State ex rel. Fletcher v. Blair

• Decision Date: 07 February 1944
• Docket Number: 38504
• Parties: State of Missouri at the relation of L. B. Fletcher, Relator, v. Hon. David E. Blair, P.J., Hon. Robert J. Smith and Hon. James F. Fulbright, JJ
• Court: Missouri Supreme Court

178 S.W.2d 322

352 Mo. 476

State of Missouri at the relation of L. B. Fletcher, Relator, v. Hon. David E. Blair, P.J., Hon. Robert J. Smith and Hon. James F. Fulbright, JJ

No. 38504

Supreme Court of Missouri

February 7, 1944

Rehearing Denied March 6, 1944.

Opinion of Court of Appeals quashed in part.

Edward F. Sharp for relator.

(1) The opinion of the Springfield Court of Appeals in this case holding that the question of sufficiency of the petition to state a cause of action must be raised by written demurrer or its sufficiency cannot be questioned is in direct conflict with the following controlling opinions of the Supreme Court of this State. W.W. Brown Const. Co. v. MacArther Bros., 236 Mo. 41; Chandler v. Railroad, 251 Mo. 592; Lewis v. Barnes, 221 S.W. 487; Carpenter v. St. Joseph, 263 Mo. 705; Andrews v Lynch, 27 Mo. 167; LaRue v. LaRue, 317 Mo. 207; Cartwright v. Telephone Co., 205 Mo. 126. (2) The Court of Appeals erred in holding that the petition, set out in full in the opinion, stated a cause of action in tort and in so holding contravened the latest decisions of this court as announced in the following cases: Krevet v. Myer, 24 Mo. 107; Fuhr v. Dean, 26 Mo. 116; Bergman v Vogt's Admr., 172 Mo.App. 61; Chappee v. Lubrite Refining Co., 337 Mo. 791, 85 S.W.2d 1034; Levy v. McClintock, 141 Mo.App. 593; Ivory v. Carlin, 30 Mo. 142. (3) The majority opinion of the Court of Appeals is in direct conflict with the statute, Section 3354, R.S. 1939, in upholding a right of action on a verbal contract for a lease of land for more than one year. Sec. 3354, R.S. 1939. (4) The Court of Appeals should have reversed this case for the reason, among others, that the jury made no finding on count 5 of defendant's counterclaim. As the opinion states a motion for arrest was filed in this case raising the point. St. Louis v. Commission Co., 340 Mo. 633; Southern Mo. R. Co. v. Wyatt, 223 Mo. 347; Jones v. Snedecar, 3 Mo. 390; Pitts v. Fugate, 41 Mo. 405.

Ward & Reeves for W. C. Coleman, plaintiff in original action.

(1) The petition in the original case stated a good cause of action. If there were some imperfections in it, then it was the duty of relator to point out these imperfections in the trial court. By failing to demur to the petition, by filing an answer and counterclaim, and by failing to raise any question at all upon plaintiff's petition at any time by demurrer to the evidence or otherwise, any appellate court should hold this petition good and the ruling of the respondents upon this question properly declares the law. Finley v. Williams, 325 Mo. 688, 29 S.W.2d 103; State ex rel. v. Allen, 85 S.W.2d 455; Clay v. Owens, 338 Mo. 1061, 93 S.W.2d 914; Brock v. Railroad, 330 Mo. 918, 51 S.W.2d 100; College v. Dockery, 241 Mo. 522; Southern Real Estate Co. v. Bankers Co., 184 S.W. 1030; Stottle v. Railroad, 18 S.W.2d 433; Drainage District v. Morgan, 18 S.W.2d 438; Thompson v. Lyons, 281 Mo. 430; Kansas City v. Youmans, 213 Mo. 151; Munford v. Sheldon, 9 S.W.2d 907; Heman v. Allen, 156 Mo. 534. (2) Realtor strongly contended in the Court of Appeals that the petition was bad because it did not allege performance on plaintiff's part. The failure of the petition to allege performance (if in fact it did fail to so allege), is cured by filing answer and going to trial. Ricketts v. Hart, 150 Mo. 64. (3) In Missouri we have a statute which corrects all defects which are subject to amendment in a petition after trial and verdict. Sec. 1265, R.S. 1939. (4) Relator contends that a tenant under a verbal lease cannot bring suit against his landlord who has intruded upon his possession. The authorities cited by relator apply only in those cases where the landlord has the right of possession at the time the landlord intrudes upon the possession of the tenant. Those authorities have no application in a case like the one at bar, where the tenant is lawfully in possession and his term has not ended. In such a case the tenant has a cause of action against his landlord, as has been held by the courts of appeal many times, and has never been decided to the contrary by the Supreme Court. Lee v. Armour, 18 S.W.2d 102; Hyatt Inv. Co. v. Buehler, 16 S.W.2d 219. (5) The second point made by relator in his brief is that the Court of Appeals contravened the last controlling decisions of this court in holding the petition set out in respondents' opinion stated a cause of action in tort rather than an action ex contractu. The cases cited by relator under this point of his brief do not pass upon this question at all and consequently there certainly could be no conflict. However, the mere fact that the petition in this case alleged a contract does not make it an action for a breach of contract. The allegation of the petition with reference to the making of the contract is mere inducement or laying a premise for the alleged wrong done by the defendant, which is thereafter specifically set out in the petition. The following cases support the ruling on this point made by the respondents. Lowery v. Kansas City, 337 Mo. 47, 85 S.W.2d 104; Braun v. Riel, 40 S.W.2d 621; Ellison v. Power Co., 59 S.W.2d 714; Trout v. Watkins, 148 Mo.App. 621; Graff v. Brewing Co., 130 Mo.App. 618. (6) It is no concern of the Supreme Court in certiorari proceeding that the Court of Appeals has decided a case contrary to a statute or has misinterpreted the true meaning of a statute, provided, of course, such decision does not contravene a controlling decision of the Supreme Court on such statute, and none is alleged here. State ex rel. v. Trimble, 326 Mo. 623, 31 S.W.2d 783; State ex rel. v. Haid, 325 Mo. 949, 30 S.W.2d 100. (7) However, Section 3354, Revised Statutes of Missouri, 1939, cited by relator, must be read in connection with Section 2969, Revised Statutes of Missouri, 1939, the latter having reference to the manner of terminating an oral contract for the letting of farm lands from year to year. In the case presented here the petition charges the making of a contract for the years 1940 and 1941, and being oral the landlord could have terminated the contract at the end of the first year only by serving the sixty days' notice provided by Section 2969. Since he did not do that the tenant had the right of possession and the right to farm the land for the year 1941 under the terms of his oral contract. Secs. 2969, 3352, R.S. 1939; Minton v. Steinhauer, 243 Mo. 51; Idalia Realty Co. v. Norman, 232 Mo. 663; Hammon v. Douglas, 50 Mo. 434. (8) For a full discussion of the law governing the rights existing between landlord and tenant under oral leases see the following decision by the Court of Appeals. Incidentally, this decision has never been criticised or modified by any decision of the Supreme Court, but has been cited with approval perhaps more than any other case on this subject. Ray v. Blackman, 120 Mo.App. 497. (9) It is elemental that the Supreme Court looks to the opinion of the Court of Appeals sought to be quashed for rulings claimed to conflict with other decisions. State ex rel. v. Trimble, 20 S.W.2d 17, 322 Mo. 360; State ex rel. v. Shain, 349 Mo. 1075, 163 S.W.2d 967. (10) On a review in a certiorari proceeding all evidence shown in the abstract of the record is excluded and the Supreme Court is limited to questions of jurisdiction and errors appearing on face of record. State ex rel. v. Trimble, 327 Mo. 773, 39 S.W.2d 372; State ex rel. v. Trimble, 325 Mo. 277, 28 S.W.2d 1028. (11) In such a proceeding the Supreme Court is without authority to consider the merits of the case. State ex rel. v. Hughes, 348 Mo. 829, 155 S.W.2d 250.

OPINION

Ellison, J.

Certiorari to the Judges of the Springfield Court of Appeals bringing up the record in Coleman v. Fletcher, 167 S.W.2d 906, wherein a judgment of the circuit court of New Madrid county against the relator-defendant was affirmed on appeal, one of the respondent judges, David E. Blair, P.J., dissenting. Relator contends the opinion of the two other respondents contravenes controlling decisions of this court. That opinion as reported in the cited Southwestern sets out the facts more fully than we need do here. In particular it incorporates the plaintiff's petition (except the caption and signature) on which he obtained the judgment affirmed by respondents. Most of the issues hinge on the sufficiency of that petition.

The plaintiff's pleaded cause of action was for damages arising from relator's alleged failure to abide by an oral agreement whereby he leased to the plaintiff 25 acres of cotton land for a period of two years. The petition alleged the oral agreement was made on January --, 1940, covering that year and the next; and that plaintiff entered into possession under the agreement and farmed the land the first year. Then it continued "that although he rented the same said real estate and had an agreement with the defendant to farm the same acreage in cotton during the year 1941, the defendant did wrongfully and without any lawful right, take away from plaintiff the 25 acres of land . . ., and by reason of which act and wrongdoing on the part of the defendant the plaintiff was precluded from" -- farming said land to cotton in 1941. Next, the petition alleged that "said 25 acres of cotton land was wrongfully taken from the plaintiff by the defendant on or about the 18th day of February, 1941, after plaintiff had already begun his farm operations for the said year 1941." Then follow allegations as to the net profit plaintiff would have derived from the year's farming operations under the contract, of which he was deprived and therefore damages by "the wrongful act of the defendant in taking said 25 acres of cotton land from plaintiff."

The relator-defendant did not challenge the sufficiency of the plaintiff's petition in ...