(218 S.W.) dle the transaction along the lines mentioned [ clause, the $2500 is to be placed to account by Mr. Gorman, president of defendant. The cashier told him he would, whereupon plaintiff wrote that bank a letter, stating how the money was to be paid to defendant, in accordance with the understanding had with Mr. Gorman, attaching a check for $2500 to the letter, payable to the Mechanics-American National Bank. The cashier of that bank, under date of March 30th, wrote plaintiff, confirming a telephone conversation, that the bank would prefer to have the matter arranged in the form of a contract, and that plaintiff could deposit the money with the bank in escrow, as security to carry out the contract, and accompanying the letter the bank returned the check to plaintiff. On the same day, March 30th, plaintiff handed to Mr. Gorman, in the form of a letter addressed to defendant, and acknowledging receipt of the above letters of March 17th and 25th, which stated: "Regarding our purchase from you of 200 tons of reinforcing bars, we beg to advise that we will be pleased to make the $2500 deposit in question, and in accordance with my conversation over the telephone with your Mr. John Gorman, we are depositing this amount in the Mechanics-American National Bank * subject to the following conditions, which you will realize are outlined for our mutual protection and so that you may secure payments without question or delay from the bank on your fulfillment of contract between us. This letter is submitted to you in triplicate, so that you may accept same and you, the bank and the writer may each have a copy signed by both parties for reference and guidance. The Mechanics-American National Bank will hold this $2500 special deposit for you, subject to the following conditions." Conditions follow, the first of which reads: "On material for which you have already contracted with your mill and submitted specifications for bars, you will request the mill to change the specifications to comply with our requirements, namely, 400,000 pounds of threeeighths inch round bars in lengths of from 50 to 60 feet, varying by even feet. All bars to be billet stock intermediate grade steel, as per standard specifications for concrete reinforcement bars of the Association of American Steel Manufacturers. "You will present to the Mechanics-American National Bank, within 10 days, a letter stating that your mill has agreed to change the specifications as above, and such letter will be considered as putting in force the contract between you and the writer, in so far as our instructions to the bank are concerned. Should you fail to present such a letter to the bank within 10 days, the writer may, at his option, extend the time for presentation of the letter in ques tion or may consider the contract void." The second provision was a direction to the bank as to how the money deposited was to be paid. The other clauses provide that if the contract becomes void, as in the first 218 S.W.-23 of plaintiff with the bank, it being set out that these instructions are to cover a four months' period in which the steel is to be shipped, and are to become void four months from date, and 10 days later the bank was to credit plaintiff's account with any balance not paid to defendant. This was signed by plaintiff and presented to defendant's president for acceptance on March 30, 1916. Mr. Gorman, after reading one or two paragraphs of it, handed it back to plaintiff with the statement that there was too much tape about it. On March 31, 1916, Mr. Gorman, for defendant, wrote plaintiff that he had had a telegram from the mill which was to make the steel rods, that the mill was shipping that week 3/4 inch and 7/8 inch round bars, "which is practically the bulk of spec ifications and therefore we are unable to change the material specified to suit your requirements," the letter further adding that defendant found that the mill with which they had placed the contract for its manufacture "cannot roll smaller rounds or squares than five-eighths inch, and their principal steel product is rolled steel, rerolled from axles." The letter closed with the statement that much to its regret defendant necessarily has to withdraw its proposition of some few days ago and call the deal off. This present action followed. [1] In the light of the testimony in the case, the instruction which the defendant asked at the close of the case should have been given. It does not appear from the evidence produced that any contract had in point of fact been arrived at between the parties, while various proposals had, from time to time, been made and accepted, the final one proposed by the plaintiff in the letter of March 30th was an entire departure from the original as set out in its letter of March 11th, and it is on the alleged contract, or proposed contract of March 11th that this action is based, and entirely different as to the specifications and kind of steel rods required and an entire variance from the proposal of defendant that the $2500 was to be deposited with it and not with the bank as plaintiff proposed. That defendant refused to accept the proposal as embodied in this letter is clear. It follows that we find no error in the action of the trial court in sustaining the motion for a new trial on one of the many grounds assigned, namely, that under the evidence plaintiff was not entitled to recover, the evidence failing to show any contract between the parties as alleged. ties have argued at great length as to wheth er changes in the contract were within the But NANT OF LEASE REQUIRED REPAIR OF FOUNDATION AND WALLS WHICH WERE NOT IN GOOD CONDITION AT TIME LEASE WAS MADE. Covenant in lease that lessor "will keep the * of the building foundation, the walls on said premises in good condition for the be construed to mean that, if the foundation purposes of the tenancy hereby created," must and walls were not in good condition at the time the lease was made, it was the duty of the lessor to put them in such condition at or before the commencement of the lease, and keep them so during the term. say that as defendant neither pleaded the | 4. LANDLORD AND TENANT 152(3)-COVEstatute nor made any objection to the introduction of the testimony offered and supposed to relate to the change, we do not think that is before us, even if material. Learned counsel for respondent, claims that in offering his demurrer at the close of the case he had stated to the court that one of the grounds for that was that the statute of frauds was involved. The abstract shows that he did this. But we do not think that is the proper way to raise the issue of the statute. It should be raised either by pleading or by proper objection when the evidence relating to the contract is offered. Schmidt v. Rozier, 121 Mo. App. 306, 98 S. W. 791; Gifford v. Willman, 187 Mo. App. 29, loc. cit. 34, 173 S. W. 53. We notice this by way of caution in the event that a new trial is had. Where a lease which need not be under FOR MORE THAN ONE YEAR BY AGENT NOT Where agent who did not have authority in writing as required by Rev. St. 1909, §§ 2781-2783, leased realty of his undisclosed principals for a term greater than one year, the contract was not void, but created an estate at will, which by reason of entry and payment of rental by the month made a valid lease from month to month, binding upon the principals. 5. LANDLORD AND TENANT 152(9)—LESSEE BY REMAINING IN POSSESSION DID NOT WAIVE Plaintiff lessee, by remaining in possession long after he discovered the bad condition of the foundation walls, did not waive any right, where he repeatedly called the lessors' attention to the condition complained of, and was repeatedly promised by them that the necessary repairs would be made. Appeal from St. Louis Circuit Court; Thomas C. Hennings, Judge. "Not to be officially published." Action by Eugene J. Kreppelt against Robert C. Greer and others. Judgment for plaintiff, and defendants appeal. Affirmed. R. M. Nichols, of St. Louis, for appellants. John Cashman and Anderson, Gilbert & Hayden, all of St. Louis, for respondent. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (218 S. W.) While the evidence in the case is conflicting on some points, yet we hold there is substantial testimony to support the finding of the trial court. The facts necessary to have been found from the record to sustain the finding for plaintiff, and which facts we hold are sufficiently shown therein, we will recite in brief form. BECKER, J. This is an action for dam- through the foundation walls onto the bowlages to personal property alleged to have ing alleys. Plaintiff again notified one of been sustained by plaintiff while a tenant of the defendants and was again promised that the defendants by the breach of a covenant they would have the foundation walls fixed. of lease. The case was tried to the court This condition continued every time it rained without the intervention of a jury, and from or thawed, and finally got so that water a judgment in favor of the plaintiff in the seeped through the basement walls in varisum of $1,000 defendants appeal. ous places. Plaintiff repeatedly notified defendants and demanded of them to repair the foundation walls, and defendants repeatedly promised to remedy the existing condition, but in point of fact never made any repairs upon the foundation walls up to the date upon which the plaintiff moved out. There is abundant testimony that after each rain the water would seep into the basement through the walls to such an extent that for three or four days the bowling alleys could not be used; that by reason of this condition plaintiff was deprived of the use of the bowling alley premises one-half of the time during the spring of 1910 and also about onehalf of the time for the balance of the year after the month of August. For a month prior to the date upon which the plaintiff surrendered the premises to the defendants the plaintiff notified defendant Ed. Greer almost daily about the said condition and that he was unable to make use of the bowling alleys. Finally plaintiff was told that if he wanted to have the walls repaired he would have to do it himself. Plaintiff thereupon, on the 15th day of May, 1911, moved from the premises and surrendered the keys to the defendants. There is testimony that the bowling alleys had a reasonable value of approximately $1,800 to $2,000; that by reason of the water coming in and standing upon them they had become badly warped and unAs to the foundation walls, fitted for use. there is testimony that a few months after the plaintiff had moved from the building the lot immediately next adjoining the premises in question was excavated for the erec Plaintiff leased a certain two-story and basement brick building in the city of St. Louis on January 13, 1910, for a period ending January 12, 1915. In said lease one Kate Murphy was named as lessor. Kate Murphy, however, was a straw woman, merely holding the property in question for defendants, and in making the said lease was acting as the agent of and for the defendants, who at the time were the undisclosed principals so far as plaintiff is concerned. Kate Murphy, however, had no authority in writing from the defendants authorizing her to make the lease in question. Plaintiff had occupied the premises one month prior to the execution of the lease and continued to occupy the premises until the 15th day of May, 1911, when he moved therefrom and surrendered possession thereof to the defendants, assigning as his reason therefor the failure of the defendants to comply with the lessor's covenant in the lease that "She will keep the foundation, the walls (excepting openings), cornice, guttering, downspouts, the roof and exterior of the building on said premises in good condition for the purposes of the tenancy hereby created." As to the purposes of the tenancy the lease tion of a building thereon, and thereby the provides that— Of the items of damage set out in the petition we need note but one, namely, damages to the bowling alleys and equipment, which are alleged to have been $2,000. There is substantial evidence that within four or five weeks after the beginning of the lease water percolated through the basement wall on the north side of the building and onto the bowling alleys; that plaintiff himself endeavored to patch the wall so as to exclude the water, but was unsuccessful; that he thereupon notified defendants the following day and was assured that the matter would be attended to. A week or so later, after another rain, the water again came foundation walls of defendants' premises were exposed to view, and that "you could see clear through them; the rain had caused a hole five or six feet," and the rocks fell from the foundation, and "there was no cement put in there; nothing but sand in between the rocks." While the appellants have elaborately set out some 20 assignments of error, in view of the fact that we hold the evidence sufficient to sustain the finding for plaintiff upon the facts as we have outlined them above, we need address ourselves only to such of the assignments of error as may merit discussion in light of our said ruling. [1] I. It is earnestly contended in that the lease in question shows upon its face that the word "seal" was added after each name subscribed thereto, that this in itself is sufficient to make it an "instrument under seal," and that therefore the undisclosed principals could not be held upon any covenant in said | condition of the walls and foundation when lease, in that no one but the actual signers the covenant was made, is not well taken. of an instrument under seal becomes a par- The only fair and reasonable construction ty to its covenants and they alone are liable. which in our judgment can be placed upon [2] The lease was not required to be exe- this covenant is not that the foundation and cuted under seal, and therefore the point is walls, if in a defective condition at the comwithout merit. Where a contract which mencement of the lease so as not to be in need not be under seal is, however, executed good condition for the purposes of the tenunder seal by an agent having authority to ancy thereby created, shall be permitted to execute any simple contract, such contract remain so, but must be construed to mean will be held binding on the principal as a that if the foundation and walls of the buildsimple contract, and the unnecessary seal ing on said premises were not in good conmay be treated as superfluous and disregard-dition for the purposes of the tenancy at the ed, and the sealed instrument deemed an un-time the lease began, it was the duty of the sealed one and may be ratified as a simple lessor, under this covenant, to put the walls contract in writing. Bless v. Jenkins, 129 and foundation in such condition at or beMo. 647, 31 S. W. 938, and cases cited; Leh- fore the commencement of the lease and keep man v. Nolting, 56 Mo. App. 549. them so during the term. Myers v. Burns, [3] II. Learned counsel for appellants al- 35 N. Y. 269; Olson v. Schultz, 67 Minn. so contends that the lease being under seal 494, 70 N. W. 779, 36 L. R. A. 790, 64 Am. and for a term greater than one year, and St. Rep. 437; Miller v. McCardell, 19 R. I. there being no written authority of the agent | 304, 33 Atl. 445, 30 L. R. A. 682. under seal averred to have existed or shown [5] IV. While the record discloses that by the testimony, that therefore the petition | does not state a cause of action, because an undisclosed principal cannot be held in the face of the statute of fraud, which requires such authority to be in writing. So much of the argument in support of this contention as is based upon the fact that the instrument is sealed has been disposed of by what we have said in the preceding paragraph. However, under sections 2781, 2782, and 2783 of Revised Statutes of Missouri 1909, the record in this case showing that the agent who executed the lease in controversy did not have authority in writing from his principal to enter into the written lease of real estate, the point that the agent could not bind his principal is well taken, at least to the extent that the estate created by the lease itself, by reason of said sections of the statute, is but an estate at will, however, with all the common-law incidents of such estates, namely, that it is convertible into an estate from year to year or from month to month, as may be implied by entry and payment of rental. Hoover, Rhoades & Co. v. Pacific Oil Co., 41 Mo. App. 317; Williams v. Deriar, 31 Mo. 13; Hammon v. Douglas, 50 Mo. 434. The contract of lease was therefore not void under the statute, but created an estate at will, which in this case, by reason of entry and payment of rental by the month, as therein provided, made a valid lease from month to month and binding upon the defendants. Lehman v. Nolting, 56 Mo. App. 549; Bless v. Jenkins, 129 Mo. 647, 31 S. W. 938. [4] III. As to the argument that the covenant in the lease that the lessor, "will keep the foundation, the walls * of the building on said premises in good condition for the purposes of the tenancy hereby created," must be construed with reference to the plaintiff remained in possession of the prem- [6, 7] V. It is argued by appellants that the trial court erred in its declaration of law on the measure of damages applicable to the case at bar. An examination of the declarations of law given by the court shows that it limited the plaintiff's recovery, if any, to the reasonable value of plaintiff's bowling alleys; thus the court eliminated from the consideration the other items of alleged damage set up in the petition and sought to be recovered for, namely, $3,500 for loss of profits to the end of the lease; $1,500 for. damage done the pool tables; and $130 for payment on barber shop fixtures. We find no error in this action of the court. It may be stated as a general rule that recovery must be confined to the actual damages that plaintiff may have sustained which are the direct, immediate, or proximate and unavoidable consequence of the breach of the covenant sued upon. Schenk v. Forrester, 102 Mo. App. 124, 77 S. W. 332; Rife v. Reynolds, 137 Mo. App. 290, 117 S. W. 652; Fisher v. Goebel, 40 Mo. 475. [8] VI. In light of the law pertinent to this case, as we have set out above, the question as to whether or not the facts as disclosed by the record suffice to make out a case of constructive eviction is not the decisive question in the case; however, as we have already indicated, plaintiff made out a case (218 S.W.) sufficient to sustain the finding in plaintiff's | sonal injuries. Judgment for plaintiff, and favor upon that issue. defendant appeals. Reversed and remanded. [9] In view of the covenants in the lease with reference to keeping the walls and foundation of the premises in good condition for the purposes of the tenancy, and the testimony as to the damage done by the water coming into the basement through the foundation walls and flowing over the bowling alleys, we hold there is substantial evidence to support the judgment of $1,000 for plaintiff. Finding no error in the record which affects the merits of the case, the judgment of the circuit court is affirmed. Charles W. Bates, T. E. Francis, Alva W. Hurt, and Chauncey H. Clarke, all of St. Louis, for appellant. Abe Altman and Brownrigg & Mason, all of St. Louis, for respondent. ALLEN, J. This is an action for personal injuries sustained by plaintiff, and for damage to an automobile truck belonging to him, caused by said truck being struck by a street car operated by the defendant. The trial below, before the court and a jury, resulted in a verdict and judgment in favor of plaintiff for $1,500, from which judgment the de REYNOLDS, P. J., and ALLEN, J., concur. fendant appeals. At the time of the casualty in question, plaintiff, with four other men, was an occupant of the truck, which was standing with the rear end thereof upon or across the defendant's south-bound tracks on Broadway, DAVIS v. UNITED RYS. CO. OF ST. LOUIS. a street extending north and south in the (No. 15813.) city of St. Louis, near East Penrose street, a street which enters Broadway from the east. (St. Louis Court of Appeals. Missouri. Feb. The evidence shows that prior to the colli3, 1920.) 1. STREET RAILROADS 117(28)-CONTRIBUTORY NEGLIGENCE IN TURNING AUTOMOBILE TRUCK STRUCK BY CAR QUESTION FOR JURY. In an action for injuries to plaintiff when his automobile truck was struck by a street car while he attempted to turn the truck in the street when the car was about 250 feet away traveling at the rate of 25 miles an hour, evidence held to make the question as to whether plaintiff and his chauffeur were guilty of contributory negligence one for the jury. 2. STREET RAILROADS 99(1) DEGREE OF CARE REQUIRED OF AUTOMOBILE DRIVER DEFINED. In an action for injuries in a collision when plaintiff turned his automobile truck in front of an approaching street car, an instruction that he was required only to exercise ordinary care was erroneous under Motor Vehicles Act, & 12, subd. 9, requiring the highest degree of Upon sion, which occurred between 2 and 3 o'clock in the afternoon of October 2, 1915, plaintiff's truck, in charge of one Schlarman, plaintiff's chauffeur, had stopped on the west side of Broadway in front of plaintiff's place of residence, a short distance north of Ferry street, the next street intersecting Broadway north of East Penrose. Broadway defendant maintained double street car tracks. It is said that at that time defendant's south-bound car was standing at Bellefontaine Road, a block north of Ferry street. According to testimony for plaintiff, the truck was driven south on the west side of Broadway, and west of defendant's west or south-bound track on that street, for a distance of 200 or 250 feet, when it veered to the east and came upon or over defendant's south-bound track, along which it was driven for perhaps a distance of 200 feet to a point near East Penrose street. The truck was a large one, broader than the street car track. It was the chauffeur's intention to back the truck to the east side of Broadway, just north of East Penrose street, for the purpose of removing a piano from a building on the northeast corner of Broadway and East Penrose. The evidence shows that, upfeur first swung the truck to the east and on nearing East Penrose street, the chaufthen turned it to the west, or southwest, in order that it might be backed to the east side of the street. According to testimony for plaintiff, in making this turn to the east the rear wheels were at no time entirely removed from the south-bound track, but the front Appeal from St. Louis Circuit Court; wheels moved over upon the north-bound William T. Jones, Judge. care. 3. TRIAL 296(4, 5)-ERROR IN INSTRUCTION ON DEGREE OF CARE REQUIRED OF AUTOMOBILE DRIVER PREJUDICIAL NOTWITHSTAND ING PROPER INSTRUCTION GIVEN. In an action for injuries in a collision when plaintiff's automobile truck was turned in front of a street car 250 feet away approaching at the rate of 25 miles an hour, an instruction that plaintiff and his chauffeur were required only to exercise ordinary care was erroneous, in view of Motor Vehicles Act, § 12, subd. 9, requiring the highest degree of care, notwithstanding a proper instruction requiring a very high degree of care. Action by Samuel Davis against the United Railways Company of St. Louis for per track. After making these movements, the truck, which was then headed toward the southwest, was stopped with its wheels near For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |