Hume v. Hale

• Citation: 146 Mo. App. 659,125 S.W. 871
• Parties: HUME v. HALE et al.
• Decision Date: 01 February 1910
• Court: Missouri Court of Appeals

125 S.W. 871

146 Mo. App. 659

HUME v. HALE et al.

St. Louis Court of Appeals. Missouri.

February 1, 1910.

1. APPEAL AND ERROR (§ 852) — REVIEW — THEORY OF CAUSE.

Where both parties tried a case according to a particular theory, it would be determined on appeal in accordance therewith, without determining whether the theory was correct.

2. BILLS AND NOTES (§ 432) — PAYMENT IN WORK — BREACH OF CONTRACT.

Where a lease provided that defendants should give two rent notes each year, but should have the right to pay one of them in work for plaintiff, defendants having notified plaintiff that they elected to pay one of the notes so given in work, plaintiff could not, by refusing to designate the work they should do, prevent them from doing the work and recover in money.

3. DAMAGES (§ 124) — CONTRACT — BREACH.

Where defendants notified plaintiff that they elected to pay one of their rent notes in work, as they were entitled to do under their lease, and defendants had men hired who were ready and able to work, as were defendants themselves, but plaintiff refused to designate the work, and defendants could obtain no work that year either for themselves or their men from others, the measure of their damages by plaintiff's breach of the lease contract was the amount of the rent they were to pay in work.

4. CONTRACTS (§ 278) — CONDITIONS — BREACH.

Where plaintiff leased a farm to a father and his son jointly for a term of years, the lessees being entitled to pay one of the annual rent notes in work, the fact that the son moved off the farm did not constitute a default on his part, he having testified that he was ready and willing to help his father do the work required by the lease, there being no evidence that he had repudiated the contract.

5. LANDLORD AND TENANT (§ 223) — ACTION FOR RENT — COUNTERCLAIM — BREACH OF LEASE — FRAUD.

Where a lease provided that if the lessor sold the property between December and March of any year he should pay the lessees $200 for relinquishing possession, but if the sale was made between March and December they were to surrender without payment, and the lessor notified them of a sale of the premises on November 29th, and required possession by February 28th, following, when in fact no sale had been made, the lessees were entitled to counterclaim damages for the fraud in an action by the landlord on notes given for rent.

6. APPEAL AND ERROR (§ 882) — RIGHT TO ALLEGE ERROR — INVITED ERROR.

Where plaintiff asked an instruction submitting an issue of mistake in the execution of a lease to the jury, he could not object on appeal that the court did not determine such issue.

7. APPEAL AND ERROR (§ 1048) — PREJUDICE — WITNESSES — INCOMPETENCY.

Plaintiff was not prejudiced by the incompetency of the wife of one of the defendants who was permitted to testify to a fact as to which there was no controversy; her testimony not being such as to probably influence the jury against plaintiff.

8. APPEAL AND ERROR (§ 730) — ASSIGNMENTS OF ERROR — SUFFICIENCY.

Assignments that the court erred in its rulings on certain requests for instructions were insufficient where they failed to particularize in what the error consisted.

Appeal from Circuit Court, Scotland County; Chas. D. Stewart, Judge.

Action by James R. Hume against George W. Hale and others. Judgment for defendants, and plaintiff appeals. Affirmed.

This action was instituted on two promissory notes, each dated January 1, 1902, due one year after date, promising to pay $332.50 for value received, with interest at the rate of 8 per cent. per annum from maturity, compounded if not paid annually, and containing a recital that the makers should pay an attorney's fee if the note was collected by law. The two notes were signed by defendants George W. and Charles L. Hale, had been indorsed in blank by James R. Hume and transferred to the Kahoka Savings Bank shortly after their execution, had remained the property of that bank for more than a year, and then had been reassigned to James R. Hume, the original payee. The petition is in two counts, one on each note, and each count alleges, among other matters, the execution of the note declared on and its contents; that it was given for rent for the year commencing March 1, 1902, and terminating February 28, 1903, of a described farm containing 332½ acres in Clark county which plaintiff had leased to defendants, and that $50 would be a reasonable attorney's fee to collect it.

The answer was drawn in the form of four counts, of which the first admitted the execution of the notes in suit and that plaintiff was the owner of the same, but denied every other allegation of the petition. The second count merely averred defendants had fully paid and discharged one of the notes. The third count said plaintiff and defendants on December 3, 1899, entered into a written contract whereby plaintiff leased to defendants the farm described in the petition for a term to begin January 1, 1900, continue for five years, and end December 31, 1904; that in said contract defendants agreed they would execute and deliver to plaintiff two notes each year for the sum of $332.50, respectively, payable in one year from their date; that by the terms of the lease one of said notes should be paid in cash, and the other in labor done on the premises by defendants, or in cash, at the election of defendants, said labor to be designated by plaintiff; that the written lease further provided plaintiff might sell the farm during the term of the tenancy, and, if he should sell during said term at a date between December 1st and March 1st of any year, plaintiff agreed to pay defendants the sum of $200, and on payment thereof defendants agreed to deliver possession of the premises to plaintiff and remove from them; that the lease further said, if plaintiff sold the premises at any other time than between the two dates mentioned, defendants agreed to deliver possession to him; that on November __, 1902, plaintiff notified defendants he had sold the premises and asked them to give possession as per their contract; that defendants, on receiving said notice and demand, relying on the statements contained in it and believing they were true, and to comply with their contract in that regard, removed from the farm and delivered possession to plaintiff in March, 1903; that, at the time plaintiff so notified defendants he had sold the farm and demanded possession, he had not sold it, and at the commencement of this action was still the owner; that plaintiff notified defendants he had sold and demanded possession for the fraudulent purpose of deceiving defendants and obtaining possession of the farm, and for the purpose of cheating defendants out of the value of the rent of the farm, to wit, for the years 1903 and 1904; that, when said notice was given, defendant's term did not expire until January, 1905, and by reason of the fraudulent conduct of plaintiff they were deprived of the unexpired portion of the term, or two years; that the reasonable yearly rental of said farm was $1,000, and under their agreement to pay $650 for it to plaintiff, and by reason of plaintiff's fraudulent conduct aforesaid, defendants were defrauded out of $350 each year, or the difference between the rent they were to pay and the value of two years of the term, or the sum of $700; that they were also put to an expense of $100 in removing their stock, machinery, goods, and household effects from the farm, and the further expense of $50 in procuring another place to which they might move; wherefore defendants prayed judgment against plaintiff for $850 as a counterclaim. The fourth count of the answer set up the contents of the written lease substantially as set up in the third count, alleged defendants had agreed to execute two notes of $332.50 each at the beginning of each year for the rent of said year, and by the terms of said lease the notes were to be paid in cash or in labor and improvements on the farm, and if defendants elected to do work in payment of a note, they were to do it at the direction of plaintiff. The further averment was that the notes declared on in this action were given under the lease contract for the rent of the premises for the year ending March 1, 1903, and were due and payable on the 1st day of January, 1903; that during the year defendants elected to pay one of the notes in work on the premises and requested plaintiff to designate the work desired, notifying him they were willing and ready to do it; but plaintiff, in disregard of his duty under the contract, and in violation of the terms thereof, refused to designate what work should be done on the farm, and refused to point out to defendants any work for them to do in payment of said note so they might discharge themselves from liability; wherefore defendants averred they were damaged by this violation, of the contract by plaintiff in the sum of $350, for which sum they asked judgment.

In reply plaintiff denied defendants had paid or discharged either of the notes as alleged in the second count of the answer. In reply to the third count of the answer plaintiff admitted he had represented to defendants the farm had been sold, but denied he did so for the purpose of cheating them out of the value of the rent of the farm for the years 1903 and 1904; alleged further the rent received for the farm was its full value; alleged defendants' term of lease would have expired March 1, 1904, according to the true understanding of the parties, but by mistake in writing the lease it was so written as to fix March 1, 1905, as the date of expiration. Plaintiff denied defendants were defrauded of two years of their term by representations of plaintiff, denied the reasonable value of the yearly rental of the farm was $1,000, denied the difference in said value and what defendants would pay was $350 a year, denied defendants were put to $100 expense in removing from the premises, or $50 in procuring...