Spencer v. Smith

• Decision Date: 03 April 1939
• Docket Number: No. 19438.,19438.
• Citation: 128 S.W.2d 315
• Court: Missouri Court of Appeals
• Parties: SPENCER et al. v. SMITH et al.

128 S.W.2d 315

SPENCER et al. v. SMITH et al.

No. 19438.

Kansas City Court of Appeals. Missouri.

April 3, 1939.

Rehearing Denied May 8, 1939.

Appeal from Circuit Court, Buchanan County; F. J. Frankenhoff, Judge.

Suit by Myron C. Spencer and another against Carroll H. Smith and others for reformation of terms of a written lease. From a judgment for the defendants, the plaintiff Spencer appeals.

Affirmed.

S. P. Reynolds, of St. Joseph, for appellants.

Randolph & Randolph and John Muster, all of St. Joseph, for respondents.

SPERRY, Commissioner.

Suit in equity by plaintiffs, Spencer and Browne, against defendants, Smith, Snyder, Ella M. Sharp and May Nidy, for reformation of the terms of a written lease. The court permitted plaintiff Browne, upon his suggestion, to withdraw as party plaintiff; dismissed defendant Nidy for the reason that she had no interest in the suit and was not a necessary party thereto; and rendered judgment against plaintiff Spencer and in favor of the remaining defendants on the merits of the case, from which judgment plaintiff Spencer appeals.

One G. E. Sharp acquired a leasehold interest, for a term of years from October 6, 1930, in a tract of real estate. Spencer alleged that thereafter Sharp leased the whole of said premises to him, Spencer, but that by reason of mistake and error in the description contained in said last named lease, said lease to him conveys but a portion of the land mentioned in the original lease and not all of it. The land described in the lease from Sharp to Spencer, and which lease was introduced in evidence by Spencer, described a plat of ground 64 feet square, located within the original lease. The sketch reproduced below is a correct representation of the land covered in the lease to Sharp, and of the portion thereof described in the lease from Sharp to Spencer, and whereon was located a garage built by Spencer.

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The evidence disclosed that Sharp leased the entire tract from the owner, one Fawcett, on October 6, 1930, for an agreed rental of $100 per annum; that by a lease dated October 6, 1930 (but not executed until October 28, 1930), Sharp subleased a portion of the real estate to Spencer, for a rental of $25 per year; that the land leased to Spencer was described with particularity in the written lease which was signed by both Sharp and Spencer, and that the portion so described is shown on the above plat designated "garage"; that the lease recites therein that Spencer should have the first privilege of buying Sharp's lease and buildings, situated in the "Northeast quarter of Section 10, Township 45; Range 55," that being the general location of the entire leasehold held by Sharp. The lease to Spencer also specifically provides that Sharp shall permit ingress and egress to and from the Spencer plat from the east over other lands held by Sharp under lease. The evidence also discloses that Spencer immediately thereafter built a garage on the portion of the land described in the Sharp-Spencer lease; that at the same time and coincidental with the construction of the garage by Spencer, a filling station, a rest room and a well were constructed on other parts of the leased lands by Sharp; and that Spencer occupied and operated both the garage and the filling station, but that Sharp received a commission from the Standard Oil Company of Indiana, under a contract with it, for every gallon of gasoline sold at the filling station built by Sharp, and which filling station is the real bone of contention here.

On October 20, 1930, Sharp, who is now deceased, assigned his lease to defendant Ella M. Sharp, who, in turn, assigned to a mesne grantor of defendants Smith and Snyder. The latter claim the property, exclusive of the Sharp-Spencer lease, under said lease and assignment. In 1935 plaintiff Spencer, and defendant Emma M. Sharp, executed a written lease of the entire tract to plaintiff Browne. This lease was in evidence and specifically recited that Spencer was the owner of the garage and that Ella M. Sharp was the owner of the filling station located on this real estate.

The above facts, practically all having been gleaned from undisputed documentary evidence, clearly establish that plaintiff Spencer failed to carry the burden of establishing that there was a mutual mistake, or any kind of misunderstanding, with relation to the description of the property as the same appears in the written lease from G. E. Sharp to him, and under which lease he bases his entire claim to the filling station located on that portion of the Sharp lease not included in the Spencer lease. No oral evidence was offered which was of any probative value that tended to challenge the validity of the description contained in the Sharp-Spencer lease. Unquestionably, even aside from any consideration of the claimed laches of Spencer, the judgment of the trial court was fair, for the right party, and in harmony with the evidence. However, plaintiff complains that the judge of Division No. 3 of St. Joseph circuit court, where the cause was tried, did not have jurisdiction.

Two reasons are assigned in support of this contention, the first being that the case was originally filed by plaintiffs in Division No. 2 and that defendants Smith and Snyder filed application therein for change of venue, which application was allowed and the venue changed by order of court to Division No. 3 before Division No. 2 had obtained jurisdiction over defendants Ella M. Sharp and May Nidy. None of defendants ever complained of this procedure, and after the cause was docketed in Division No. 3 all defendants voluntarily came into that court, filed their answers and proceeded to trial. We think that Division No. 3 obtained full jurisdiction of the parties. State ex rel. Arnold v. Utz, Mo.App., 236 S.W. 386. Davison v. Hough, 165 Mo. 561, 65 S.W. 731; Section 724, R.S.Mo.1929, Mo.St. Ann. § 724, p. 940.

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