Ordelheide v. Traube
| Decision Date | 05 May 1914 |
| Citation | 166 S.W. 1108,183 Mo.App. 363 |
| Parties | FLORENCE A. ORDELHEIDE, Respondent, v. EDWARD TRAUBE et al., Appellants |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Daniel D. Fisher Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Henry G. Trieseler for appellants; Louis E. Trieseler of counsel.
(1) The amended petition does not state facts sufficient to constitute a cause of action. An agreement to assign or sell an interest in a lease having an unexpired term of more than one year must be in writing. Nally v. Reading, 107 Mo. 350; Johnson v. Reading, 36 Mo.App. 306; Roth Tool Co. v. Champ Spring Co., 93 Mo.App. 530; Sharp v. Rhiel, 55 Mo. 97; Donovan v Schoenhofen, 92 Mo.App. 341; Ver Steeg v. Longo Fruit Co., 158 Mo.App. 126; Sec. 2782, R. S. 1909. The written agreement must be complete in itself. Parol testimony cannot be received to explain or vary it, nor can any additions be made thereto by parol evidence. Warren v Mayer Co., 161 Mo. 112; Boyd v. Paul, 125 Mo. 9; Koons v. St. Louis Car Co., 203 Mo. 255; Johnson v. Fecht, 185 Mo. 345; Reigart v. M'ft'rs Coal & Coke Co., 217 Mo. 142; Ringer v. Holtzclaw, 112 Mo. 523. Where the contract is denied in the answers of defendants, it is not necessary to plead the statute affirmatively. Miller v. Harper, 63 Mo.App. 293; Moormeister v. Hannibal, 163 S.W. 926. It is elementary law that the objection to the amended petition on the ground that it does not state facts sufficient to constitute a cause of action is never waived and may be raised at any time before final judgment in the cause, and the statute may be invoked as well, when the defect appears on the face of the petition. In such case there is no necessity of pleading the Statute of Frauds. (2) The demurrer to the evidence of both defendants should have been sustained. Nally v. Reading, 107 Mo. 350; Johnson v. Reading, 36 Mo.App. 306; Roth Tool Co. v. Champ Spring Co., 93 Mo.App. 530; Sharp v. Rhiel, 55 Mo. 97. And part performance of the contract is not sufficient to take it out of the statute. Nally v. Reading, 107 Mo. 350; Johnson v. Reading, 36 Mo.App. 306; Sharp v. Rhiel, 55 Mo. 97. (3) The words "including lease on property, 1609-1611 Lafayette avenue," are too uncertain and indefinite to constitute an agreement or the basis of an agreement to assign a lease and secure the consent of the lessor thereto. Cunningham v. Roush, 157 Mo. 336; Railroad v. Railroad, 135 Mo. 194; Conn v. Long Bell Lbr. Co., 66 Mo.App. 483. (4) Adolph Lambrecht was not a competent witness to testify to the reasonable rental value of the premises. Thomas v. Mullinckrodt, 43 Mo. 65; Matthews v. Railroad, 142 Mo. 645. (5) All evidence as to the sale of the good will of the business or any injury thereto was incompetent and immaterial to any issue presented by the pleadings in the cause. Its admission constituted prejudicial error. (6) All evidence to the effect that Albert Traube had entered into business in competition with plaintiff was incompetent and immaterial under the issues presented by the pleadings and the agreement itself. Its admission constituted reversible error. (7) The examination by the court of defendant, Albert Traube, was improper and illegal. It invaded the province and functions of the jury. It created prejudice in the minds of the jury against both defendants. It was highly prejudicial of the rights of defendants. Landers v. Railroad, 134 Mo.App. 80; McGinnis v. Railroad, 21 Mo.App. 413; State v. Turner, 125 Mo.App. 21; Dreyfus v. Railroad, 124 Mo.App. 585; Schmidt v. Railroad, 149 Mo. 269; McPeak v. Railroad, 128 Mo. 617; State v. Nelson, 181 Mo. 340; State v. Eatherly, 185 Mo. 178; Edens v. Railroad, 72 Mo. 212; State v. Potter, 125 Mo.App. 465; State v. Wright, 161 Mo.App. 604; State v. Doerris, 168 Mo.App. 324. (8) The court erred in instruction 1 in that it failed to instruct the jury as to what facts would constitute a partnership between the defendant if found from the evidence. Wright v. Fonda, 44 Mo.App. 634. Instruction 1 is argumentative in form, comments upon the evidence and makes too conspicuous a feature of certain evidence in the case, and has embodied within it mixed questions of law and fact. Kendall Co. v. Bain, 46 Mo.App. 581; Pace v. Roberts, Johnson & Rand Co., 103 Mo.App. 662; Hoffmann v. Hoffmann's Ex., 126 Mo. 486; Jones v. Jones, 57 Mo. 143; Tibbe v. Kamp, 154 Mo. 546; Railroad v. Rope Co., 156 Mo.App. 640. (9) The court erred in instruction 2 in that it is open to the same objections as number 1, excepting the question of partnership. (10) Instruction 3 is erroneous in that it fails to state the correct measure of damages and is not based upon the evidence in the case. In an action for breach of contract, the measure of damages is a question of law for the court to declare in its instructions to the jury. Rhodes v. Holloday-Klotz Lbr. Co., 105 Mo.App. 279; Sessinghaus v. Knocke, 127 Mo.App. 300; Sanders v. Holstein Com. Co., 118 Mo.App. 29; Churchill v. Lammers, 60 Mo.App. 244; Huling v. Roll, 43 Mo.App. 234; Talbot v. Whipple, 14 Allen, 177. (11) The verdict and judgment is excessive.
Taylor R. Young for respondent.
(1) We concede that an agreement to assign the lease in question is within the Statute of Frauds, but this is of no consequence here for these reasons: First, the suit is not bottomed on the failure to assign, for Mr. and Mrs. Traube did make the assignment; but the complaint is that they failed to secure the written consent of the lessor thereto. Second, the Statute of Frauds is a defense only when it is pleaded, and it is not pleaded in this case. Springer v. Kleinsorge, 83 Mo. 185. Third, but if the statute could have been raised at the trial under the general denials it was not done, but was waived, as no objection was at any time made to the introduction of evidence nor to the memorandum contract itself, on the ground that the statute was a bar. This is a waiver of that defense, and it cannot be made in this court for the first time. Van Idour v. Nelson, 60 Mo.App. 523; Scharff v. Klein, 29 Mo.App. 528. Fourth, even if the statute can be invoked here for the first time, it does not lie in appellants' mouth to mention it. Respondent performed all of the terms of his agreement and appellants have accepted his money. McConnell v. Brayner, 63 Mo. 461; Bless v. Jenkins, 129 Mo. 647; Hoyle v. Bush, 14 Mo.App. 408. (2) And, again, the memorandum signed by Albert Traube is sufficient, as that was the way both appellants chose to sign, and plaintiff so understood it. J. K. Armsby Co. v. Eckerly, 42 Mo.App. 299. (3) Adolph Lambrecht, who owned the property, was a competent witness. He testified that he was, and for ten years had been, familiar with the rental value of property in the vicinity of the property the rental value of which was in issue; had rented it for over ten years and had kept himself informed of the reasonable rental value of property in the neighborhood. Thomas v. Mallinckrodt, 43 Mo. 58. (4) The admission of evidence concerning the sale of the good will of appellants' business was elicited in the course of the cross-examination of both appellants, whose demeanor on the stand as well as by their testimony, showed that they were not frank, to say the least and was elicited to refresh their memories of the entire conversation between them and respondent. Besides this was an element of damages under the pleadings, and because plaintiff chose to waive it in his instruction on the measure of his recovery is not ground for complaint on the part of appellants. And, conceding it to have been error, which it was not, it is no ground for complaint, as it is perfectly harmless. Such errors are disregarded on appeal. Williams v. Mitchell, 112 Mo. 300; State ex rel. v. Jones, 131 Mo. 194; Cheek v. Waldron, 39 Mo.App. 21; Goodrick v. Harrison, 130 Mo. 263. (5) Complaint is made that the trial court prejudiced the jury by asking pointed questions for the sole purpose of eliciting the truth from an evasive witness relating to material facts. The conduct of the trial court was entirely proper and it was its duty in view of the testimony and demeanor of the witness. Thompson v. Ish, 99 Mo. 178; Stephens v. Fire Assn., 139 Mo.App. 380; Fullerton v. Fordyce, 144 Mo. 527. Counsel for plaintiff would have had the right to ask the question complained of, and the court certainly has a similar right. State v. Crotts, 22 Wash. 245. (6) But if the question was improper, it was harmless, as the verdict is for the right party. Thompson v. Ish, 99 Mo. 178; Fullerton v. Fordyce, 144 Mo. 527; Stephens v. Fire Assn., 139 Mo.App. 380. (7) The instructions given fairly submitted the issues to the jury and are not erroneous. Fugate v. Millar, 109 Mo. 281; Henry v. Grand Ave. Ry., 113 Mo. 525; La Force v. Williams, 43 Mo.App. 518.
This is a suit for damages accrued through the breach of a contract. Plaintiff recovered and defendants prosecute the appeal.
Defendants are sued as copartners, but the fact of partnership is denied in the answer, duly verified, and an issue concerning it made.
It appears defendant Edward Traube purchased an undertaking business and livery stable combined, in 1904, which was then known as and conducted under the name of Lafayette Park Livery & Undertaking Company and located at 1609-1611 Lafayette avenue, St. Louis. Immediately upon purchasing this business, it is said by defendants that Edward Traube gave it to his son and codefendant, Albert Traube, who thereafter conducted the business under the name theretofore employed--that is, Lafayette Park Livery & Undertaking Company. Though the name appears to suggest a corporation, it is said no such...
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