Emerson v. Treadway

• Decision Date: 19 August 1954
• Docket Number: Nos. 7150,7151,s. 7150
• Parties: Joyce EMERSON, Plaintiff-Respondent, v. Earl W. TREADWAY and C. E. Treadway d/b/a Treadway Brothers, Defendants-Appellants. Joyce EMERSON, Plaintiff-Appellant, v. Earl W. TREADWAY and C. E. Treadway d/b/a Treadway Brothers, Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 614

270 S.W.2d 614

Joyce EMERSON, Plaintiff-Respondent, v. Earl W. TREADWAY and C. E. Treadway d/b/a Treadway Brothers,

Defendants-Appellants.

Joyce EMERSON, Plaintiff-Appellant, v. Earl W. TREADWAY and C. E. Treadway d/b/a Treadway Brothers,

Defendants-Respondents.

Nos. 7150, 7151.

Springfield Court of Appeals, Missouri.

Aug. 19, 1954.

Blanton & Blanton, Sikeston, for Joyce Emerson.

Limbaugh & Limbaugh, Cape Girardeau, for Earl W. Treadway and others.

STONE, Judge.

In this action for money and supplies furnished by plaintiff, as landlord, to defendants, as tenants, plaintiff recovered judgment for $8,867.33. However, defendants offered in their answer to allow judgment to be entered against them in the sum of $6,288.10; and, although this offer was not accepted, $5,405.03 has, pursuant to stipulation of the parties, been paid upon the judgment pending appeal, so the amount presently in controversy is substantially less than $7,500 and jurisdiction of the cross-appeals, which have been consolidated, is in this court. Article V, Sections 3 and 13, Const. of Missouri; Sec. 477.040. (All Missouri statutory references herein are to RSMo 1949, V.A.M.S.)

On January 10, 1951, plaintiff and defendants entered into a written 'Farm Rental Contract For The Year 1951' (hereinafter referred to as the written contract), by which plaintiff rented to defendants certain lands in Scott County, Missouri. Defendant agreed in Article II(1) to pay as rental 'one-fourth of 410 acres of cotton grown by the tenant upon the landlord's land,' and in Article II(5) 'to pay landlord 8% interest upon all monies and supplies, if any, furnished to the tenant by the landlord.'

In his petition, plaintiff alleged 'that he has advanced money, labor and supplies,' upon which there was a balance of $9,605.35 owing by defendants. Exhibit B to plaintiff's petition, which listed such 'money, labor and supplies,' contained items numbered 1 to 35, inclusive, of which items 1 to 9, inclusive, were charges for cotton seen the fertilizer, items 10, 11 and 12 were charges for spraying, items 13 to 28, inclusive, were charges for 'expense of Mexican labor,' item 29 was a charge for 'pasture rent,' and items 30 to 35, inclusive, were credits on account. (All subsequent references herein to numbered 'items' are to the 'items' in Exhibit B.)

Upon appeal, plaintiff complains about the judgment for defendants on items 13, 17 and 22; and, defendants complain about (a) 'allowing recovery in full' to plaintiff on items 10, 11 and 12 (although defendants concede liability on those items for lesser amounts), (b) the judgment for plaintiff on items 14, 16, 18, 19, 20, 21, 23, 24, 25, 26, 27 and 28 and (c) disallowance to defendants of items 30 and 31 as credits on account. The payment of $5,405.03 to plaintiff pending appeal covered items 1 to 9, inclusive (and accrued interest thereon), for which defendants admitted liability in their answer. Plaintiff also concedes liability for item 15; and, although sharply contested upon trial, item 29 is no longer in controversy.

This cause having been tried by the court, sitting as a jury, it is our duty to 'review the case upon both the law and the evidence as in suits of an equitable nature.' Section 510.310(4); Scott v. Kempland, Mo.Sup., 264 S.W.2d 349, 355(10); Howell v. Reynolds, Mo.Sup., 249 S.W.2d 381, 387(13). Although 'due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses' [Section 510.310(4)], we cannot avoid the responsibility of independent review and consideration [Cross v. Gimlin, Mo.Sup., 256 S.W.2d 812(3); Faire v. Burke, Mo.Sup., 252 S.W.2d 289, 290(1)]. Similarly, although '(t)he judgment shall not be set aside unless clearly erronous' [Section 510.310(4); Cosentino v. Heffelfinger, 360 Mo. 535, 229 S.W.2d 546, 549(1); Truck Leasing Corp. v. Esquire Laundry & Dry Cleaning Co., Mo.App., 252 S.W.2d 108, 109(1)], we are enjoined by statute to 'give such judgment as (the trial) court ought to have given, as to the appellate court shall seem agreeable to law' [Section 512.160(3); Allen v. Allen, Mo.Sup., 270 S.W.2d 33]. 'Unless justice requires otherwise the court shall dispose finally of the case on appeal and no new trial shall be ordered as to issues in which no error appears.' Section 512.160(3).

We consider first defendants' complaints about the judgment on items 10, 11 and 12 for three aerial sprayings of defendants' cotton. Plaintiff paid Cape Central Airways $1 per acre for each spraying; and, in testifying about the first and second sprayings, plaintiff said 'I think 74cents an acre is what the materials cost.' Having due regard for the finding of the trial court against defendants on conflicting evidence offered on defendants' contention that plaintiff orally agreed to spray for $1.60 per acre, we believe that the judgment on items 10 and 11 should be on the basis of three-fourths of $1.74 per acre, it being agreed by the parties that plaintiff, as landlord, should bear one-fourth of the spraying expense.

Defendants testified that, when plaintiff talked with them about a third spraying, they told him that they had heard of nothing 'safe to use' which would kill 'red spider'; but, that plaintiff assured them that 'the stuff was guaranteed, if it didn't do us no good, it didn't cost us nothing' and that 'in any event, it wouldn't cost over $2.' Although plaintiff testified generally that he had charged defendants 'the exact amount' paid by him for spraying, we note that he denied specifically that he had quoted a firm figure of $1.60 per acre for the first and second sprayings, but that there was no corresponding denial by him of defendants' assertion that, as to the third spraying, he had told them that 'in any event, it wouldn't cost over $2.' We think that the judgment on item 12 should be on the basis of three-fourths of $2 per acre.

Defendants complain of being charged for spraying 420 acres, rather than 410 acres. Plaintiff said that he had charged for 420 acres because 'they told me they had 420.' However, the written contract provided for payment of rental of 'one-fourth of 410 acres of cotton'; and, plaintiff testified that 'I figured they had 410 acres'--'That is what I contended.' In our opinion, the record reflects no substantial basis for charging for more than 410 acres.

Defendants further contend that the court erred in allowing interest on items 10, 11 and 12 after November 9, 1951, when defendants presented to plaintiff an itemized statement which listed charges aggregating $6,941.82 (being items 1 to 12, inclusive, in this suit), reflected credits aggregating $720.74 (identical with items 32 to 35, inclusive), and showed a 'total balance paid' of $6,221.08 which was then offered to, but refused by, plaintiff. Section 514.240, cited by defendants, provides that: 'Where tender and no deposit shall be made, as provided in section 514.230, the tender shall only have the effect, in law, to prevent the running of interest or accumulation of damages from and after the time such tender was made.' But, Section 514.230 deals with '(d)eposit or tender made before suit,' and these statutes have no application to the 'tender' by defendants on November 7th after institution of this suit on October 22, 1951.

Wholly aside from the doubtful efficacy of any 'tender' after suit which ignores the costs in the pending action and does not track the procedure provided by Section 514.250 for '(t)ender in court after suit brought', defendants' action on November 7th was, for another reason, ineffective to prevent the running of interest thereafter on items 10, 11 and 12. Plaintiff said that defendants' offer to pay $6,221.08 was 'supposed to be payment in full'; and, although defendants did not so state specifically, we think it fairly inferable from their testimony that their 'tender' was for the purpose of settling the entire account between the parties. If defendants sought to tender payment of the charges in items 1 to 12, inclusive, so as to stop the running of interest thereon, they were required to observe 'that rule of the law of tender' thus stated in Johnson v. Garlichs, 63 Mo.App. 578, 583: '(T)he debtor has no right to attach as a condition to his tender anything, the acceptance of which by the creditor would force an abandonment of the creditor's position; in other words, would compel him to admit, as a consequence of his acceptance, that he had no further claim.' And, even though this might be one of those cases in which '(t)he question is * * * extremely close as to whether the tender by a debtor of less than the amount claimed by his creditor is couched in such language or made under such circumstances that the creditor must have known the tender was on the condition that it be accepted in full payment' [Bahrenburg v. Conrad Schopp Fruit Co., 128 Mo.App. 526, 107 S.W. 440, 442(2, 3)], in which event acceptance would be 'an accord and satisfaction, as a conclusion of law, the principle being that one who accepts a conditional tender assents to the condition' [Gulfport Wholesale Lumber Co. v. Boeckeler Lumber Co., Mo.App., 287 S.W. 799, 800(2)], we would not be inclined to hold that, under the circumstances of this case, defendants' 'tender' of November 7th had the legal effect of preventing the subsequent running of interest on items 10, 11 and 12.

All other issues upon appeal pertain to 'expense of Mexican labor.' Plaintiff testified that, when the written contract was signed on January 10, 1951, 'I told them (defendants) I was figuring on getting some Mexicans for myself and if they was interested, we would sign up for them and figure on getting them when we needed them'; but, although plaintiff stated that 'they (defendants) said they wanted them (Mexican laborers), would need them,' plaintiff admitted that defendants did not then ask him to get Mexican labor for them. There was no evidence of any subsequent...