*1 entitled to It follows have her demand al- preferred preference claim. The lowed is reversed. Boyer, G., concurs. foregoing opinion
PER a- Campbell, CURIAM: The C., dopted opinion as the of the court. is for preference concur, Arnold, J., reversed. All except absent. Phelps Supply Company, v. Thomas F. Stone & Appellant, Respondents. al., Norton et 413. City Appeals. August 28,
Kánsas Court of *2 <& appellant. Oard for Woodruff Cooper, Neel, Kemp <& Rogers Sutherland and Frank J. for re-
spondents. CAMPBELL, C. On 11, plaintiff March 1920, lessor as and de- lessees, writing fendants terms, entered into contract plaintiff of which demised to defendants land situate in Jackson county, Missouri, Wyandotte and county, Kansas, purpose' crushing of quarrying, selling and rock and located on stone said lands. provided
It is in the lease that land was demised from March 1920, 11, 10, 1925; to March pay that defendants would to per yard twelve cents yard for each cubic of rock or quarried, stone or land; taken removed that the mini- year mum royalty each of the five term “shall be not $2500,” less than and that will pay' to a sum equal to one-fourth of said minimum at expiration three months from term, “regardless the commencement of the whether the measurements and to determine calculations the amount of rock actually quarried and been stone has which and removed from said land has completed, then been made and or whether the amount quarried of rock actually and stone and ledge removed from said or ledges produce royalty equal would sum, to said pay and will a like sum to the lessor expiration every at the of each and three months’ period throughout thereafter the term of this lease.” provides The lease also as follows:
‘‘ fiv'e-year created, hereby If within the the lessees shall erect upon and construct the above estate, described real a modern rock crushing plant, crushing not less than one (1000) thousand of rock day, then, and in consider- thereof, ation the lessees shall an have right exclusive hereby this and the term created prolonged extended and years for an additional or term of five expiration hereby created, of the term at an increased minimum one ($1000) per ye'ar, making thousand the minimum roy- annual dollars. alty year périod for such term, thirty-five additional five or hundred ($3500)' per year, payable quarterly dollars as herein provided. In all respects, other the lease for such additional term or conditions, covenants be same terms
period, shall lease.” agreements contained performance entered that defendants It is admitted created, thereby the term the first five the lease and royalties paid all of the lease and all of the conditions performed con- of that term defendants thereunder; expiration that at the due nothing was said and that property, of the possession tinued either, ,to lease; that de- an parties relative extension quarry March, about operate the until continued to fendants royalty as pay operation continued but at time ceased in- quarterly stated, failed and refused but hereinafter September 10, became due which, claims stallments 1930; thereupon plaintiff March 10,, 1929, and December seeking to recover said three installments suit brought relating to the removal conditions of lease breach and.for debris from the *3 quarry. ’ general plea that all rents answer is a denial and The .defendants royalty with the terms the lease. been accordance or seeking overpay- an to recover filed counterclaim also Defendants royalty. ment jury, court and verdict returned was tried to the The cause recovery plaintiff’s of action for the cause the'defendants pf
favor damages, for for count and defend- royalty and for on the appealed. Plaintiff has counterclaim. ants on their developed points and assignments of error authorities terms, in its and (1) the written lease clear therefore are: That plaintiff for the minimum directed verdict court should have the for. (2) year; that the court erred royalty upon basis the .of 6; (3) 2 al- Nos. that instructions in-giving defendants erroneous, counterclaim -was on defendants of interest lowance damage grossly inade- (4) .awarded quate. argues No. -assignment of support of error In accepted payment on the defendants plaintiff billed
‘‘When the very royalty (which at the first was done basis of increased by the it), then became bound pláintiff for ivas occasion time there claiming estopped from lease and option provision of the capacity.” required plant of th.e was not say minimum question the On this .that during the first five years $2500 unless period, of five second daily having premises plant a they on year period erected rock, yards which event if the of crushed capacity cubic $3500, would be minimum annual lease was extended plant capacity, of such did or not defendants erect an,d that.whether jury. of the determination fact for the was a At the trial manager treasurer and in direct examina- defendants, during tion testified that the first five crushing constructed a plant which, in his opinion, daily had a capacity of 1000 cubic of crushed rock. The defendants’ evidence on that plant con- by it yards. structed had a of 350 cubic It is evident parties tried the cause theory that defendants required were not upon the basis of $3500 per year year second-five unless the first five year they term a plant had erected having yards. theory. That was the correct It is conceded both option provision terms of the contract unambiguous. are clear and plain Under the provision defendants were not entitled to extend the life of the lease unless they plant having daily capacity, of 1000 cubic rock, crushed nor - pay royalty liable- to upon the basis of per annum thereafter unless such had been apprehend constructed. We will it if, be claimed that at the termination of the first five year pe- it riod was admitted that defendants had not constructed a capacity of 1000 yards, they compel could tiff'to extend the lease. When defendants held over after expira- tion of the first five period, anything without being said rela- tive held, they' were not liable in- creased right unless had the to exercise and did exercise option provision. [Liggett Exposition Company, 157 App. ‘ n It was shown plaintiffs, June submitted bill for *4 royalty for the of $847.08; sum that on 10, 1925, plain- December tiff royalty submitted bill for for the three months’ September 10, 1925, 10, to December 1925, in the sum $697.20; that the bill for June, in submitted was for the sum of $627, and that bill December, the submitted in 1926, was’ $625. for by first bill The submitted defendants, to the in which ref- erence is made the to claim that the minimum $3500- per 'year, is dated' March 1927. At that time defendants had operation, ceased presumably for the reason that the rock in the quarry had been condemned. Thereafter paid to tiff, quarterly, except sum of $875 the quarters three ending March It is plaintiff, evident that submitting in bills for a sum less than the minimum now it, claimed was pursuing a course from which a jury could find that it was claiming not that defendants- had -constructed- a a of 1000 - day. royalty upon the by paying defendants, that evident also is last part of the a each three months
basis trier the a course pursuing lease, were term a constructed recognized find that the fact could de- that mere fact yards. The 1000 cubic is not mistake, were made payments such assert that fendants the is that on that in behalf their The conclusive. contro- the by mistake, which evidence made payments were jury. was for the question hence the verted, and well request for directed verdict stated, the reasons For the ruled. No, you jury find the that “if told instruction Defendants’ that the defendants case the evidence believe from pro- to as from the defendants royalty due plaintiff all the verdict evidence,” the of the lease vided royalty issue. on the will be for the question law instruction submitted argues the Plaintiff option the permitted to construe jury, in that the to the law proper to submit It is not provision of the lease. legal contract. effect of a jury the to a [Mc- to a or to submit instruction is undoubt- The Gillioz, Farland judg- stated; do not believe the but we respect edly the erroneous was tried below The case reason. be reversed ment should dispute theory that was no as there presented here the lease. option provision of the interpretation the proper to to issue turned on rights The years of first five defendants, whether or yards. daily capacity of 1000 cubic having a brief as follows: clearly issue is stated presented issue, phase on this issue, only “Thus the provision of the lease its option of whether the the case defendants, they were justifies position taken of this 1000 quarter if did not erect a only crusher justifies provision yards capacity; or whether new crusher plaintiff, the condition about the position but condition, not was a increase right to have the additional five precedent condition lessor, plaintiff solely for the benefit —a condition case.” quoted does not take unto statement consideration the below. Considering cause was tried which the theory in *5 that the court, do not believe instruction
the trial we was reversibly We are forbidden reverse for any erroneous. error rights of the party.” “which not affect the substantial adverse shall 1929; Maloney Bank, 288 v. 459; Bevised Statutes Mo. [Section
273 Company v. 28; Trust App. 207 Railway Company, Grubb 285 Mo. Company, Surety intelligence, and hence jury were men will assume We 'they to decide. were called which questions understood jury defendants’ in the verdict support finds This view objections to upon the passing in discussed be which will counterclaim reads: 6,No. instruction defendants’ you and believe if find jury instructs court “The overpaid the defendants case evidence of the lease plaintiff, to the defendants from the due from' the evidence you find and believe say, if is to question; royalty than the terms of more paid the then, on defendants’ counterclaim for, call question the lease-in will be in favor of the defendants your verdict against plaintiff, any you if overpayment, find whatever against and' to the was made the defendants in this case from the evidence plaintiff. “ you overpayment And further instructs the court any excess, any, payment if made instruction, is meant used you was find and the evidence whatever over and above believe of the lease fixed by said lease.”
time or term 2 instruction No. is in relation to defendants’ we have said What criticism of the instruction is the instruction. The applicable to this patent against instruction No. leveled same as that question submitted to the language of the instruction erroneous-; but we do not believe law, it was therefore reversed for that reason. should be royalty paid the defendants to the The amount controversy question 'is based as to the disputed. not royalty for which the defendants were liable. amount of They installments of each. contend that Defendants nine ' Hence, twelve installments of if were liable each. had not constructed the defendants overpaid $375, clear sum of yards, cubic it is verdict. From this it is clear that the instruction, misled, the erroneous terms into the' belief jury, shows, interpreting the lease. The as the verdict
merely as whether or not determined having capacity constructed a cru'sher unpaid royalty pre- of crushed rock. The verdict on the by plaintiff’s petition sented and the verdict on defendants’ counter- claim are consistent.
The evidence in
behalf that defendants had constructed
a crusher
slight.
*6
n
Tbe evidence on that
prepondered in favor of defendants.
Upon considering
record,
we hold that the instruction was not
reversible erroneous.
Stone,
rel.
App. 346;
ex
[State
App. 284;
169 Mo.
The the case here defendants by holding over, as a law, matter of became liable for an annual minimum royalty $3500. says: Plaintiff in its brief parties
“The written lease entirely between the clear that provided additional five year, and this was confirmed the action lease, there was so no on this issue and the court should have directed a plaintiff.” verdict for n Itis further testimony the brief plaintiff tending to show plant had, that the new constructed of 1000 cubic “merely was introduced purpose showing plant the new was constructed and plaintiff was satisfied with it.” appears Thus it tiff has, court, abandoned claim that defendants did in fact construct a capacity of 1000 crushed rock. The were not bound to pay a minimum per year plant unless the them had such capaci-
ty. If, says, its evidence on that was introduced merely to show the fact that a new was constructed and that plaintiff was it, satisfied with and not for purpose showing the new had such capacity, and that the issue was one fact, law and not of then defendants, upon our interpretation of were entitled to have verdict directed their favor on the royalty issue for recovery of overpayment, in which event the question as to whether or not the complained, instructions of were erroneous, is immaterial. is, insisted that the allowance interest on defendants’ counter- claim, was erroneous. The interest was remitted and error, thus if .any, was cured. assignment The 4th of error is that the of damages awarded grossly inadequate. There was evidence was entitled to larger recover a much sum. There was evidence on defendants’ had not behalf breached the lease in the manner by plaintiff. claimed There was evidence that defendants left quantity small of debris on floor quarry. weight value the was for the and not for 'the court. The verdict met approval trial court will we not interfere. is affirmed. Boyer, G., concurs. foregoing opinion Campbell, C., PER CURIAM: Tbe is a- dopted opinion as tlie of tbe All court. The is affirmed. concur.
Henry City Ap et al., Dutton Respondents, v. of Independence, pellant. 161. City Appeals. August 26,
Kansas Court of 1932. by Supreme Court, August 5, Certiorari denied & Rogers Bums Mosman, Bums and & respondent. Buzará Thice, J Dry ohn F. L. T. Dryden den and Wm. J. appellant. TRIMBLE, P. Plaintiffs, parents as the four-year-old of a J. son, Henry Dutton, Jr., brought against city this action Independence to recover for the May death of son, who on 26, 1929, fell from top city’s culvert, end of the concrete feet, distance of seven to the rock or concrete bottom of the stream underneath said culvert, fracturing injury his skull from which he shortly died thereafter. A trial of the issues involved in a resulted verdict for tiffs in the sum city and the appealed. has