Mexico Refractories Co. v. Pignet's Estate

• Decision Date: 05 May 1942
• Docket Number: No. 37711.,37711.
• Citation: 161 S.W.2d 417
• Parties: MEXICO REFRACTORIES CO. v. PIGNET'S ESTATE et al.
• Court: Missouri Supreme Court

161 S.W.2d 417

MEXICO REFRACTORIES CO. v. PIGNET'S ESTATE et al.

No. 37711.

Supreme Court of Missouri, Division No. 2.

May 5, 1942.

Appeal from Circuit Court, Osage County; R. A. Breuer, Judge.

Action by the Mexico Refractories Company against the Estate of August Pignet, deceased, for specific performance of a contract, wherein Stanton C. Roberts was made a party defendant on his application, and wherein Robert Pignet, administrator of the estate of August Pignet, deceased, and Stanton C. Roberts filed separate pleas in abatement. From a decree sustaining the pleas in abatement plaintiff appeals. Robert Pignet, administrator of the estate of August Pignet, deceased, having died, the cause was revived in the name of Alphonse Fick, administrator de bonis non of the estate of August Pignet, deceased.

Reversed and remanded with directions.

Fry & Edwards, of Mexico, for appellant.

John P. Peters, of Linn, and Orlando Mundwiller, of Hermann, for respondent.

TIPTON, Presiding Judge.

This action was brought in the probate court of Osage County, Missouri, against the estate of August Pignet, deceased, to have specifically enforced a contract in reference to mining a clay pit entered into by August Pignet during his lifetime. On application of the defendant the case was removed to the circuit court of Osage County. After the case was certified to the circuit court, Stanton C. Roberts, on his application, was made a party defendant. Thereafter, Robert Pignet, administrator of the estate of August Pignet, and Stanton C. Roberts filed their separate pleas in abatement, which were later amended by adding the word "Answer." Appellant filed its separate replies which were general denials. The trial court entered its order sustaining both pleas in abatement, and decreed that the cause of action of the appellant should be abated. From that decree, the appellant has duly appealed to this court. After the case was appealed to this court, Robert Pignet, administrator of the estate of August Pignet, deceased, died, and Alphonse Fick has qualified and is acting administrator de bonis non of the estate of August Pignet, deceased, and this cause has been revived in his name.

To sustain their pleas in abatement, respondents introduced in evidence only the records and files in the cause in the probate court of Osage Court, In re: Estate of August Pignet, incompetent, and the files, records and transcripts of testimony of an injunction suit styled "Mexico Refractories Company, a corporation, plaintiff, v. Stanton C. Roberts, defendant," which suit was tried and heard at the October Term, 1940, of the circuit court of Osage County. In that case judgment sustained the temporary injunction in part and dissolved the temporary injunction in part. The plaintiff duly appealed from that judgment to this court, and the appeal was pending at the time of the trial of this cause, wherein the pleas in abatement were sustained.

The essential facts are as follows: On and prior to August 7, 1934, August Pignet was the owner of certain land in Osage County, and on that date he entered into a mining lease with B. F. Ferrier granting him the right to mine fire clay from a certain fire clay pit for a term of five years. This lease, also, provided that the lessee had the right to use so much of the surrounding lands as was necessary to efficiently carry on the mining operations. A specified royalty was provided for different kinds of fire clay removed from the pit. The lease further provided that the lessee at his option might purchase the clay mine at any time during the life of the lease, upon payment of a certain sum for each ton of fire clay remaining in the mine. This lease was duly assigned to the appellant.

On March 24, 1938, August Pignet was adjudged by the probate court of Osage County to be a person of unsound mind, and Robert Pignet, his brother, was appointed guardian and curator of his estate.

Appellant entered into possession of the leased lands, mined fire clays and diaspore thereon. Some of the fire clays and diaspore were taken away from the premises and some of them were stocked and piled near the pit.

Sometime prior to October, 1938, appellant notified Robert Pignet, guardian and curator of the estate of August Pignet, incompetent, that it desired to exercise its option to purchase the fire clay mine in accordance with the terms of the lease. Pursuant to such request, Robert Pignet, as guardian, filed a petition in the probate court of Osage County, asking an order directing him to comply with the terms set forth in the lease and option. In response to this petition, on October 17, 1938, the probate court found to be true the facts stated in the petition, and ordered Robert Pignet, as guardian, to comply with the option contained in the lease, and to convey to appellant the fire clay mine and the clay already mined and piled on the premises.

Thereafter, ...