Railway Exchange Bldg. v. Light & Development Co.

• Decision Date: 30 June 1937
• Citation: 107 S.W.2d 59,341 Mo. 334
• Parties: Railway Exchange Building, Inc., and May Department Stores Company, Appellants, v. The Light & Development Company, Cupples Station Light, Heat & Power Company and Union Electric Light & Power Company
• Court: Missouri Supreme Court

107 S.W.2d 59

341 Mo. 334

Railway Exchange Building, Inc., and May Department Stores Company, Appellants, v. The Light & Development Company, Cupples Station Light, Heat & Power Company and Union Electric Light & Power Company

Supreme Court of Missouri

June 30, 1937

Appeal from Circuit Court of City of St. Louis; Hon. Harry A Hamilton, Judge;

Affirmed.

Edward A. Haid, Sullivan, Reeder & Finley and Lewis, Rice Tucker, Allen & Chubb for appellants.

(1) Courts of equity assume full responsibility for both the law and the fact. Jackson v. Phalen, 237 Mo. 149; Davies v. Keiser, 297 Mo. 11; Derry v Fielder, 216 Mo. 195; Seested v. Dickey, 318 Mo. 217; Fendler v. Roy, 331 Mo. 1095. (a) For this reason all the evidence is required to be brought up on appeal. Pitts v. Pitts, 201 Mo. 359; Maplegreen v. Trust Co., 237 Mo. 362; Aulgur v. Strodtman, 329 Mo. 741. (2) Courts do not make, but enforce contracts as the parties themselves have made them. Realty Co. v. Surety Co., 297 Mo. 54; Martin v. Insurance Co., 310 Mo. 416; Monticello Bldg. Co. v. Inv. Co., 330 Mo. 1141. (a) In construing a document, effect is to be given to all the language used. Donovan v. Boeck, 217 Mo. 70; Webb v. Insurance Co., 134 Mo.App. 580; Lovelace v. Association, 126 Mo. 105; Calloway v. Henderson, 130 Mo. 77. (b) The language used is to be given its ordinary and usual significance. Mo. Athletic Assn. v. Inv. Corp., 323 Mo. 765; Fulkerson v. Great Lakes, etc., Co., 335 Mo. 1063. (c) The intention of the parties is to be gathered from the language used -- their possible secret and unexpressed intentions not being of consequence. Strauss v. Land Co., 327 Mo. 211; Koehring v. Muemminghoff, 61 Mo. 407. (d) The words "construct," "repair" and "maintain" are not synonymous. Verdin v. St. Louis, 131 Mo. 87; Lucas v. Ry. Co., 174 Mo. 276; State ex rel. Chillicothe v. Wilder, 200 Mo. 97. (e) To "operate" means to continue in activity. State ex rel. v. Pub. Serv. Comm., 270 Mo. 439; McChesney v. Hyde Park, 37 N.E. 858; Union Tank Line Co. v. Richardson, 191 P. 697; State v. Wooley, 92 A. 662; Florida E. C. Ry. Co. v. Miami, 79 So. 682; State v. Ry. Co., 134 A. 59. (f) Where the language of a contract is ambiguous, resort may be had to contemporaneous agreements to aid, but not to control, the interpretation of the contract in question. 13 C. J. 528. (3) The language of the contract in question clearly requires substantially continuous working of all machinery in the plant in question. (4) In the absence of a provision against subletting a landlord cannot object thereto. Moore v. Guardian Trust Co., 173 Mo. 218; Jones v. Board of Trade, 99 Mo.App. 433; Guthrie v. Hartman, 226 S.W. 593; 35 C. J., p. 975, sec. 54. (a) There can be no waiver without full knowledge of the facts. Callies v. Modern Woodmen, 98 Mo.App. 521; Henderson v. Koenig, 192 Mo. 714; Burke v. Adams, 80 Mo. 504; Oldham v. Wade, 273 Mo. 231. (b) There can be no estoppel where the facts are equally known to both parties. Grafeman Dairy Co. v. Northwestern Bank, 290 Mo. 336; Laughlin v. Wells, 314 Mo. 481; Wilkinson v. Lieberman, 327 Mo. 427. (c) A continuous covenant is co-terminous with the lease and a waiver of performance thereof on one or more occasions is no waiver of the right to insist on performance in future. Farwell v. Easton, 63 Mo. 446; Big Six Dev. Co. v. Mitchell, 138 F. 284; Granite, etc., Co. v. Greene, 54 A. 794; Gluck v. Elkan, 36 Minn. 80; Schultz v. Cardwell, 253 P. 824; 11 L. R. A. (N. S.) 405. (5) The courts will specifically enforce a contract to purchase, although it results from a forfeiture. Met. Land Co. v. Manning, 98 Mo.App. 266; Big Six Dev. Co. v. Mitchell, 138 F. 284; Lang v. Hedenberg, 115 N.E. 569; Ross v. Sanderson, L. R. A. 1917C, 881; Grandville v. Railroad Co., 34 A. L. R. 1411. (6) Contracts are subject to the exercise of the police power of the State. State ex rel. v. Eastin, 270 Mo. 202; State ex rel. v. Pub. Serv. Comm., 275 Mo. 209; Kansas City B. & N. Co. v. Light & Power Co., 275 Mo. 532. (a) Contracts of public utilities covering any of their activities are subject to this rule. State ex rel. v. Kansas City Gas Co., 254 Mo. 541; State ex rel. v. Railroad Co., 279 Mo. 455; State ex rel. v. Pub. Serv. Comm., 259 Mo. 722; State ex rel. v. Pub. Serv. Comm., 275 Mo. 495. (7) A contract of a public utility to render a special service not published and open to the public, although entered into prior to the Public Service Commission Law, is nullified by the passage thereof. Rosenberger v. Pacific Express Co., 258 Mo. 97; Stratford v. Brewing Co., L. R. A. 1917 C, 931; Adler v. Miles, 136 N.Y.S. 135; Christopher v. Blum Co., 82 So. 767; Restatement of the Law of Contracts, secs. 274, 454, 458. (a) A contract which has become impossible of performance, through supervening illegality, excuses both parties from performance. Bell v. Traction Co., 83 W.Va. 640, 98 S.E. 885; Heart v. Brewery Co., 121 Tenn. 70, 113 S.W. 364; Rooks v. Henry Seaton, 1 Pa. St. 106; Am. Merc. Exch. v. Blunt, 102 Me. 128, 66 A. 212.

McCammon & Sandison, Taylor Sandison and John P. McCammon for respondents.

(1) Appellants' brief does not relate the errors assigned to their "Points and Authorities," and each and all of the "Points and Authorities" are mere abstract statements of law. This constitutes a noncompliance with the statute and rules of this court, so that there is nothing presented for review by said brief. Sec. 1060, R. S. 1929; S.Ct. Rules 15, 16; Aulgur v. Strodtman, 46 S.W.2d 172; Hunt v. Hunt, 307 Mo. 375, 270 S.W. 369; Rexford v. Phillippi, 84 S.W.2d 632; Scott v. Mo. Pac. Ry. Co., 62 S.W.2d 840; Huber v. Jones, 85 S.W.2d 418; Homan v. Mo. Pac. Ry. Co., 64 S.W.2d 621; Burch v. Ry. Co., 40 S.W.2d 693; Pence v. K. C. Laundry Service, 59 S.W.2d 639; Johnston v. Johnston, 16 S.W.2d 91. (2) There has not been and cannot be a forfeiture of defendant Cupples Company's lease of the Railway Plant premises because: (a) Construing the lease by its own terms, it does not require continuous plant operation. 13 C. J., pp. 525, 527, 537; Henry v. Bottling Co., 277 Mo. 515, 211 S.W. 9. (b) Construing the lease by aid of contemporaneous documents it will be seen that continuous and uninterrupted plant operation was not required. 13 C. J., pp. 528-30; Houck v. Frisbee, 66 Mo.App. 16; Expansion Realty Co. v. Geren, 185 Mo.App. 440, 170 S.W. 928; Bank of Commerce v. Flanagan Mill & Elec. Co., 268 Mo. 571, 288 S.W. 117. (c) It was not the intention of the parties that the plant be continuously operated, their intention was that continuous and uninterrupted service be required and rendered. 13 C. J. 521; Bank of Commerce v. Flanagan Mill & Elec. Co., 268 Mo. 571, 188 S.W. 117; Bell v. Fayette, 296 S.W. 1048; Metropolitan Pav. Co. v. Investment Co., 309 Mo. 658, 274 S.W. 815; 35 C. J. 1175; Ritchie v. State Board of Ag., 219 Mo.App. 94, 266 S.W. 492. (d) Employing the acts of the parties as an aid to construction, it appears that service and not plant operation was their interpretation of the lease requirement. Attorney General ex rel. v. Drummond, 1 Dru. & War. 368; Laclede Const. Co. v. Moss Tie Co., 185 Mo. 73, 84 S.W. 76; State v. Christopher, 2 S.W.2d 626; Page on Contracts, sec. 2034, p. 1387; Bell v. Fayette, 296 S.W. 1048; Tetley v. McElmurry, 201 Mo. 393, 100 S.W. 37. (3) The proof abundantly showed that the plant had been continuously operated, and plaintiffs have received the service for which they contracted. 35 C. J. 1062; Funk and Wagnalls' Standard Dictionary; Century Dictionary; Webster's New International Dictionary. (4) Under the facts here shown as to operation, equity will not decree a forfeiture of defendant Cupples Company's lease. McCormick v. Stephany, 41 A. 840; Dougan v. Grell Co., 182 N.W. 353; Goldberg v. Pearl, 306 Ill. 436, 138 N.E. 142; Rahr's Sons Co. v. Buckley, 150 N.W. 994; Taylor, Landlord & Tenant (Tiffany's Ed.), p. 1366; Carbonetti v. Elms, 261 S.W. 750; Tetley v. McElmurry, 201 Mo. 394, 100 S.W. 37; 21 C. J. 104; Sease v. Cleveland Foundry Co., 141 Mo. 488; 13 C. J. 566; 35 C. J. 1189.

Hyde, C. Ferguson and Bradley, CC., concur.

OPINION

HYDE

This is an action in equity seeking (on the theory that defendants' lease had been terminated because of default) specific performance of certain provisions in a contract, for sale and conveyance of the electric light, power, and steam plant, which under this contract was to be maintained and operated to supply plaintiffs' needs. Appraisal of the reasonable value of the plant, a mandatory order to compel the removal of certain machinery (owned by Union), as well as an injunction against removal of certain other equipment and machinery therefrom was also sought. It appears that the value of the plant was at least $ 206,632, and that defendants' valuation is more than double that amount. Judgment was entered dismissing plaintiffs' bill and plaintiffs have appealed therefrom.

Most facts material to the decision of this case may be found in the statement made in May Department Stores Co. v. Union Electric Light & Power Co., 341 Mo. 299, 107 S.W.2d 41 decided concurrently herewith. We will refer to the parties herein by the designations therein used. The May case is based on the proposition that the original contracts as to rates and service became void when the Public Service Commission Act went into effect. This case is based upon exactly the opposite theory that the contract is valid and its enforcement is sought. Thus defendants were between two fires. After the May case had been commenced because of the controversy over rates therein described, May wrote to Development and Cupples, on June 30, 1930, notifying them to, within thirty days, put the plant in operation and keep it in continuous operation thereafter, to cancel any subletting...