Gibson v. St. Louis Agr. & Mechanical Ass'n

• Decision Date: 11 December 1888
• Citation: 33 Mo.App. 165
• Parties: FRANK S. GIBSON, Respondent, v. ST. LOUIS AGRICULTURAL AND MECHANICAL ASSOCIATION, Appellant.
• Court: Missouri Court of Appeals

33 Mo.App. 165

FRANK S. GIBSON, Respondent, v. ST. LOUIS AGRICULTURAL AND MECHANICAL ASSOCIATION, Appellant.

Court of Appeals of Missouri, St. Louis.

December 11, 1888

Appeal from the St. Louis City Circuit Court. --HON. LEROY B VALLIANT, Judge.

AFFIRMED.

Hitchcock, Madill & Finkelnburg, for the appellant.

On plaintiff's own showing, he had at best but a parol license to be on the defendant's premises. A license is not an estate in land and may be revoked at any time by the owner of the fee. See Tiedeman on Real Prop., sec. 651 et seq.; See 1 Wash. on Real Prop., *397; Wood v Leadbitter, 15 Mees. & W. 838; Desloge v Pierce, 38 Mo. 588. The revocation of a license may involve a breach of a contract; if so, the licensor makes himself liable for the damages growing out of such breach (Tiedeman, secs. 652, 653), but the licensee is nevertheless bound to quit the premises when thereunto requested by the owner of the fee. Wood v. Leadbitter, 13 Mees. & W. 838; McCrea v. Marsh, 12 Gray 211; Woodman v. Howell, 45 Ill. 367. Plaintiff should have removed his tables and departed the premises when requested by the defendant to do so, and if he had any contractual rights as against this defendant, he should have sued defendant for damages growing out of the breach of contract, but not for trespass vi et armis in being put off the premises. A license is personal in character, and cannot be assigned without the assent of the licensor. Even if Mrs. Donahoe had a license for the right here claimed, she could not assign it to plaintiff without defendant's consent. Tiedeman, sec. 651; 1 Washburn, *399, sec. 9.

Cochran, Dickson & Smith, for the respondent.

Section 3078, Revised Statutes, provides that all contracts for the renting or occupation, etc., of any stores, shops, buildings, etc., in cities, not in writing, shall be deemed tenancies from month to month. In the present case, the letting involved the right of the purchaser of a booth, as proved by the evidence and established to the satisfaction of the jury, and such other persons, not exceeding five in all, as might acquire interests in the booth, to occupy and use as stores or shops the booths themselves and also a space of ground in front of such booths. In Fuhr v. Dean, 26 Mo. 116, the court say: " A mere license may exist by parol, and ordinarily is not assignable, and is revocable unless it has been executed and the party has incurred expense on the faith of it so that he would be injured by its revocation." In the present case, not only was there an injury by plaintiff's objection, but as his loss was one of profits he can have no recovery for such loss. Again, in the same case, page 120, the court quotes with approval from Kent's Com.: * * * " If, after A. has given his consent and before B. has entered upon the land, A. changes his mind, he has a right to do so and forbid B. from entering upon his land for the specified purpose. The license is thus far executory, and may be revoked at pleasure. If B. afterwards enters he is a trespasser. If, however, B. enters before any revocation of the license, the license is then executed and it is not competent for A. to revoke it and make B. a trespasser." The cases show clearly that, under the rulings of those states with which the decisions of the supreme court of Missouri are in accord, a license, such as was granted to plaintiff, cannot be revoked while still in force by the terms of an agreement implied, having been executed in part, and while all of the conditions on which it was granted are being observed. If this be true plaintiff, when arrested, was rightfully upon defendant's land and entitled to remain there. Clement v. Durgin, 5 Me. 9; McKillip v. McIlhenny, 4 Watts 317; Wilson v. Chalfant, 15 Ohio 248; Beatty v. Gregory, 17 Iowa 114; Snowden v. Wilas, 19 Ind. 10; Lacey v. Arnett, 33 Pa.St. 169; Huff v. McCauley, 53 Pa.St. 209; Addison v. Hack, 2 Gill's R. 221; Cook v. Prigden, 45 Ga. 331; Ameriscoggin B. Co. v. Bragg, N.H. 202; Rerick v. Kern, 14 S. & R. 267, and 2 Am. L. Cases.

OPINION

THOMPSON J.

In this case we adopt the appellant's statement as follows:

This was an action for damages. The petition upon which the case was tried states the causes of action as follows:

1. Plaintiff states that defendant is a corporation duly created and existing under the laws of the state of Missouri, and having its principal offices and place of business in the city of St. Louis in said state.

Plaintiff further states that on the second day of October, 1887, plaintiff being then lawfully upon the grounds of the said defendant corporation, commonly known as the St. Louis Fair Grounds, situated in the said city of St. Louis, said defendant without any reasonable cause, and without any right or authority so to do, and against the will of plaintiff, caused plaintiff to be arrested by a police officer of the said city of St. Louis, and to be taken into custody by said officer and forced and compelled plaintiff, against his will as aforesaid, and in custody as aforesaid, to go to the office of the president of said corporation upon said grounds. That after being so taken to said office, plaintiff was by the direction of the officers and agents of defendant, without reasonable cause on the part of defendant, and against his will as aforesaid, by said officer ejected from said grounds. That by reason of the acts aforesaid plaintiff was wrongfully restrained of his liberty and imprisoned, and was thereby prevented from attending to his business and suffered great indignity, to his damage in the sum of one thousand dollars, for which with costs he asks judgment.

2. Plaintiff for a second and further cause of action states that on the second day of October, 1887, defendant, through its agents and servants, wantonly cut, broke, mutilated and destroyed certain property belonging to plaintiff, of the aggregate value of seventy-five dollars, and then being on certain grounds of the said defendant commonly known as the St. Louis Fair Grounds in the said city of St. Louis and consisting of wooden tables, hammer, paper bags, sugar, lemons, cakes and soda water, whereby said property was rendered worthless to plaintiff, to his damage in the sum of seventy-five dollars, for which sum with costs plaintiff asks judgment.

The answer contained a general denial and also an affirmative defense, which for the purpose of this appeal it is unnecessary to set out in full.

Plaintiff testified in his own behalf. The material portions of his testimony are as follows:

That there was a public sale of booths in September, 1887, for the annual fair of that year; that he attended that sale; that Mr. Green, president of the defendant, was present; that a man in the crowd asked Mr. Green if the sale of privileges this year would be extended to the purchasers of booths as in years previous, and Mr. Green said that the same privileges would be extended; that it had been customary for years previous to give booth-holders the privilege to occupy a plot of ground in front of their booths extending from the gutter which runs around the outer circle of the amphitheatre for a distance of sixteen feet outwardly to the nearest trees for the purpose of selling and serving refreshments, and that when Mr. Green used the words " outside privileges" it was understood to refer to the use of such a plot of ground; that he, plaintiff, did not make a bid for any booth himself, but that after the public sale was over he went to a Mrs. Donahoe, the purchaser of booth No. 15, and that he " purchased this piece of ground measuring sixteen feet square."

Q. Well, state to the jury from whom you purchased it and what you paid for it? A. I paid Mrs. Donahoe twenty dollars for it.

Q. Mr. Gibson, state what, if anything you obtained from Mrs. Donahoe after paying her the twenty dollars as you have stated? A. What did I get from her?

Q. Yes, sir. A. I got a receipt for my money with a ticket of admittance.

Q. Well, examine first the paper I hand you and state if you can identify it, if so, what it is? A. That is her handwriting; that is their signatures.

Q. Whose signatures? A. Mrs. Donahoe and John Donahoe.

Q. Who was John Donahoe? A. Mrs. Donahoe's husband.

Q. He was the lady's husband? A. Yes, sir.

Q. Will you look at this and see if you can identify that? A. Book 160 is the number of it, St. Louis Fair.

Q. Don't read it; I ask you what it is? A. It is the book that Mrs. Donahoe gave me that she got from the Association.

Mr. Smith: If the court please, I offer this receipt in evidence. The receipt is: " St. Louis, Mo., September 24th, 1887. Sold for the sum of twenty dollars to F. B. Gibson the outside privilege of booth No. 15 of the St. Louis Fair for 1887 with one ticket of admittance. Received payment in full. Mrs. Donahoe, John Donahoe."

The book of tickets is endorsed on the outside, " St. Louis Fair Privilege ticket, account of booth 15. Rolla Wells, treasurer. No. 160."

I will read one of the tickets, " St. Louis Fair 1887. Good for this day only. Not good if detached by other than the T. K. T.--Ticket Collector." Then printed on the back--" A transfer of these tickets will cause a forfeiture of the same."

That after making these arrangements with Mrs. Donahoe, he proceeded to place some tables on the plot of ground opposite booth 15; also purchased supplies for the sale of lemonade soda water and cakes; used the booth-tickets to gain admission to the grounds, and began business on the first day of the fair, whereupon the superintendent of the fair notified him that he could not be allowed to occupy the space where he had located; that it was against the rules to occupy that space, and that he must move away; that plaintiff expostulated with the...