23 S.W. 776 (Mo. 1893), Warder v. Henry

Citation:23 S.W. 776, 117 Mo. 530
Opinion Judge:Black, P. J.
Party Name:Warder v. Henry, Appellant
Attorney:Jefferson Brumback for appellant. Elijah Robinson for respondent.
Case Date:November 06, 1893
Court:Supreme Court of Missouri

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23 S.W. 776 (Mo. 1893)

117 Mo. 530



Henry, Appellant

Supreme Court of Missouri, First Division

November 6, 1893

Appeal from Jackson Circuit Court. -- Hon. R. H. Field, Judge.


Jefferson Brumback for appellant.

(1) The deed of trust of March 10, 1888, was not well acknowledged, and the record thereof was not constructive notice to Crawford when latter took his leases; Laws, 1883, p. 20; Huse v. Haines, 104 Mo. 103; 1 Revised Statutes, 1879, secs. 681, 743, 672; Hughes v. Morris, 19 S.W. 481; Owen v. Baker, 101 Mo. 407; Agan v. Shannon, 103 Mo. 661; Hughes v. McDivitt, 102 Mo. 77; Wilson v. Quigley, 107 Mo. 100; 1 American and English Encyclopedia of Law, p. 154; Salmon v. Huff, 15 S.W. 1047. The circuit court erred in refusing instructions 8 to 14 asked by Henry. (2) The Crawford lease and possession thereunder, without actual or constructive notice of the deed of trust of March 10, 1888, was a breach of the covenants in the warranty deed of January 10, 1890, to Henry, and constituted an element of defense to the $ 10,000 demand sued on in first count of Warder's petition. Blondeau v. Sheridan, 81 Mo. 545; Rawle on Covenants for Title [5 Ed.], sec. 138, p. 181, and cases cited; Kellogg v. Malin, 50 Mo. 503; Williamson v. Hale, 62 Mo. 406; Clore v. Graham, 64 Mo. 249, 255; Rawle on Covenants for Title [5 Ed.], secs. 88, 89, 291; King v. Kilbride, 58 Conn. 109; McLeod v. Skiles, 81 Mo. 604. The circuit court erred in refusing instructions 7 to 13 asked by Henry, and giving instructions 1 and 2 asked by Warder. (3) The second defense of Henry's answer to first count of petition of another suit on same cause of action in this state was good; 1 Revised Statutes, 1889, secs. 2043, 2047; Smith v. Lathrop, 84 Am. Dec. 452, and notes; 6 Wait's Actions and Defenses, p. 397, and following; Laws, 1849, p. 80, secs. 3, 6; 2 Revised Statutes, 1855, p. 231, sec. 6; Endlich on Interpretation of Statutes [1 Ed.], secs. 200, 201, 202, 204, and cases cited; State v. Boogher, 71 Mo. 631; Lee v. Hefley, 21 Ind. 99; Commonwealth v. Churchill, 5 Mass. 174; Parker v. Colcord, 2 N.H. 36; Hope v. Alley, 11 Tex. 259; Gamsley v. Ray, 52 N.H. 513; Bond v. White, 24 Kan. 45; Beyersdorf v. Sump, 4 N.W. 101; Witter v. Neeves, 47 N.W. 938; Halloway v. Halloway, 103 Mo. 283; State v. Dougherty, 45 Mo. 293, 297; Downer v. Garland, 21 Vt. 362. (4) The circuit court erred in its action respecting the demand of $ 1,775 of Warder, sued on in second count of petition, pro rata value of insurance policies assigned to Henry by Warder Grand Opera House Company. (5) The circuit court erred in giving instruction 4 for Warder as to injury to orchard. Gurley v. Railroad, 93 Mo. 451; Wiser v. Chesley, 53 Mo. 549; Mueller v. Putnam, 45 Mo. 84; 3 Sutherland on Damages [1 Ed.], p. 303, and cases cited.

Elijah Robinson for respondent.

(1) The deed of trust of March 10, 1888, was properly acknowledged and the record thereof was notice to Crawford when he took his lease. "It was not necessary that the certificate should state that the grantor was personally known to the officer, but it is sufficient if the certificate shows that the grantor was known to him." Alexander v. Merry, 9 Mo. 514; Robson v. Thomas, 55 Mo. 581. "It is not necessary that a certificate should follow the language of the statute. It is sufficient that there is a substantial compliance with the law." Hughes v. McDivitt, 102 Mo. 83. (2) The warranty deed made by the opera house company to Henry, and the contract of January 10, 1890, were parts of the same transaction and are to be construed together. Hach v. Hill, 106 Mo. 18; Brownlee v. Arnold, 60 Mo. 79; Lewis v. Ins. Co., 3 Mo.App. 372. (3) When the intention of the parties can be ascertained from the instruments, it will always control, although apparently in conflict with technical provisions. "Greater regard is to be had to the intention of the parties than to any particular words which they may have used in the expression of their intent." Ford v. Beech, 11 Q. B. 867. "The intention of the parties is the polar star in construing written instruments." Bradley v. Packet Co., 13 Pet. 89; Mauran v. Bullus, 16 Pet. 528. "In the interpretation of written contracts the rule most conspicious and wide-reaching, is that the contract should be so construed as, if possible, to carry out what the contracting parties meant." Belch v. Miller, 32 Mo.App. 386; County v. Wood, 84 Mo. 509. (4) The trial court committed no error in holding that the former suit, if dismissed before the trial of this case, constituted no defense to this action. (5) The court did not err in permitting the defendant to enter his remittitur. This was an independent branch of the case, entirely distinct and separate from other questions involved, and inasmuch as there was a separate finding on this question, there is no reason why the plaintiff should not have been permitted the amount thus found in his favor. Loyd v. Railroad, 53 Mo. 509; Sedgwick on Damages [6 Ed.], 765; Belknap v. Railroad, 49 N.H. 358; McIntyre v. Railroad, 37 N.Y. 278; Railroad v. Herbert, 116 U.S. 644; Rolling Mills Co. v. Gillham, 100 Ill. 55. (6) Again, the defendant may move an additional remittitur in this court. Hahn v. Sweazea, 29 Mo. 199; Tilford v. Ramsey, 43 Mo. 320; Loyd v. Railroad, 53 Mo. 514; Cook v. Railroad, 63 Mo. 397; Johnson v. Morrow, 60 Mo. 340; Miller v. Hardin, 64 Mo. 545; Keene v. Schnedler, 92 Mo. 527; Kinsey v. Wallace, 36 Cal. 462.


[117 Mo. 534] Black, P. J.

The petition in this case sets up three separate and distinct causes of action. The first is based upon a writing, dated twentieth of January, 1890, whereby defendant Henry agreed to pay to the plaintiff, Warder, on or before six months after date, the sum of $ 10,000, to be paid in bonds of a description fully set forth, or, at the option of Henry, in cash.

In the second, the plaintiff states that defendant is indebted to him in the sum of $ 1,775, on account of the pro rata unexpired premiums on certain fire insurance policies held by the Warder Grand Opera House Company on its property, of which property Henry became the purchaser, and which policies were duly assigned to said Henry. The plaintiff admits that he owes defendant $ 351.65 on account

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of certain other unexpired policies turned over by defendant to him. Other items were set out in this cause of action, but as they are not in dispute in this court they need not be mentioned.

It is alleged in the third cause of action that defendant, while in possession of a certain farm as the lessee of the plaintiff, unlawfully...

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