Benton v. Alcazar Hotel Co.
| Citation | 194 S.W.2d 20,354 Mo. 1222 |
| Decision Date | 08 April 1946 |
| Docket Number | 39528 |
| Parties | Carlton R. Benton, Administrator of the Estate of W. H. Davis, Deceased, et al., v. Alcazar Hotel Company, a Corporation, Appellant, Milner Hotels, Inc., a Corporation |
| Court | United States State Supreme Court of Missouri |
Rehearing Denied April 30, 1946.
Appeal from Jackson Circuit Court; Hon. Allen C. Southern Judge.
Affirmed and remanded (with directions).
Joe Levin, B. T. Hurwitz and Chas. N. Sadler for appellant.
(1) Appellant is clearly entitled to loss of profits for quartering soldiers, from February 15, 1943, to December 31 1943. Security Stove Mfg. Co. v. Am. Ry. Express Co., 51 S.W.2d 572; Smalley v. Wunderlich, 62 S.W.2d 919; Young v. Tilley, 190 S.W. 95; Normand v. Vanderberg, 138 S.W. 47; Hedden v. Schneblin, 104 S.W. 687; Brandt v. Schuchmann, 60 Mo.App. 70; Hedrick v. Perry, 102 F.2d 802; See also cases cited under Point (2). (2) The universal rule in cases of breach of contract is that the measure of damages should be such as will, as near as may be, restore the injured party all he has lost, and all that he in reasonable probability would have gained; or, in other words, the compensation should be equal to the injury. Security Stove Mfg. Co. v. Am. Ry. Express Co., 51 S.W.2d 572; Smalley v. Wunderlich, 62 S.W.2d 919; Young v. Tilley, 190 S.W. 95; Normand v. Vandenberg, 138 S.W. 47; Hedden v. Schneblin, 104 S.W. 687; Brandt v. Schuchmann, 60 Mo.App. 70; Hammond v. Beeson, 20 S.W. 474; Boland v. Prentiss Co., 249 S.W. 95; Startzell v. Johnson, 253 S.W. 52; Hedrick v. Perry, 102 F.2d 802; Miller v. Robertson, 266 U.S. 243, 69 L.Ed. 265, 45 S.Ct. 75; Hobbs v. Davis, 30 Ga. 425; Williston on Contracts (Rev. Ed. 1937), p. 3702, sec. 1338; 25 C.J.S., p. 519, sec. 43, p. 524, sec. 46, p. 533, sec. 50. (3) Appellant is entitled to recover from plaintiff the value of the inventory shortage. See authorities cited under Point (2). (4) Appellant is entitled to recover from plaintiffs for damages to building, plumbing, fixtures, etc., sufficient to put said building, etc., in the condition it was represented to be in at the time the contract was signed. See authorities cited under Point (2). (5) Appellant is entitled to recover its necessary expenses, including reasonable attorneys' fees made necessary to defend and protect its rights herein. Weil v. Richardson, 35 S.W.2d 369; Mancuso v. Western Automobile Co., 296 S.W. 161; 25 C.J.S. 533, sec. 50. (6) The attorneys for appellant are entitled to a lien upon the amount recovered for their fees, and entitled to have same paid out of the proceeds of any recovery. Sec. 13337, R.S. 1939. (7) This being an equity action, it is heard de novo by this court, and such decree or judgment should be entered as should have been entered by the trial court. Twedel v. Treasure, 44 S.W.2d 217; Seested v. Applegate, 26 S.W.2d 797; Burroughs v. Laswell, 108 S.W.2d 705; Snell v. Harrison, 83 Mo. 651; New England Loan & Trust Co. v. Browne, 76 S.W. 954; Hamra v. Simpson, 108 S.W.2d 777.
H. M. Langworthy and Allan M. Fisher for respondents Carlton R. Benton, Administrator, et al.; Raines, Glenn & Garlinghouse of counsel.
(1) Alcazar Hotel Company, being in default under its contract, cannot maintain an action for damages under it. Cory v. Conqueror Trust Co., 86 S.W.2d 611; 66 C.J. 805, sec. 438; 66 C.J. 816, sec. 464; Sandusky v. Waller, 272 S.W. 1045; Paulson v. Hartzell, 93 S.W.2d 1095; Doerner v. St. Louis Crematory, 80 S.W.2d 721. (2) Alcazar Hotel Company, having inspected the premises prior to purchase, knew of the condition of the building, and cannot claim to have relied on and been misled by statements of the sellers. It neither pleaded nor proved such allegations. Hoester v. Sammelmann, 101 Mo. 619, 14 S.W. 728; W.C. Hardesty Co. v. Schaefer, 139 S.W.2d 1031; Morse v. Rathburn, 49 Mo. 91; Langdon v. Green, 49 Mo. 363; Brown v. K. C. Southern, 187 Mo.App. 104, 173 S.W. 73; 66 C.J. 1115. (3) Alcazar Hotel Company entered into the contract of October 3, 1942, subject to the lease and occupancy of Milner Hotels, Inc., and the wrongful acts complained of by Alcazar were the acts of Milner and not the plaintiffs. 66 C.J. 651, 658; Gwin v. Waggoner, 98 Mo. 315, 11 S.W. 227; Smith v. Riordan, 213 S.W. 61; Hahn v. Cotton, 136 Mo. 216, 37 S.W. 919; Homan v. Employers Reinsurance, 345 Mo. 650, 136 S.W.2d 289. (4) Alcazar was only entitled to the furniture in the hotel "belonging to" the sellers. (5) Milner prevented plaintiffs and Alcazar from obtaining possession and is liable for damage to the building. W.C. Hardesty Co. v. Schaefer, 139 S.W.2d 1031. (6) Alcazar Hotel Company had no contract to house soldiers in the Reid Hotel and consequently was not damaged in that regard. Alcazar did not plead special damages, and therefore cannot recover them. W.C. Hardesty Co. v. Schaefer, 139 S.W.2d 1031; Hoester v. Sammelmann, 101 Mo. 619, 14 S.W. 728; Windsor v. International Life, 325 Mo. 772, 29 S.W.2d 1112; 17 C.J.S., p. 310, sec. 1; Cronocker v. Runge, 98 S.W.2d 603. (7) There is no evidence that B. F. Weinberg had any authority from Alcazar Hotel Company, a corporation, to act in negotiating a contract. 2 C.J.S., p. 1025; Lajoie v. Rossi, 37 S.W.2d 684. (8) It is admitted that Alcazar is in default under its contract with plaintiffs, and plaintiffs are entitled to a judgment therefor. (9) The damages assessed by the court against Milner are adequate. Sec. 2966, R.S. 1939; Tobin v. Wood, 159 S.W.2d 287. (10) The decree in this case follows the decision of the Supreme Court and disposes of all the issues. Sec. 1137, R.S. 1939; City of Joplin v. Jasper County, 349 Mo. 441, 161 S.W.2d 411. (11) The time for performance of a contract runs from its date. 13 C.J. 583; 2 Daniel on Negotiable Instruments (7 Ed.), p. 727. (12) Attorneys for Alcazar Hotel Company are not entitled to a lien for their fees because there is no showing that they have a contract for services and they have not asserted their lien in any way. State ex rel. Anderson v. Roehrig, 8 S.W.2d 998; Nelson v. Massman, 120 S.W.2d 77, 344 Mo. 1003; Secs. 13337, 13338, R.S. 1939. (13) Alcazar Hotel Company, having transferred and assigned its interest in the contract of October 3, 1942, is not the real party in interest, and has not been damaged. Sec. 849, R.S. 1939; Gay v. Orcutt, 69 S.W. 295; Guerney v. Moore, 32 S.W. 1132. (14) Alcazar Hotel Company is not entitled to recover attorneys' fees. 25 C.J.S., sec. 50, p. 531; Williams v. Morris, 263 S.W. 859.
Hook & Thomas, Harry L. Thomas and Inghram D. Hook for Milner Hotels, Inc.
(1) Damages for loss of profits were too speculative. United Iron Works v. Twin City Ice & Creamery Co., 295 S.W. 109, 317 Mo. 125; Spruce Co. v. Mays, 62 S.W.2d 824, 333 Mo. 582. (2) There should have been no allowance for loss of furniture. It was the legal duty of the owners to repair the courtyard and roof. Jones on Landlord and Tenant, secs. 396, 406. (3) The liability of the owners to maintain their hotel still remained upon them in spite of any holding over. Otherwise, a holding over would require the one holding over to reconstruct the building so held. Jones on Landlord and Tenant, sec. 555; Haensler v. Holman, etc., Co., 49 Mo.App. 631. (4) Under the law nothing can be allowed for attorneys' fees and expenses of litigation in a suit of this character. 25 C.J. 532; 20 C.J., pp. 456, 457, 458, 459; Johnson v. United Rys. Co. of St. Louis, 152 S.W. 362, 247 Mo. 326; Burns v. Ames Realty Co., 31 S.W.2d 274. (5) The original action was for a declaratory judgment and sounded in equity. Liberty Mutual Ins. Co. v. Jones, 130 S.W.2d 945, 344 Mo. 932. (6) The mandate of the lower court was consistent with the directions and did carry out the directions of this court. Benton v. Alcazar Hotel Co., 280 S.W.2d 33. (7) This is an equity case and the presumption is that the chancellor did not consider immaterial evidence. Nevil v. Wahl, 65 S.W.2d 123. (8) The assignment must disclose what objections were made thereto when offered. Assignments of error as to admitting testimony will be overruled where the testimony claimed to be improperly admitted is not pointed out. Stratman v. Norge Co., 124 S.W.2d 572, 233 Mo.App. 590; Gardner v. Robertson, 106 S.W. 645, 208 Mo. 605. (9) The reasonable rental value may be fixed at a different rate -- either greater or less -- from that of the rent which the tenant has been paying although it is proper to have the stipulated rent in determining the rental value and it has been said that ordinarily the agreed rent would be evidence of the rental value. Barlow v. Hoffman, 86 P.2d 289.
Van Osdol, C. Bradley and Dalton, CC., concur.
Action under the Declaratory Judgment Act, Art. 14 Chap. 6 R.S. 1939, Mo. R.S.A. Art. 14, Chap. 6. This is a second appeal. See now Benton v. Alcazar Hotel Company, 352 Mo. 836, 180 S.W. 2d 33, where, upon the first appeal, a judgment of the trial court was reversed and the cause remanded for further proceedings not inconsistent with the opinion. Upon remand the trial court entered a provisional decree under date of May 22, 1944, in accordance with which decree the possession of the property involved (Reid Hotel) was taken over by defendant Alcazar Hotel Company on the following May 31st. Thereafter, the case was set for further hearing upon issues of damages, and upon other issues raised by plaintiffs' petition for further relief filed subsequently to the remand; evidence was heard; and a final judgment and decree was rendered. Among other issues resolved by the final judgment and decree were the issues of damages for delay in surrendering the possession of the property, for injury to the building, and for removal of fixtures. Upon these issues the trial court awarded defendant Alcazar Hotel Company $ 23,944.33 damages...
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