Shelton v. Durham

| Mo. | Oct 15, 1882

Norton, J.

This suit was brought in the St. Louis circuit court, by appellants, against John P. Durham, as principal, and James Lnthy and Henry P. Yahlkamp’s administrator, as sureties on a bond executed by them to said appellants, dated, November 11th, 1872, for $15,000, conditioned as follows: “ Whereas, the said Jno. P. Durham has covenanted and agreed to erect at his own cost and expense, within ten months, a good and substantial building, to be worth $15,000, as specified in the foregoing lease; Now, if said John P. Durham shall, within ten months, erect the said good and substantial building, worth a least $15,000, on said premises as specified in said lease as aforesaid, and shall pay for the same, so that no mechanic’s lien will be filed against said premises, then said bond to be null and void; otherwise to remain in full force and virtue.”

Plaintiffs allege in the petition the execution and delivery to defendant Durham of a writing leasing to him a lot in the city of St. Louis for the period of ten years, containing certain covenants on the part of said Durham and among them one which bound him to erect and build on the leased premises a good and substantial building within ten months from the 11th day of November, 1872, of the value of $15,000; which at the termination of the lease was to belong to plaintiffs. It is also averred that said Durham had not only failed to perform said building covenant but also others mentioned in said lease, whereby it became terminated and an action accrued to plaintiffs on the bond in suit.

1. action against ing. In order to prevent further reference to it, it may here be observed that the court, on defendant’s motion, struck out all that part of the petition relating to the non-performance of all covenants except the one relating to the erection of said building. This action was entirely proper as defendants had only bound themselves in the bond sued upon to be answerable for the non-performance of the building covenant.

Defendant Durham answered separately that after said lease had been signed and delivered, and before he secured possession of the leased premises, he learned that it was not properly nor legally executed by Mrs. Rives, one of the lessors and a married woman, and that Erank G-. Shelton, another of the lessors, was a minor, and that he refused to receive said lease, and would have rescinded the same, but plaintiffs agreed with him that if he would accept said lease, they would cause it to be executed properly by Mrs. Rives, and would also execute a bond of indemnity against all damages that might be. sustained by reason 'of the minority of said Shelton ; that said lease was never legally executed by Mrs. Rivas nor said bond of indemnity ever given, and that the bond in suit was without consideration.

The other two defendants answered jointly setting up substantially the same defense.

On the trial defendants obtained judgment, from which plaintiffs appealed to the St. Louis court of appeals, where the judgment was affirmed, and from which plaintiffs have appealed to this court. It is insisted that the court erred in giving and refusing instructions and in admitting evidence.

2. objection to evidence: the record. The defendant Durham was put upon the stand as a witness, and his evidence in relation to the agreement of plaintiffs to have Mrs. Rives properly execute x r x v the lease and the indemnifying bond, was objected to, which was overruled, and the evidence received. The record before us does not show the specific grounds, or any grounds whatever, upon which the objection was based, and according to repeated rulings of this court objections to evidence will not be considered unless the objection shows the specific grounds on which they are based. Primm v. Raboteau, 56 Mo. 407" court="Mo." date_filed="1874-03-15" href="https://app.midpage.ai/document/primm-v-raboteau-8004532?utm_source=webapp" opinion_id="8004532">56 Mo. 407; Margrave v. Ausmuss, 51 Mo. 566, and cases there cited.

3. construction of A PLEADING. The court gave for plaintiffs an instruction to the effect that if the jury believed from the evidence that the lease read in evidence was signed by the parties thereto, and delivered to the defendant Durham, and that he accepted .the same unconditionally and entered into possession of the leased premises, and that said lease had terminated by forfeiture or otherwise, and that Durham had failed to erect the house mentioned in said lease, they would find for plaintiffs.

The court, of its own motion, then gave the following: If the jury find from the evidence that prior to the acceptance of the lease read in evidence by the defendant Durham, and prior to the delivery of the bond sued upon to the plaintiffs, the plaintiffs agreed with defendant Durham that they would thereafter cause said lease to be properly executed by the plaintiff Gillie S. Rives, and her husband, and would give a bond of indemnity against E. G. Shelton disaffirming said lease upon his coming of age, and that defendant Durham accepted the lease in question, and entered into possession of the premises and delivered the bond now in suit upon such conditions, and that plaintiffs never did, in fact, comply with such conditions, by causing said lease to be further executed by Gillie S. Rives and her husband, and said bond to be given, then the plaintiffs cannot recover on said bond ; but the burden of showing that the lease wa3 accepted, and said bond delivered upon such conditions, and that such conditions were not complied with, rests upon defendant, and the jury must be satisfied of said facts by competent evidence.

These instructions, we think, embraced the case made in the pleadings and evidence. The answer is susceptible of the construction evidently put upon it by the trial court, viz: that the defense relied on was that the lease was never accepted except upon the conditions mentioned in the instructions given by the court of its own motion.

4. new trial for variance. It is also insisted that the court erred in not granting a new trial on the ground of variance between the pleadings and proof. It has been held by this court that before such ground can be made available, the party relying upon it must show by affidavit not only that he was misled, but also in what respect he had been misled, and such is the plain reading of the statute. R. S., § 3565 ; Wells v. Sharp, 57 Mo. 57; Fischer v. Max, 49 Mo. 405; Turner v. R. R. Co., 51 Mo. 503. The affidavit filed did not come up to these requirements.

Judgment affirmed,

in which all concur.