156 Mo. App. 18 | Mo. Ct. App. | 1911
This is a, suit for damages alleged to have accrued to plaintiff because of defendant’s several breaches of a contract. Plaintiff recovered and defendant prosecutes the appeal.
Plaintiff formerly owned a stock of merchandise' and conducted a general store in a brick building owned by him at Caruthersville, which stock of merchandise he exchanged to defendant for 809 acres of land, a sawmill, a blacksmith shop, etc., in the State of Arkansas. As the stock of merchandise was not equivalent in value to the properties which plaintiff received from defendant, he also exemited to defendant, as part of the consideration for the exchange, his two promissory notes for the sum of $2650 each at six per cent interest falling-due, one in nine months after date and the other eighteen months thereafter. After the parties had reached an agreement with respect to the exchange of plaintiff’s stock of merchandise at Caruthersville and his two notes for defendant’s Arkansas land, sawmill, etc., the same was reduced to writing. This suit proceeds upon the written contract concerning this exchange of properties and declares upon four separate breaches of such contract. The written contract, among other things, recites that the parties had reached an agreement and that plaintiff, Smyth, thereby bound himself to exchange Ms stock of merchandise and the notes above mentioned to defendant, Boroff, for 809 acres of land in Arkansas, describing it, the sawmill, blacksmith shop, appurtenances, etc. And defendant Boroff agreed therein to convey the lands to plaintiff by a
There are four breaches of the contract set forth in the petition and they relate alone to the four provisions above mentioned. The contract provides as well that, in the event defendant desired to terminate the tenancy as to plaintiff’s store building, he should give thirty days’ notice to that effect before the end of the year, and gave defendant an option to have a new lease for several years thereafter upon giving thirty days’ notice that he so desired. Though the contract was dated February 10th, it appears defendant entered into posession of the store building thereunder on March 1, 1907, and continued therein until March 1, 1908, when he vacated the premises without written notice to plaintiff. Plaintiff immediately accepted rent at fifty dollars a month from one Fields who occupied one room of the store building with a grocery store, but the other room thereof remained unoccupied, except by plaintiff’s sister, Mrs. Thompson, for seven months thereafter— that'is, during the months of March, April, May, June, July, August, and September, 1908. The first breach of
The second alleged breach of the contract relates to the stipulation therein whereby defendant agreed to credit $50 per month of the rent for the building on the two notes of $2650 each which he held against plaintiff. It is averred substantially that, though the rent was fully paid for the year which defendant occupied the building and fifty dollars per month thereof was paid by Fields thereafter, defendant omitted and failed to credit fifty dollars per month.of such rent on plaintiff’s two notes held by him, each month as the rent fell due, during the year defendant occupied the building and during the seven months thereafter of March, April, May, June, July, August, September, 1908, when it was unoccupied by him, and that plaintiff was,' therefore, required to pay interest accrued on said notes to tfie amount of $76.68, which would have been abated had defendant credited the notes as agreed.
The third breach of the contract declares upon the stipulation therein Avhich bound defendant to convey to plaintiff the Arkansas lands by a “good and proper conveyance with abstract”, and the breach averred is, that defendant failéd and.omitted to perform, in that plaintiff was required to and did expend $479.80 in perfecting the title to such lands after he had received the deed from defendant, wherefore he avers damage to that extent.
The fourth alleged breach of the contract goes to the effect, after an amendment during the trial, that defendant had breached the stipulation thereof with re
The Bank of Oaruthersville was made a party defendant, as though it were the custodian of funds of defendant, Boroff, to the amount of $520, which were not available to process at law. The averment as to this matter is to the effect that the bank held $520, which was then in dispute, between these parties, as each claimed it. Both parties resided in Oaruthersville and if this $520 were the monies of defendant, it was obviously subject to garnishment at law. But it is not averred that it belonged to defendant; on the coritrary, the theory is, that it belonged to plaintiff. Plaintiff insists the suit is in equity as an equitable garnishment, and the court so treated the matter; but obviously the petition is without equity, for, unless the $520 were the property of defendant or he had rights therein, it is no more subject to .the process of an equitable garnishment than it is to that of a court at law. According to the averments, it is entirely clear there is no equity in the bill, and the court-should have discharged the Bank of Oaruthersville, but instead it overruled its demurrer. The bank suffered judgment to go against it thereon, restraining it from paying out the money, and .it has not appealed. Defendant, Boroff, requested a jury, but the court denied him the right on the theory the suit is one in equity. This was error. It is but a plain, ordinary common law action declaring upon four several breaches of a written contract and should have been so treated. On the pleadings the case is clearly one for a jury and the court should have so ruled. [1968, R. S. 1909; Rand, McNally & Co. v. Wickham, 60 Mo. App. 44, 47.]
Though the first breach relied upon asserts a right of recovery because defendant omitted to credit fifty
As to the second breach relied upon, the contract pointedly stipulates defendant should credit fifty dollars per month of the rent for the two rooms of the building on the two notes of |2650 each which he held against plaintiff, as such rentals fell due monthly. It is true this was not done as defendant pledged the notes as collateral security for a loan and they were not in his possession. But be this as it may, plaintiff was entitled, under the terms of the agreement, to have the credits made as provided and the failure to do so operated to impair his rights considerably, for the accruing interest on the two notes was not abated to that extent monthly as it otherwise would have been. We are unable to determine precisely the rights of the parties with respect to this matter, for the proof is not clear as to what was done about these payments. There is considerable evidence to the effect that plaintiff received the payments of fifty dollars monthly or indeed received the entire rental of one hundred dollars per month each and every month during the time defendant occupied the building. If such bo true, then the provision of the contract as to crediting the amount on the notes was waived by him, for he could not accept the payments of one hundred per month as they accrued and then complain that defendant should have credited fifty dollars thereof on the notes on each succeeding pay day in order to abate the accruing interest thereon. If plaintiff received all of the rents as they accrued, then the money in his possession should be treated as accruing interest to him equivalent to that stipulated for in the notes.
The third breach alleged relates to the stipulation of the contract imposing the obligation on defendant to "convey to plaintiff the Arkansas land by a “good and proper conveyance with abstract.” It appears conclusively that defendant performed the full measure of
There are other matters in the case which it is unnecessary to consider at this time, .as no doubt the court will dispose of them properly on a retrial. For the errors above noted, the judgment should be reversed and the cause remanded. It is so ordered.