45 Mo. App. 446 | Mo. Ct. App. | 1891
— This is an action to recover damages, caused to the plaintiff by the act of the defendants
The evidence tended to show the following facts:. Prior to the grievances complained of, the plaintiff held the premises as lessee of one Lucas under a lease for ten-years, expiring June 30, 1886. This lease contained a condition of forfeiture for non-payment of taxes when due. A few days prior to the expiration of this lease, Lucas agreed with the plaintiff to renew it for ten years, and caused a renewal lease to be executed and to be-delivered to the plaintiff. At that time some special taxes were due on the property, but it does not appear that either the plaintiff or Lucas knew the fact, or that, their payment had been demanded from the plaintiff. The plaintiff upon examination of the renewal lease discovered an objectionable clause in it, and took it back to Lucas for the purpose of having the clause stricken out, but the plaintiff testified that he was ready and willing to keep the lease, with the objectionable clause, if Lucas should decline to strike it out. Lucas agreed to strike the clause out, and told the-
Shortly after the execution of this memorandum, probably on the twenty-second of July, Menne called upon the plaintiff and informed him that he had bought the lot, and the plaintiff told him, “I wish you luck,” or “I wish you luck to your purchase.” The plaintiff at that time had a canvas sign on the lot, announcing that he had removed his business, but would resume it at that place. This sign was torn down by Menne’s employes without the consent of the plaintiff, according to the plaintiff’s evidence, and with his consent, according to the defendants’ evidence. It was replaced by the plaintiff and again torn down by Menne, and replaced with a sign of his own, stating, “ Parties wishing to occupy these premises will have a building erected to suit. Apply to Otto Menne, 1012 Market street.” It was also in evidence that the plaintiff and the Mennes, father and son, were rival traders in the same vicinity, and that the relations between them were strained.
The plaintiff instituted suit for specific performance against Lucas, Nelson and Hammett, to the October term, 1886, to compel the execution of the lease to him. The object of this suit was to have the lease delivered by Lucas to the plaintiff declared in force, and to obtain damages for its being withheld. In that suit such proceedings were had, that, on the fifteenth day of June, 1887, the court made a decree declaring the lease which
I. The first error assigned must be ruled against the defendants. The variance, if there was one, between the petition and proof was one simply affecting the question of damages. The petition claims certain special damages, which the court ruled out. The plaintiff then gave evidence of certain other damages, but no objection was made to the evidence of such damages, when offered, on the ground that they were not damages claimed in the petition, nor on the ground of surprise, nor on any ground. This evidence the record shows went in without objection. While the damages thus claimed are special, and should have been set out in the petition, it was incumbent upon the defendants, when the evidence was offered, to object to it on the ground that they were not thus set out. Had the objection been made, the plaintiff might have amended his petition and thus avoided it. Griveaud v. Si. Louis Cable & Western Ry. Co., 33 Mo. App. 465. The objection now made, when analyzed, is not that plaintiff ’ s theory of recovery was changed, but that the elements constituting his measure of damages were varied. As, under the code, the court may grant any relief consistent with the allegation made, the objection of a change of theory between the pleadings and relief is not applicable to the case at bar.
III. The defendants offered an instruction in the nature of a demurrer to the evidence. This we hold was properly refused. There was evidence tending to show that the defendants, Hammett and Nelson, knowing of the plaintiff’s claim under the lease, executed the memorandum of sale to Menne for the very purpose of depriving the plaintiff of the possession to which the lease entitled him. The particular terms of the memorandum of sale made to Menne, the fact that he was an infant and not responsible on his notes, which furnished the only substantial consideration of the sale, and Menne’s subsequent conduct in keeyjing possession of the property without liinderance from his codefendants, and without paying anything, justified the inference that he was a mere tool in the hands of his codefendants, and that he knew the purposes for which he was thus used. If this be so, then all three defendants are liable to the plaintiff. Wall v. Osborn, 12 Wend. 39. The fact that taxes were due and unpaid on the first lease, and that the non-payment of taxes was ground of forfeiture, was wholly foreign to this case. The right of forfeiture, if any existed, was not insisted on by-Lucas, and the plaintiff does not claim under the fi rst lease, which did not even contain any covenants for renewal, but under the second lease, which was granted to him by Lucas in 1886, which had been delivered to him, and which he never surrendered. The non-payment of the special tax bill by the plaintiff did, therefore, in no way affect plaintiff’s right of recovery, and no-motion for a nonsuit could have been predicated on that ground. *
This instruction was unquestionably misleading as in one sense there could be no question at all but that Menne acted in pursuance of the authority of his codefendants, since the memorandum of sale was aiothority to him. Under this instruction the defendants, Hammett and Nelson, could have been held liable, even though the jury found that they acted in perfect good faith and under a justified belief that the plaintiff had abandoned all claim to the property, which is not the law. The court of its own motion gave an instruction to the jury in which the words direction and instigation are used, in lieu of the word authority used in the plaintiff’s instruction. It is claimed by plaintiff’s counsel that the instruction given by the court of its own motion cured the error, if any, in plaintiff’s instruction, since all the instructions should be taken and construed together; but this is only the case when one instruction necessarily qualifies the other. Here the court’s instruction does not purport to be a qualification of plaintiff’s instruction, since the words direction and instigation are not used as stating any necessary condition precedent. to liability, and hence do not limit or explain the word authority used in plaintiff’s instruction.
V. An argument is also strongly pressed upon us that the damages, under the instructions of the court
The judgment is reversed and the cause remanded.