Johnson v. Crowley

• Decision Date: 03 December 1918
• Docket Number: No. 16289.,16289.
• Citation: 207 S.W. 235
• Parties: JOHNSON et al. v. CROWLEY et al.
• Court: Missouri Court of Appeals

207 S.W. 235

JOHNSON et al. v. CROWLEY et al.

No. 16289.

St. Louis Court of Appeals. Missouri.

December 3, 1918.

Rehearing Denied January 7, 1919.

Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.

"Not to be officially published."

Action by Rosa Johnson and another against Kate Crowley and another. Judgment for plaintiffs, and defendants appeal. Reversed and remanded.

See, also, 191 S. W. 690.

Bishop & Cobbs and Harry A. Frank, all of St. Louis, for appellants.

Eugene Hale, of St. Louis, for respondents.

ALLEN, J.

This is an action to recover damages claimed to have been suffered by plaintiffs by reason of the alleged breach of a covenant or covenants contained in a warranty deed executed by defendants to plaintiffs on August 2, 1912, conveying to plaintiffs certain real estate in the city of St. Louis. The trial below, before the court without a jury, resulted in a judgment for plaintiffs in the sum of $457.25, from which the defendants prosecute the appeal.

Respondents challenge the sufficiency of the abstract, and assert, among other things, that there is no bill of exceptions before us. The point appears to be well taken, since it does not appear by the record proper, as abstracted, that a bill of exceptions was ever filed. However, it is earnestly contended by learned counsel for appellants that the petition fails to state a cause of action, a matter arising on the face of the record proper.

The petition, omitting caption, is as follows:

"Plaintiffs for cause of action aver that, on the 2d day of August, 1912, the defendants, Kate and Francis Crowley, by their warranty deed of the date last aforesaid, herewith filed and marked `Exhibit A,' for the consideration shown therein, conveyed and warranted to plaintiffs, their heirs and assigns, fee-simple title to certain real estate in the city of St. Louis, aforesaid, more fully described as follows, to wit:

"And the defendants covenanted with plaintiffs for themselves, their heirs, executors, and assigns to warrant and defend the title to the premises so conveyed against the claim of every person whomsoever, and plaintiffs say that they performed each and every condition on their part, but the defendants breached the said warranty in said deed and forced plaintiffs to file suit in law and equity in the circuit court of the city of St. Louis, as more fully appears from the judgment and decree in said cause of action entitled as follows: `State of Missouri, City of St. Louis — ss.: In the Circuit Court. Rosa Johnson and Charles R. Johnson, Plaintiffs, v. Kate Crowley, Francis Crowley and John McElroy, Defendants. October Term, A. D. 1912. No. 79921. Division No. 2.'

"In which cause of action, plaintiffs prevailed, as more fully appears from the decree of this court, Division No. 2, a certified copy of which is herewith filed and marked `Exhibit A.'

"That defendants appealed from said decision to the Supreme Court of the state of Missouri, where said cause of action was entitled as follows, to wit: `In the Supreme Court of Missouri, Division No. 1. Rosa Johnson and Charles R. Johnson (Plaintiffs) Respondents, Ben E. W. Ruler, Trustee for Matilda Johnson, Matilda Johnson, and West St. Louis Trust Company, a corporation, and its Assigns (Defendants) Respondents, v. Kate Crowley and Francis Crowley, Appellants. October Term, A. D. 1916. No. 17880.'

"And where, upon full hearing, plaintiffs again prevailed, as more fully appears from the decision and mandate of the Supreme Court in said cause, now in evidence herein, before this court as part of the files in case No. 79921.

"And plaintiffs aver that the aforesaid breach of defendants in placing said McElroy in possession of said premises in violation of their aforesaid covenants with plaintiffs was willfully and deliberately made for the express purpose of damaging plaintiffs, and that the said covenants by conveyance to defendant McElroy was the proximate cause of plaintiffs' consequential damages subsequently sustained as the direct result of the breaching of their covenants with plaintiffs, and subjected plaintiffs to divers and sundry items of expenses in prosecuting their said cause of action in this court and in following said cause of action to the Supreme Court on defendants' appeal.

"Plaintiffs therefore show that the costs which they have laid out and become liable for in connection with said causes of action, to wit: Counsel's fees in the circuit court of St. Louis, cause No. 79921. Counsel's fees in said cause on appeal in the Supreme Court of the state, of Missouri, here mentioned in 17880. Expenses of counsel on three trips to Jefferson City in connection with said cause at an expense — that plaintiffs have suffered damages and interest and tax bills on the premises involved in this litigation pending final adjudication, $752.75.

"And plaintiffs further aver that all of said expenses were immediately due to the result of defendants' breach of covenants and consequential damages thereto; that the same were all necessary and the usual customary charges for like services and expenditures at the time they were so contracted for and laid out.

"Wherefore plaintiffs pray judgment against the defendants for said damages in the sum of $752.75, and for costs."

It will be observed that the petition, after alleging that the defendants covenanted to warrant and defend the title to the premises mentioned, avers generally that:

"The defendants breached the said warranty in said deed and forced plaintiffs...