Shelton v. Durham

• Decision Date: 31 October 1882
• Parties: SHELTON et al., Appellants, v. DURHAM.
• Court: Missouri Supreme Court

76 Mo. 434

SHELTON et al., Appellants,

v.DURHAM.

Supreme Court of Missouri.

October Term, 1882.

Appeal from St. Louis Court of Appeals.

AFFIRMED.

Cline, Jamison & Day with H. A. Haeussler and Peter E. Bland for appellants.A. R. Taylor for respondents.

NORTON, J.

This suit was brought in the St. Louis circuit court, by appellants, against John F. Durham, as principal, and James Luthy and Henry F. Vahlkamp's administrator, as sureties on a bond executed by them to said appellants, dated November 11th, 1872, for $15,000, conditioned as follows: “Whereas, the said Jno. F. Durham has covenanted and agreed to erect at his own cost and expense, within ten months, a good and substantial building, to be worth $15,000, as specified in the foregoing lease; Now, if said John F. Durham shall, within ten months, erect the said good and substantial building, worth a least $15,000, on said premises as specified in said lease as aforesaid, and shall pay for the same, so that no mechanic's lien will be filed against said premises, then said bond to be null and void; otherwise to remain in full force and virtue.”

Plaintiffs allege in the petition the execution and delivery to defendant Durham of a writing leasing to him a lot in the city of St. Louis for the period of ten years, containing certain covenants on the part of said Durham and among them one which bound him to erect and build on the leased premises a good and substantial building within ten months from the 11th day of November, 1872, of the value of $15,000; which at the termination of the lease was to belong to plaintiffs. It is also averred that said Durham had not only failed to perform said building covenant but also others mentioned in said lease, whereby it became terminated and an action accrued to plaintiffs on the bond in suit.

1. ACTION AGAINST SURETIES: pleading.

In order to prevent further reference to it, it may here be observed that the court, on defendant's motion, struck out all that part of the petition relating to the non-performance of all covenants except the one relating to the erection of said building. This action was entirely proper as defendants had only bound themselves in the bond sued upon to be answerable for the non-performance of the building covenant.

Defendant Durham answered separately that after said lease had been signed and delivered, and before he secured possession of the leased premises, he learned that it was not properly nor legally executed by Mrs. Rives, one of the lessors and a married woman, and that Frank G. Shelton, another of the lessors, was a minor, and that he refused to receive said lease, and would have rescinded the same, but plaintiffs agreed with him that if he would accept said lease, they would cause it to be executed properly by Mrs. Rives, and would also execute a bond of indemnity against all damages that might be sustained by reason of the minority of said Shelton; that said lease was never legally executed by Mrs. Rives nor said bond of indemnity ever given, and that the bond in suit was without consideration.

The other two defendants answered jointly setting up substantially the same defense.

On the trial defendants obtained judgment, from which plaintiffs appealed to the St. Louis court of appeals, where the judgment was affirmed, and from which plaintiffs have appealed to this court. It is insisted that the court erred in giving and refusing instructions and in admitting evidence.

2. OBJECTION TO EVIDENCE: the record.

The defendant Durham was put upon the stand as a witness, and his evidence in relation to the agreement of plaintiffs to have Mrs. Rives properly execute the lease and the indemnifying bond, was objected to, which was overruled,...