Herrick Motor Co. v. Fischer Oldsmobile Co.

• Decision Date: 25 October 1967
• Docket Number: No. 8666,8666
• Citation: 421 S.W.2d 58
• Parties: HERRICK MOTOR COMPANY, a corporation, Plaintiff-Appellant, v. FISCHER OLDSMOBILE COMPANY, Inc., Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 58

421 S.W.2d 58

HERRICK MOTOR COMPANY, a corporation, Plaintiff-Appellant, v. FISCHER OLDSMOBILE COMPANY, Inc., Defendant-Respondent.

No. 8666.

Springfield Court of Appeals, Missouri.

Oct. 25, 1967.

Robert D. Durst, Springfield, for plaintiff-appellant.

Lilley & Cowan, Max W. Lilley, Springfield, for defendant-respondent.

PER CURIAM.

In this suit in equity for reformation of the cancellation paragraph of a lease, plaintiff lessor, Herrick Motor Company, a corporation, appeals from the decree finding the issues in favor of defendant lessee, Fischer Oldsmobile Company, Inc. By the lease sought to be reformed (hereinafter referred to as the 1964 Fischer lease) which was executed under date of Februray 26, 1964, plaintiff let to defendant three contiguous tracts (hereinafter referred to as the leased premises) in Springfield, Missouri, for a term of three years from February 28, 1964, to February 28, 1967, at a monthly rental of $1,000. The cancellation paragraph in that lease provided: 'The Lessee may cancel this lease on March 1, 1964, or at any time thereafter, by giving Lessor Sixty (60) days written notice prior to such cancellation or upon the payment of Two Thousand Five Hundred Dollars ($2,500.00) to Lessor.' (All emphasis herein is ours.)

In Count I of plaintiff's 'Amended Petition to Reform Contract,' upon which the case was tried, it was averred that 'plaintiff, as lessor, and defendant, as lessee, entered into an agreement and (sic) for the lease of the building' on the leased premises (an automobile showroom and garage constructed in 1951) 'for a term of three years * * * and mutually agreed upon a cancellation provision' in the same language as that quoted above, excepting only for substitution of the conjunction 'and' for the italicized disjunctive particle 'or.' Plaintiff further asseverated that the cancellation paragraph 'was incorrectly written and did not express the intent or actual agreement of the parties, but was a mutual mistake of fact in the writing therein of 'or' instead of 'and"; and that such 'mistaken and erroneous insertion of the word ('or') instead of ('and') was first observed by plaintiff after the attempted cancellation of the lease (by defendant lessee giving sixty days' written notice thereof on March 31, 1965) and the refusal of the defendant to pay' $2,500 in addition to the rental for sixty days thereafter. The prayer of Count I was for a decree 'directing and compelling defendant to execute a new and reformed contract which shall properly contain the word 'and' instead of 'or,' or if said defendant fails to do so that the court make a finding that the agreement of the parties * * * include the word 'and' in lieu of 'or,' and that the said contract be reformed by the court to comply with the mutual intent of both parties * * * and for such other relief including costs, as to the court seems just and proper.'

In Count II of said amended petition, plaintiff first incorporated by reference (Rule 55.14) all of the above allegations in Count I clearly intended to plead a cause of action for reformation on account of 'a mutual mistake of fact,' and then added other averments just as plainly designed to plead a cause of action for reformation on the ground of refendant's fraud, to wit, that 'said lease and contract as written was erroneously, improperly and incorrectly drawn by defendant and was contrary to agreement between the parties and was written by defendant or defendant's agent with the intent to defraud the plaintiff of it's (sic) benefits under the agreement by changing the word 'and' * * * to the word 'or' and said deceitful action of the defendant did in fact mislead and decieve (sic) the plaintiff.' (All references to rules are to the Supreme Court Rules of Civil Procedure V.A.M.R.) The prayer of Count II was for a decree 'finding that the actual and correct agreement of the parties * * * included the word 'and' and not 'or' and that the said contract be reformed by the court to comply with the actual agreement of all the parties thereto * * * and for such other relief including costs as to the court seems just and proper.'

On August 24, 1966, the issues joined upon plaintiff's amended petition and defendant's answer thereto were tried and, written findings of fact and conclusions of law having been requested, the cause was taken under advisement. On December 8, 1966, the court filed such written findings of fact and grounds for decision (Rule 73.04(b)), covering thirteen pages in the transcript on appeal, which included an accurate and comprehensive review of the facts, a sound and scholarly exposition of applicable legal principles, and the well-reasoned conclusion that 'judgment should be in favor of defendant and against plaintiff on each count of plaintiff's amended petition.' On December 19, 1966, plaintiff filed its motion for new trial, which closed with the prayer that the court 'find for plaintiff and against the defendant on both counts of plaintiff's amended petition * * * or in the alternative * * * grant a new trial in this case.'

While plaintiff's motion for new trial was pending, to wit, on January 6, 1967, plaintiff filed its 'Motion to Amend Pleadings and for Judgment' (hereinafter referred to as the motion to amend) in which it sought leave (1) to amend the prayers of Counts I and II of its amended petition 'by adding at the end of (each prayer) the words 'and for judgment (sic) in the amount of Twenty-Five Hundred Dollars ($2,500.00),'' and (2) to add Count III to the amended petition (a) declaring 'that the only reasonable and logical interpretation of the word 'or' as contained in (the cancellation paragraph) is as a conjunctive rather than as a disjunctive and therefore the defendants (sic) are obligated to pay to the plaintiffs (sic) Twenty-Five Hundred Dollars ($2,500.00), in accordance with the terms of this lease' and (b) praying for a 'decree of this court interrupting (sic) the word 'or' as contained in (the cancellation paragraph) as a conjunctive rather than as a disjunctive and for judgment (sic) against defendant in the amount of Twenty-Five Hundred Dollars ($2,500.00) * * *.' In the language of its brief, plaintiff thereby sought 'to reform (the cancellation paragraph) * * * by an interpretation of the word 'or' to mean 'and' or 'and also,' and judgment for $2,500.'

On January 12, 1967, the court entered an order overruling plaintiff's motion to amend and then its motion for new trial. On January 16, 1967, plaintiff filed its notice of appeal 'from the judgment of the Circuit Court, Division III, Greene County, Missouri, entered in this action on the 8th day of December, 1966'; and, on the same day, plaintiff's counsel delivered to the court reporter an order in writing for the transcript on appeal. Rule 82.19.

Two days later, to wit, on January 18, 1967, the court 'on its own motion (reconsidered) its ruling made on 1--12--67 overruling plaintiff's motion to amend pleadings * * * (sustained) said motion's request for leave to amend 1st amended petition by adding Count III * * * (considered) Count III on the evidence and (rendered) judgment in favor of defendant and against plaintiff on Count III * * *.' On January 25, 1967, plaintiff filed another motion for new trial, closing with the prayer that the court 'find for plaintiff and against defendant on each of the three counts of plaintiff's amended petition * * *,' which said motion was overruled by order entered on February 3, 1967.

From the foregoing resume, it will be seen that, when the case was tried upon the first amended petition, plaintiff sought reformation of the cancellation paragraph in the 1964 Fischer lease on the ground of either an alleged mutual mistake of fact or defendant's alleged fraud. Subsequent to trial of the case on August 24, 1966, entry of judgment for defendant on December 8, 1966, and the filing of plaintiff's motion for new trial on December 19, 1966, plaintiff sought leave, by its motion to amend filed on January 6, 1967, to plead and recover on still another ground of reformation, characterized in the language of plaintiff's brief as 'to reform (the cancellation paragraph) * * * by an interpretation of the word 'or' to mean 'and' or 'and also,' and judgment for $2,500.' By its order of January 12, 1967, overruling the motion to amend, the court refused to permit this after-trial introduction of a third theory; and, its motion for new trial also having been overruled on January 12, plaintiff thereafter filed on January 16 its notice of appeal 'from the judgment * * * entered in this action on the 8th day of December, 1966.' Of course, neither the court's findings and judgment of December 8 nor plaintiff's motion for new trial of December 19, 1966, mentioned or referred to plaintiff's motion to amend subsequently filed on January 6, 1967. So plaintiff's notice of appeal could not reasonably be construed as invoking or authorizing appellate review of the court's order of January 12, 1967, overruling the motion to amend; and, in any event, no assignment of error with respect to the overruling of that motion was preserved for appellate review. Rule 79.03.

We are mindful that, after the filing of plaintiff's notice of appeal on January 16, 1967, to wit, on January 18, the court sua sponte undertook to '(reconsider) its ruling made on 1--12--67 overruling plaintiff's motion to amend pleadings,' grant leave to amend plaintiff's first amended petition by adding Count III, consider that count 'on the evidence,' and then '(render) judgment in favor of defendant and against plaintiff on Count III.' However, the judgment of December 8, 1966, became final when the trial court overruled plaintiff's motion for new trial on January 12, 1967 (Rule 82.05(a)); and the timely filing of plaintiff's notice of appeal on January 16, accompanied by payment of the docket fee (Kattering v. Franz, 360 Mo. 854, 231 S.W.2d 148(2)), was the only...