Smyth v. Boroff
| Decision Date | 21 March 1911 |
| Citation | 135 S.W. 973,156 Mo.App. 18 |
| Parties | JAMES F. SMYTH, Respondent, v. C. E. BOROFF, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Pemiscot Circuit Court.--Hon. Henry C. Riley, Judge.
Judgment reversed and cause remanded.
Ward & Collins for appellant.
(1) The court erred in refusing appellant a jury to try the issues in this case. An issue of fact in an action for the recovery of money only, or of specific real or personal property, must be tried by a jury, unless a jury trial be waived. R. S. Mo. 1909, sec. 1968; Rand v. Wicksham, 60 Mo.App. 47; sec. 28, art. II, Const. of Mo.; Lee v. Conran, 213 Mo. 404; Ragan v. McCoy, 29 Mo. 356; Van Raalte v. Epstein, 202 Mo. 173; Frowin v. Page, 132 S.W. 241. (2) Plaintiff cannot recover for the months after his lease expired and for which he did not occupy this building, and for which plaintiff is suing in this "first alleged breach," because plaintiff waived notice, or his right to notice, in writing. If the lessee abandons the premises, and the abandonment is acquiesced in by the lessor, this operates as a waiver of notice from the lessee. Vegely v. Robinson, 20 Mo.App. 199; Cornelius v. Rosen, 111 Mo.App. 619. (3) The petition alleges that we contracted to "convey to plaintiff a good and sufficient title to land;" but the contract provides that we agree "to convey by good and proper coneyance." This we did when he made a warranty deed. So, if plaintiff has any cause of action now, it is upon a breach of warranty, and not upon this executed contract. Wheeler v. Ball, 26 Mo.App. 443; Brauckmann v. Leighton, 67 Mo. 248; Matheny v Stewart, 108 Mo. 73.
McKay & Corbett for respondent.
(1) Where funds cannot be reached by statutory process proceedings in the nature of an equitable garnishment is the proper proceeding. Pickens v. Dorris, 20 Mo.App. 1; Pendleton v. Perkins, 49 Mo. 565; City of St Louis v. Lumber Co., 114 Mo. 74; Lackland v. Garesche, 56 Mo. 265. (2) This being a suit in equity and appellant refusing to submit any question of fact to be passed on by the jury, the court properly declined to order a jury. Keithley v. Keithley, 85 Mo. 217; Weil v. Kume, 49 Mo. 158; Bronson v. Wanzer, 86 Mo. 408. (3) A tenancy is not terminated by the mere act of the tenant in vacating the premises where the landlord does not accept the surrender, but there must also be a proper legal notice given by the tenant of his intention to terminate the tenancy. 24 Cyc., sec. 7, p. 1390; Churchill v. Lammers, 60 Mo.App. 244; Chatman v. Tiffany, 70 N.H. 249; Duffey v. Day, 42 Mo.App. 638; Buck v. Lewis, 46 Mo.App. 227; Duffey v. Day, 42 Mo.App. 638; Churchill v. Lammers, 60 Mo.App. 244.
This is a suit for damages alleged to have accrued to plaintiff because of defendant's several breaches of a contract. Plaintiff recovered and defendant prosecutes the appeal.
Plaintiff formerly owned a stock of merchandise and conducted a general store in a brick building owned by him at Caruthersville, which stock of merchandise he exchanged to defendant for 809 acres of land, a sawmill, a blacksmith shop, etc., in the State of Arkansas. As the stock of merchandise was not equivalent in value to the properties which plaintiff received from defendant, he also executed to defendant, as part of the consideration for the exchange, his two promissory notes for the sum of $ 2650 each at six per cent interest falling due, one in nine months after date and the other eighteen months thereafter. After the parties had reached an agreement with respect to the exchange of plaintiff's stock of merchandise at Caruthersville and his two notes for defendant's Arkansas land, sawmill, etc., the same was reduced to writing. This suit proceeds upon the written contract concerning this exchange of properties and declares upon four separate breaches of such contract. The written contract, among other things, recites that the parties had reached an agreement and that plaintiff, Smyth, thereby bound himself to exchange his stock of merchandise and the notes above mentioned to defendant, Boroff, for 809 acres of land in Arkansas, describing it, the sawmill, blacksmith shop, appurtenances, etc. And defendant Boroff agreed therein to convey the lands to plaintiff by a "good and proper conveyance with abstract." By another provision of the contract, defendant Boroff rented from plaintiff all of the first floor of plaintiff's brick store building in Caruthersville, which consisted of two rooms and in which the stock of goods was then located, for the period of one year, at the agreed rental of $ 100 per month. As to this matter, a further stipulation is made to the effect that defendant should, each month as the rent accrued, pay $ 50 thereof to plaintiff and credit another $ 50 on plaintiff's two notes of $ 2650 held by him and which fell due respectively nine and eighteen months after the dates thereof. Another provision of the contract relates to hickory timber standing on the land exchanged by defendant to plaintiff and stipulates that defendant might cut on and remove from the land 35,000 feet of such hickory timber at five dollars per thousand, which he agreed to pay plaintiff therefor.
There are four breaches of the contract set forth in the petition and they relate alone to the four provisions above mentioned. The contract provides as well that, in the event defendant desired to terminate the tenancy as to plaintiff's store building, he should give thirty days' notice to that effect before the end of the year, and gave defendant an option to have a new lease for several years thereafter upon giving thirty days' notice that he so desired. Though the contract was dated February 10th, it appears defendant entered into possession of the store building thereunder on March 1, 1907, and continued therein until March 1, 1908, when he vacated the premises without written notice to plaintiff. Plaintiff immediately accepted rent at fifty dollars a month from one Fields who occupied one room of the store building with a grocery store, but the other room thereof remained unoccupied, except by plaintiff's sister, Mrs. Thompson, for seven months thereafter--that is, during the months of March, April, May, June, July, August, and September, 1908. The first breach of the contract declared upon in the petition relates to this matter and reckons with the occupancy of one room of the building by Fields, who paid rent to plaintiff at fifty dollars per month during all of that time, for it declares that defendant breached his contract in omitting and refusing to pay plaintiff rent only at fifty dollars per month for the months of March, April, May, June, July, August, and September, 1908, in the total sum of $ 350.
The second alleged breach of the contract relates to the stipulation therein whereby defendant agreed to credit $ 50 per month of the rent for the building on the two notes of $ 2650 each which he held against plaintiff. It is averred substantially that, though the rent was fully paid for the year which defendant occupied the building and fifty dollars per month thereof was paid by Fields thereafter, defendant omitted and failed to credit fifty dollars per month of such rent on plaintiff's two notes held by him, each month as the rent fell due, during the year defendant occupied the building and during the seven months thereafter of March, April, May, June, July, August, September, 1908, when it was unoccupied by him, and that plaintiff was, therefore, required to pay interest accrued on said notes to the amount of $ 76.68, which would have been abated had defendant credited the notes as agreed.
The third breach of the contract declares upon the stipulation therein which bound defendant to convey to plaintiff the Arkansas lands by a "good and proper conveyance with abstract" and the breach averred is, that defendant failed and omitted to perform, in that plaintiff was required to and did expend $ 479.80 in perfecting the title to such lands after he had received the deed from defendant, wherefore he avers damage to that extent.
The fourth alleged breach of the contract goes to the effect, after an amendment during the trial, that defendant had breached the stipulation thereof with respect to his cutting and removing 35,000 feet of hickory timber from the Arkansas land at five dollars per thousand, in that he had cut and removed therefrom, notwithstanding the limitation prescribed in the contract, 108,580 feet of such timber, etc.
The Bank of Caruthersville was made a party defendant, as though it were the custodian of funds of defendant, Boroff, to the amount of $ 520, which were not available to process at law. The averment as to this matter is to the effect that the bank held $ 520, which was then in dispute between these parties, as each claimed it. Both parties resided in Caruthersville and if this $ 520 were the monies of defendant, it was obviously subject to garnishment at law. But it is not averred that it belonged to defendant; on the contrary, the theory is, that it belonged to plaintiff. Plaintiff insists the suit is in equity as an equitable garnishment, and the court so treated the matter; but obviously the petition is without equity, for, unless the $ 520 were the property of defendant or he had rights therein, it is no more subject to the process of an equitable garnishment than it is to that of a court at law. According to the averments, it is entirely clear there is no equity in the bill, and the court should have discharged the Bank of Caruthersville, but instead it overruled its demurrer. The bank suffered judgment to go against it thereon, restraining it from paying out the money, and it has not appealed. Defendan...
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