The judgment is affirmed. All concur. FRISBIE v. SCOTT et al. (No. 12753.) (Kansas City Court of Appeals. Missouri. March 4, 1918.) 1. APPEAL AND ERROR 854(6)-REVIEW- or licensee, was so clearly guilty of contribu- | plaintiff should deliver his deed (with the tory negligence as to leave him without legal name of the grantee omitted) to defendant standing. Scott so that he might take it to Iowa and there close a deal he had with a man named Muntz by inserting Muntz's name as grantee in said deed, and defendant's deeds to the lands plaintiff was to get in exchange for his were deposited in escrow with the Missouri Savings Bank to be delivered to plaintiff if the Iowa deal went through. Among these deeds so deposited was one from G. O. Stansbury to the two sections of Texas land. The Iowa deal went through and plaintiff's deed to the Colorado land was delivered by defendant to Muntz and the bank delivered to plaintiff the deeds held in escrow by it. The plaintiff acknowledged, in writing, and also in the testimony, that he accepted said deeds in performance of the exchange contract, among them being the Stansbury deed as aforesaid. This deed contained the usual warranty clause whereby Stansbury agreed to "warrant and forever defend" the title to the Texas land to plaintiff "against every person lawfully claiming or to claim" said land or any part thereof. 2. APPEAL AND ERROR 979 (1)-GRANTING NEW TRIAL-REVIEW. Where there is any dispute in the evidence, the granting of a new trial on the ground that the verdict is against the weight of the evidence will not be disturbed. 3. DEEDS 94-MERGER OF PREVIOUS CON TRACT-COVENANTS. Where there is a contract for a warranty deed, the acceptance of a warranty deed from a third party remits the acceptor to his covenants in his deed, and he cannot recover on the contract on account of failure of title by reason of a forged deed in the chain of title, in the absence of fraud or mistake. Appeal from Circuit Court, Jackson County; Wm. O. Thomas, Judge. Suit by Alvin C. Frisbie against F. E. Scott and Leon H. Schwald. Verdict for plaintiff. From an order setting aside the verdict on motion for new trial, plaintiff appeals. Affirmed. Ed E. Aleshire, of Kansas City, for appellant. Robert O. McLin, of Kansas City, for respondent. TRIMBLE, J. Plaintiff entered into a written contract with the defendant Scott whereby each agreed "to convey or cause to be conveyed by good and sufficient warranty deed" to the other or to his order different lands variously located, all of which were specified in Schedules A and B attached to said contract; the former containing lands in Colorado belonging to plaintiff, and the latter naming lands in Kansas City, in Ripley county, Mo., and in Texas, which the defendant was to convey or cause to be conveyed to plaintiff in exchange for his lands. The Texas lands consisted of two specified sections in Brewster county; and it is with reference to these two sections, or the failure of title thereto, that this lawsuit is concerned. Each party to the contract was to furnish to the other "full and complete abstracts of title, with the necessary certificates," etc. This was done, and plaintiff's attorney examined the title to the lands he was expecting to get. The lands defendant was to convey or cause to be conveyed to plaintiff were not owned by him, but stood in the name of various parties, and plaintiff knew of this fact. By certain modifications of the contract, not necessary to explain, it was agreed that The abstract to the Texas land showed in the chain of title a deed dated January 30, 1913, from Henry W. Rokker to S. A. Jones And the abstract showed an apparently good and next a deed from Jones to Stansbury. title in Stansbury, so that a deed from him to plaintiff, when delivered, would seem to put the title in him. Very shortly after the exchange, however, it was discovered that the deed from Rokker to Jones was a forgery, and was so declared to be by a decree of the proper Texas court. Since the deed purporting to be from Rokker (the owner) to Jones was a forgery, the deed from Jones to Stansbury conveyed no title, and hence Stansbury's deed to plaintiff was worthless and conveyed no title. Therefore, under the exchange contract, plaintiff got no title to the Texas lands and lost the value thereof. He brought this suit against Scott and the defendant Schwald, who was in fact interested with Scott in said exchange contract, though not signing it. The petition was originally in two counts; the first setting up the exchange contract and the warranty in the Stansbury deed, and apparently attempts to hold defendants on the covenant of warranty in said deed on the theory that, by virtue of the contract, Stansbury's deed was their deed and his covenant their covenant. In the second count no mention was made of the covenant in the deed, but the cause of action was based alone upon the violation of the contract. At the close of all the evidence plaintiff dismissed the second count. The court overruled defendants' demurrer and the case went to the jury; the plaintiff obtaining a verdict for $2,560 and interest from date of suit. This the trial court, on motion for new trial, set For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes aside without giving his reason for so doing. there be no ingredient of fraud, or mistake in Thereupon plaintiff appealed. [1, 2] If any one of the various grounds stated in the motion for new trial are sufficient, this would justify us in affirming the judgment. Among these grounds is one that the "verdict is against the weight of the evidence," and since we do not know what ground the court acted upon this may have been the one. And if there is any dispute in the evidence as to a material element in the case, this would require us to sustain the trial court's action. There is a very decided conflict in the evidence affecting the measure of damages which plaintiff claims to be the correct measure to be upheld. Hence we might very well affirm the judgment on this point alone. the case, and the party has not taken the preno remedy for his money, even on failure of caution to secure himself by covenants, he has title." And in Moyer v. Shoemaker, 5 Barb. (N. Y.) 319, 321, it is said: "It is also a general rule that, while there is an open covenant of warranty, the remedy of the party must be confined to that." See, also, Davidson v. Manson, 146 Mo. 608, 619, 620, 48 S. W. 635; Corrough V. Hamill, 110 Mo. App. 53, 84 S. W. 96; Herryford v. Turner, 67 Mo. 296. We are unable to see how the covenant of Stansbury in the deed, combined with defendant's contract to "convey or cause to be conveyed by good and sufficient warranty deed," can enable plaintiff to hold defendants, in the absence of fraud or mistake. Plaintiff, by accepting the Stansbury deed, agreed to receive the covenant of Stansbury in the place of defendants' covenant; and if the executory contract to exchange lands be However, it is asserted by plaintiff in the brief, and, in a way, though not as specifically as might be desired, admitted by defendants that the real reason the court set aside the verdict was because he thought the petition stated no cause of action and that plaintiff came functus officio upon the mutual delivery was not entitled to obtain any recovery. Hence we ought to dispose of this question, as it will affect matters arising hereafter. [3] There was no charge of mistake, nor was there any evidence of fraud or deceit on the part of defendants. If plaintiff's first count is a suit upon the covenant in the Stansbury deed, plaintiff's cause of action does not and cannot rest upon it alone, since the defendants did not sign the deed nor are they parties to it. The only way they can be connected with it, if at all, is by virtue of the exchange contract. But "contracts for the sale of land are in their nature executory, and generally, the acceptance of a deed in pursuance of their stipulations is prima facie an execution of the contract, and the agreement thereby becomes void and of no further effect." Bull v. Willard, 9 Barb. (N. Y.) 641 loc. cit. 644. On the next page the same authority says: "The prima facie presumption of law, arising from the acceptance of the deed is that it is an execution of the whole contract, and the rights and remedies of the parties, in relation to the contract, are to be determined by the deed, and the original agreement becomes void." of the deeds, it would seem that it became as much functus officio for the purpose of tying defendants on to the covenant in Stansbury's deed as for any other purpose. Nor can it be said that the contract is still alive because it has never yet been performed as to the Texas land, since the contract was to convey or cause to be conveyed by good and sufficient warranty deed, and the deed from Stansbury conveyed no title, and therefore plaintiff can still sue for the damages caused by the failure to perform that part of the contract. The deed from Stansbury to plaintiff was a genuine deed, and was a conveyance by good and sufficient warranty deed so far as Stansbury was concerned. It was sufficient to convey whatever title he had. The only trouble is there was a defect in his title owing to a forged deed in the prior chain of deeds to him. In Bull v. Willard, supra, 9 Barb. (N. Y.) at page 645, the court, in speaking of how to determine whether covenants contained in the agreement for the sale of land are collateral to those involved in the execution of the deed, It may be well to observe here that in the or are so connected with it as to be at an case at bar there is nothing tending in the end and become merged or satisfied in the remotest way to show that there were cove-execution of the deed, said: nants in the contract collateral to the deeds "I have not been able to fix upon a better to be delivered, and hence nothing to attack nant, in order to be deemed collateral and indecriterion, upon that question, than that the coveor destroy the prima facie effect of the un-pendent, so as not to be destroyed by the execuconditional acceptance of Stansbury's deed under the contract. In Slocum v. Bracy, 55 Minn. 249, loc. cit. 252, 56 N. W. 826, 827 (43 Am. St. Rep. 499), it is said: "No rule of law is better settled than that, where a deed has been executed and accepted as performance of an executory contract to convey real estate, the contract is functus officio, and the rights of the parties rest thereafter solely on the deed. This is so although the deed thus accepted varies from that stipulated for in the contract, as where the vendee accepts the deed of a third party in lieu of the deed of his vendor; and as, in the sales of land, the law remits the party to his covenants in his deed, if tion of the deed, must not look to, or be connected with the title, possession, quantity, or emblements of the land which is the subject of the contract; and that if it does so, the execution of the deed, in pursuance of the contract, will operate as an extinguishment of it." (Italics ours.) So that the fact of a forged deed in the chain was a mere defect in the title to said land, and did not constitute a nonperformance of the contract so as to leave it unperformed and with vitality sufficient to support a cause of action for nonperformance. This might be the case had Stansbury's deed to plaintiff been a forgery, for then that, to defendant's agent at Kansas City, Mo., as which plaintiff accepted as a deed would to the value, age, and condition of said stock; have been in reality no deed at all. In that that said cows were only worth $35 per head event, too, doubtless fraud would have en- instead of $60 as represented by plaintiff; tered into the case so as to change the en- that they were so thin they were not in a fit tire legal situation. condition to ship; by reason of all of which said policy was void. The answer further alleged that the cattle were delayed for four days by the civil authorities at the Kansas City stockyards for inspection, and that five of them died while in the possession and under the control of said civil authorities. (The policy did not cover the stock while so detained.) The reply admitted that the statements were made by plaintiff to the defendant's representative at Kansas City, but alleged that said statements were true, and denied the other allegations of the answer. We are unable to see how, in the absence of fraud or mistake, plaintiff has any right of recovery against the defendants, either on the covenant in the deed or on the contract, and hence affirm the judgment for that reason as well as for the other mentioned. The other Judges concur. ESTES v. HARTFORD FIRE INS. CO. (No. 12434.) (Kansas City Court of Appeals. Missouri. Dec. 31, 1917.) 1. INSURANCE 426 The evidence shows that plaintiff was a resident of Boone county, Mo., and engaged · TRANSPORTATION INSURANCE-CATTLE-INJURY IN TRANSIT. in the farming and live stock business; that The fact that cattle died in stockyards dur- on February 19, 1916, he owned 69 cows ing very cold weather did not affect the liability which were on a ranch near Virgil, Kan., and of a transportation insurer, where the cattle died as the result of injuries received in transit. that he desired to transport said cattle to 2. TRIAL 260(1)-INSTRUCTIONS-REQUESTS Hartsburg, Mo.; that before shipping them he visited defendant's agent at the stockyards -REPETITION. A requested instruction, covering a matter in Kansas City and procured the policy sued already fully covered by another instruction giv-on, paying the premium therefor. The cattle en by the court, was properly refused. 3. APPEAL AND ERROR ~692(1) — RECORD · QUESTION REVIEWABLE-EXCLUSION OF EVI BLAND, J. This is a suit on a policy of transportation insurance covering injury to certain cows while in transit, which were to be shipped from Virgil, Kan., to Hartsburg, Mo., via Kansas City. A trial before a jury resulted in a verdict for plaintiff in the sum of $320, and defendant has appealed. There were 69 cows covered and shipped, 8 of which were injured and died as the result thereof. The petition alleged that the value of the cows was $60 each. The answer admitted the execution of the policy sued on, but alleged it was executed because of false and fraudulent representations made by plaintiff were loaded by plaintiff's agent at Virgil, Kan., and billed to Hartsburg, Mo. Plaintiff's evidence tended to show that after the cows were loaded at Virgil the locomotive was backed against the train with such violence that five of the cows were knocked down in the car; that when the cows reached the stockyards at Kansas City two of them were down at the chutes and had to be carried out, and that the third was down with what cattlemen call "split legs"; that all three of these cows died in the pen as the result of injuries received during transit from Virgil, Kan., to Kansas City, Mo.; that four other cows were badly bruised and that the bruises looked like the animals had hooked one another. (They were horned cattle.) A veterinary held a post mortem examination of plaintiff's dead cattle at the stockyards in Kansas City and it was discovered by his assis tant that two of the same had two broken ribs each and that the third had numerous bruises. This assistant veterinary decided that the cattle had suffered on account of exposure to the weather, and that they might have been injured by a rough handling of the train, and a tramping and hooking of one another after they were down. He found no sign of any disease in any of the cattle; the cows had just passed the tuberculin test. The cows were detained two days by government inspectors at Kansas City and were then shipped to Hartsburg, Mo. When they arrived at the latter place two of the cattle were found down in the car, sore, stiff, and bruised; plaintiff's agent was unable to get them any further than the lot near the railroad station, and five of the cows died there within a short time. Defendant complains of the action of the court in refusing to instruct the jury to find for it. There was evidence tending to show that the cattle were not worth the amount of money, to wit, $50 or $60 each, as represent ed by plaintiff to defendant's agent at Kansas City when the policy was issued. And in this connection defendant points to plaintiff's evidence to the effect that the cows after arriving at Hartsburg were grass and hay fed and shipped to St. Louis and sold as canners for a little less then $40 per head. There was no evidence as to how long a time elapsed between the arrival of the cattle at Hartsburg and their sale in St. Louis, or as to whether the market had declined during said time. The evidence shows that when the cattle were shipped to St. Louis they had not recovered from injuries received by several of them during transit from Virgil, Kan., to Hartsburg, and at least one of them was a cripple. However, plaintiff introduced three witnesses as to the value of the cows when shipped to Hartsburg; one of these testified their value to be $55; another $60 a head; and another from $50 to $60 per head. This made an issue for the jury to determine, and the jury having found for the plaintiff, its finding is binding upon this court. Defendant introduced one witness who testified that the cattle were so emaciated at Virgil, Kan., that they were not in a fit condition to ship. However, plaintiff introduced several witnesses on this point; one of whom testified that the cows were in about such condition as those usually received in February at the Kansas City stockyards; another testified that the cows were not anything out of the ordinary and were "only just thin stock cows," such as seen at the Kansas City stockyards. Plaintiff testified that he told defendant's agent when taking out the insurance that the stock were "breeding cows that suckled calves this last year," and he testified that:" I had already shipped them 600 miles three months before this, after they had had their calves and weaned them. I never lost one of them." Plaintiff also introduced evidence tending to show that the cattle were of the weight represented by him to defendant's agent at the time of the issuance of the insurance. As to the condition of the cows at the time the insurance was written there was conflicting evidence, which was settled by the jury in plaintiff's favor. [1] There was evidence that the weather was very cold during the time the cows were at the Kansas City Stockyards, but there was no evidence that anything happened to them during that time that contributed to their death. Of course, the fact that they died during that time would not affect defendant's liability, as it was shown that they died as the result of injuries received in transit. There is some evidence that plaintiff's agent at Virgil, Kan., complained to the local agent of the railroad company that the cars were not "half bedded," and that there was sleet and snow in them, and that thereafter the agent threw some sand in on the snow, but there is no evidence that these conditions were the proximate cause of the injury, or, in fact, had anything to do with the injury and death of the stock. It is therefore unnecessary to say whether the policy covered a loss contributed to by plaintiff's negligence. [2] Defendant complains of the refusal by the court of its instruction D. This instruction attempted to cover the defense of misrepresentation by plaintiff to defendant's agent as to the condition of the stock at the time of the writing of the insurance. This matter was fully covered by defendant's instruction No. 1, which was given by the court. [3] Defendant complains of the action of the court in refusing to permit the introduction in evidence of a memorandum said to have been made by its agent and containing matters represented to him by plaintiff at the time of the writing of the insurance. This memorandum is not shown in the abstract of record, and for that reason we are unable to pass upon the question as to whether the court erred in refusing to admit the same in evidence. Lumber Co. v. Rogers, 145 Mo, 445, 46 S. W 1079; Gentry v. Field, 143 Mo. loc. cit. 409, 45 S. W. 286. [4] Defendant complains of testimony admitted over its objection to the effect that hair was found to have been rubbed off of the cattle upon their arrival at Hartsburg, Mo. The objection to this testimony was based upon the ground that the policy did not cover "the loss of a little hair." However, plaintiff's counsel at the time stated that they were not suing for the value of the hair, but offered the testimony to show the condition of the cattle. Under such circumstances the testimony was, of course, admissible. The judgment is affirmed. All concur. Where the justice's docket showed that de- Debtor to H. in McDonald Case, J. R. Palmer, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 3. JUSTICES OF THE PEACE REQUIREMENTS. 156-APPEAL | the circuit court, among other things recites Where the transcript filed by the justice in the circuit court showed that the bond and affidavit required by statute were duly filed and deposited with the justice in due time, and the justice did in point of fact return such appeal to the circuit court, the circuit court had jurisdiction, though no actual allowance of appeal appeared in record of justice, in view of Rev. St. 1909, § 7574, providing that in all cases when the bond and affidavit required shall have been filed or deposited with the justice in due time and the justice shall have returned such appeal to the appellate court the same shall be considered as having been allowed by the justice, although no entry thereof appears in the record. Appeal from Circuit Court, Lincoln Coun- of Lincoln county, at Troy, Mo., December 26, ty; Edgar B. Woolfold, Judge. "Not to be officially published." Action in justice court by J. D. Hatfield against F. H. Watson and another. There was judgment for plaintiff, but on appeal to the circuit court defendants prevailed, whereupon plaintiff appeals. Affirmed. Sutton & Huston, of Troy, for appellant. R. H. Norton and O. H. Avery, both of Troy, J. R. Palmer, of Elsberry, and Creech & Penn, of Troy, for respondents. 1913." [1] An examination of the affidavit for appeal shows that it is in statutory form and duly signed by Joseph R. Palmer, trustee, and Frank H. Watson, but that the justice failed to sign the jurat thereto. The record shows, however, that on the 9th day of June, 1914, in the circuit court of Lincoln county, where the appeal was pending and while a motion of plaintiff to dismiss the appeal on the ground that no affidavit for appeal was ever filed with the justice was BECKER, J. On December 25, 1913, plain-pending, but before such motion to dismiss tiff recovered judgment in the sum of $166.72 and costs before a justice of the peace in an action based on a statement or memorandum in the following form: "Elsberry, Mo. 12/15/1913. "Frank Watson, Debtor to J. B. Hatfield in McDonald case, J. R. Palmer, Trustee. $19.45 3.50 1.12 14.50 15.00 Cost first sale. Livery team to Troy and return. Toll, 37c; two dinners 75c. Cost first case... Lawyer fee.. Advertising place, last sale. had been determined, the defendants filed an amended affidavit for appeal, sufficient in form, duly subscribed and sworn to before a notary public. With the fact before us that an affidavit for appeal was filed in proper time and with an entry on the justice's docket showing that the defendants had filed the statutory affidavit, "being first duly sworn," and the affidavit for appeal itself showing that it is sufficient in form and properly signed by the necessary parties and 10.15 merely lacking the jurat of the justice before 25.00 whom the affidavit was made, we hold there was a sufficient compliance with section 78.00 7580, Revised Statutes of Missouri 1909, to $166.72 warrant the learned trial court in permit"Upon the back of said statement appear ting the appellants to file their amended affithe following indorsements: Filed, Dec. 27, davit for appeal. Curtis v. Tyler, 90 Mo. 1913. Harry L. Welch, Circuit Clerk.' 'Filed, App. 345; Ford v. Gray, 131 Mo. App. 240, December 15, 1913. Chas. S. Huckstep.'" 110 S. W. 692; State ex rel. v. Garnett Min. Co., 169 Mo. App. 79, loc. cit. 89, 90, 154 S. W. 168. Cost to compromise the case. Rent of place from June 15, 1912, to When the case reached the circuit court on appeal the plaintiff filed a motion to dismiss for the reasons: That no affidavit for an appeal or recognizance or bond for appeal, as required by statute, were ever filed by the defendants or either of them with said justice and because no appeal was ever allowed. The motion was overruled, and plaintiff standing on his motion to dismiss the court thereupon dismissed said cause. After unavailing motions for new trial and in arrest of judgment plaintiff brings this appeal. [2] As to the irregularity or defect in the recognizance or bond for appeal, the record shows that the bond is in due form required by statute, duly signed by Frank H. Watson, and in a sum more than twice the amount of the judgment and costs appealed from. It is argued, however, that the bond is defective, in that it is signed by Watson alone and not by Joseph R. Palmer, trustee. An examination of the statement filed before the justice clearly shows that this point is The transcript of the entries made on the without merit. The case is clearly one in docket of the justice who originally heard which J. B. Hatfield is plaintiff and Frank H. the case, together with the process and other Watson is defendant; the statement is headpapers relating to the said cause and filed ed "Frank Watson, Debtor to J. B. Hatfield with said justice, all of which were filed in in McDonald Case, J. R. Palmer, Trustee." |