whistler could not compel defendant to pay the $25,000 until the buildings were completed and all paid for and free from mechanics’ liens. This would involve the expenditure of seventy-five thousand dollars by Whistler before he could demand anything from defendant. It requires more discernment than courts possess to see how these facts and conditions could give Whistler any real or false credit in the world. To an ordinary mind the fact that a man had already lost present dominion over thirty-seven thousand dollars would suggest the inquiry as to what else he had, what other means were in his power to meet other indebtedness, rather than to create the impression that if he had put up so much money in one place, that he must have great resources left.
If the plaintiff believed that he would be subrogated in equity to Whistler’s right to the $25,000 when the building was completed and all the conditions were complied with, as he would have been entitled, still the present dilemma suggested itself, where was Whistler to get the means or did he possess the means to place himself in a position where he would be entitled to demand the $25,000 from defendant?
The conclusion is irresistible that the allegations in the petition that the $25,000 was to be a security or indemnity
Tbe petition charges and tbe proofs show that tbe work was stopped by order of tbe architect, because tbe contemplated building would have been larger than tbe unimproved land. In one place in tbe petition it is set out that defendant owned 146 feet and 11 1-3 inches on tbe north side of Washington avenue, and in another it is stated that to erect a building such as tbe plans called for it would have been necessary to tear down “more than five feet of a building on adjoining premises occupied by an owner other than Campbell,” but tbe evidence does not disclose tbe size of tbe contemplated buildings, nor does it establish tbe averment that tbe five feet on which tbe adjoining building is located belongs to or is occupied by “an owner other than Campbell.” Moreover this action is not founded upon a contract of tbe defendant to furnish a particular sized lot and a breach of contract in this respect. This evidence is useful only as showing that tbe work was stopped for this alleged reason, and not because plaintiff bad been deceived into entering into tbe contract by tbe issuance of tbe receipt and contract or by tbe statements of defendant’s agent.
In short, tbe plaintiff failed entirely to make out a case which entitled him to go to tbe jury.
II.
At tbe close of tbe plaintiff’s case, the defendant demurred to tbe evidence, tbe court “announced that be would
Such steps are all matters of exception and can only be made a part of the record by a bill of exceptions; unless they are so saved, the action of the Court is not open here for review. [Reynolds v. Street Ry., 146 Mo. 126.]
It is insisted however that saving an exception to the overruling of the motion for a new trial is all that is necessary, and that the court had “settled” the instruction, although it had not actually given it, and therefore the non-suit was involuntary. The case of Greene County Bank v. Gray, 146 Mo. 568, involved a record which was in all respects identical with the record in this case, and after a full examination of the question, Beaob, P. J., in speaking for the court, held that a nonsuit taken under such circumstances was voluntary, and hence there was nothing for this court to review. That case meets our views and we adopt it here and re-affirm the principles it announces. It does not alter the case that the court had “settled” the instructions. Until the instructions are given there is no adverse ruling of the court which finally precludes a recovery by the plaintiff, for the court is required by section 2188, R. S. 1889, to “give” or “refuse” the instructions in writing asked by the parties or may give instructions of its own motion. Until the court so acts there has been no ruling or action of the court, with respect to instructions, no matter what announcements the court may have made of its intention.
The judgment of the circuit court is therefore affirmed.