Kellerman Contracting Co. v. Chicago House Wrecking Co.

• Decision Date: 06 April 1909
• Citation: 118 S.W. 99,137 Mo. App. 392
• Parties: KELLERMAN CONTRACTING CO. v. CHICAGO HOUSE WRECKING CO.
• Court: Missouri Court of Appeals

118 S.W. 99

137 Mo. App. 392

KELLERMAN CONTRACTING CO. v. CHICAGO HOUSE WRECKING CO.

St. Louis Court of Appeals. Missouri.

April 6, 1909.

Rehearing Denied April 20, 1909.

1. CONTRACTS (§ 169) — CONSTRUCTION — EXPLAINING AMBIGUITY.

The circumstances under which a contract is made, the situation of the parties, and the facts of which they were cognizant at the time may be resorted to if the writing is ambiguous.

2. SALES (§ 150)—REMOVAL OF PROPERTY— IMPLIED CONTRACT.

A bare contract of sale does not imply a promise by the buyer to remove the property from the seller's premises or other locality where it happens to be.

3. SALES (§ 150)—DELIVERY AND ACCEPTANCE —REMOVAL OF PROPERTY.

A sale binds the buyer to accept the property when tendered under the contract; and delivery and acceptance pass the title with the burden of ownership, which will include, under some circumstances, the removal of the property.

4. SALES (§ 85) — CONSTRUCTION OF CONTRACTS —REMOVAL OF PROPERTY.

By its concession the German government was bound to remove its buildings and constructions from the site and grounds of the Louisiana Purchase Exposition, and clean the place and restore it to its original condition as far as practicable. Pursuant to its contract with plaintiff contracting company, the latter was to have the buildings which it built, and was to wreck and remove them. Plaintiff sold the buildings to defendant wrecking company by a written contract, whereby the latter merely accepted a proposition of sale for a certain price, payment to be made when the property was delivered. Held, that defendant did not thereby agree to clear the site of all material as plaintiff was bound to do.

5. EVIDENCE (§ 441) — CONSTRUCTION — PRELIMINARY AGREEMENTS—MERGER.

Such a provision could not be imported into the written contract by virtue of a prior oral promise.

6. SALES (§ 85)—CONSTRUCTION AND OPERATION OF CONTRACTS — DUTY TO REMOVE PROPERTY.

The buildings and material composing them being turned over to defendant and accepted, it was incumbent on it to take the property away, but this duty was a consequence of the contract, and not a term of or undertaking in it, and was imposed by law as an incident of ownership, and not as a part of the agreement, which related solely to a sale.

7. SALES (§ 369)—FAILURE TO REMOVE PROPERTY —REMEDY OF SELLER.

The remedy for a buyer's failure to perform his duty imposed by law to remove the property sold sounds in tort in the nature of the common-law remedy of trespass on the case, though this does not mean that the tort may not be waived, and action maintained on an implied assumpsit.

8. PLEADING (§ 49)—PETITION—CHARACTER OF ACTION—HOW DETERMINED.

The character of an action is determined from the express averments of the petition.

9. JUDGMENT (§ 249)—CONFORMITY TO PLEADINGS.

If redress ex delicto is desired, there must be no averment of an express promise.

10. PLEADING (§ 49)—PETITION—THEORY OF ACTION.

A petition in two counts against a wrecking company on a written contract of sale of buildings for failure to remove rubbish alleged as a matter of inducement an ordinance of the city of St. Louis granting the right to use Forest Park to the Louisiana Purchase Exposition Company, and providing for clearing the park after the exposition closed. It then alleged a contract between the exposition company and the German government and between such government and plaintiff to remove structures and material according to the contract between the city and exposition company and between the German government and plaintiff, and a breach thereof. The second count was like the first except in alleging that defendant agreed to remove the structures, rubbish, and débris within a reasonable time. Held, that the petition declared on the written agreement, and adopted the theory that defendant thereby undertook to clear away the buildings and bring the site back into a state of nature as the German government and plaintiff had agreed to do.

11. JUDGMENT (§ 250) — CONFORMITY TO PLEADINGS.

Plaintiff must recover, if at all, on the contract alleged.

Appeal from St. Louis Circuit Court; Jesse A. McDonald, Judge.

Action by the Kellerman Contracting Company against the Chicago House Wrecking Company for failure to remove buildings sold to defendant. From a judgment for plaintiff, defendant appeals. Reversed.

Nagle & Kirby, for appellant. A. B. Chandler and Rowell & Ferriss, for respondent.

GOODE, J.

The parties entered into the following contract: "St. Louis, 2-7-05. Kellerman Contracting Company, 418 Roe Building, City. Gentleman: We accept your proposition of $600 for the German House, also the Restaurant and all material therein, excepting such as belongs to the German Commission, and certain plumbing. This is free of all incumbrances, liens, etc. Payment to be made for the above property when same is delivered to us. Yours truly, Chicago House Wrecking Company. A. Harris, Prest. Accepted: Kellerman Contracting Company. Wm. Lehr, Secr." The buildings mentioned in the contract were constructed by the German government in that portion of Forest Park in the city of St. Louis which was the site of the Louisiana Purchase Exposition. The municipal government of St. Louis had granted to the exposition company the privilege of using Forest Park for an exposition on condition that all structures erected in the park and property used in connection with the exposition should be removed from the park within six months after the close of the Fair. The contract between the exposition company and the state of Germany granting the latter a concession to erect the buildings mentioned bound the German government to remove the buildings and all constructions from the site and grounds of the exposition in 60 days after the Fair closed, clear and clean the place, and restore the same to its original condition as far as practicable. The German government let the contract for the construction of the buildings to plaintiff, and provided in the contract the buildings should be wrecked and removed from the premises on or before January 31, 1905; further agreeing all the wrecked property should belong to plaintiff. It will be seen by the agreement quoted, supra, plaintiff sold the two buildings and all the materials therein, except parts belonging to the German commission and plumbing material, to defendant on February 7, 1905. The buildings were delivered to defendant March 23, 1905, and the evidence showed...