121 Mo. App. 156 | Mo. Ct. App. | 1906
(after stating the facts). — 1. Under the ruling of the Supreme Court in this case (179 Mo. 679) the court properly refused defendant’s peremptory instruction to find for him, as the petition stated a good cause of action, and the evidence clearly entitled plaintiff to recover at least nominal damages, if nothing more.
2. The second refused instruction would have limited plaintiff’s recovery to the net value of the rents from
3. It is contended that as the agreement for the extension was made Avith John Coombs, who never acquired the property or any interest in it, the benefits of the agreement did not and could not pass to plaintiff by the mesne conveyance from Helen Coombs. While Helen Coombs’ name is not mentioned in the written memorandum of the agreement for an extension, she signed the agreement as a party thereto, and it was made for her benefit, as shown by the evidence. It also appears that all the terms of the agreement are not contained in the written memorandum, but were patched out by the parol evidence, which clearly shows the ex
4. The court’s instruction is criticised for telling the jury the uncontradicted evidence is that defendant waived the clause of the trust deed, requiring cyclone insurance. The clause providing for cyclone insurance gave defendant, as the holder of the deed of trust, an option in case such insurance was not kept up, to either foreclose the deed of trust or take out such insurance and charge its cost to the property. Defendant testified he overlooked this clause in the deed of trust, and that he had the foreclosure sale made for the reason plaintiff would not make itself personally liable for the payment of the note. Defendant at no time requested cyclone insurance from plaintiff; in other words, he did not exercise the option in the clause of the deed of trust referred to, and he cannot, at this late day, claim he foreclosed for the reason plaintiff failed to carry a cyclone policy of insurance on the property for his benefit. ■ While the clause of the instruction declaring a waiver is subject to criticism, the defendant, for reasons herein stated, was not prejudiced thereby. The instruction is also objected to on the ground that the only issue
5. Upon examination of tbe evidence, we tbink it shows tbe verdict of tbe jury to be sustained by substantial evidence, and it was approved by tbe learned judge, who presided at tbe trial. In view of these facts, tbe point, that tbe verdict is against tbe evidence and tbe weight of tbe evidence, is not open for review on appeal.
No reversible error appearing, tbe judgment is affirmed.