State ex rel. Johnson v. Blair

• Decision Date: 01 November 1943
• Docket Number: 38506
• Citation: State ex rel. Johnson v. Blair, 174 S.W.2d 851, 351 Mo. 1072 (Mo. 1943)
• Parties: State of Missouri, at the Relation of W. T. Johnson, Relator, v. David E. Blair, Robert J. Smith, and James F. Fulbright, Judges of the Springfield Court of Appeals
• Court: Missouri Supreme Court

174 S.W.2d 851

351 Mo. 1072

State of Missouri, at the Relation of W. T. Johnson, Relator, v. David E. Blair, Robert J. Smith, and James F. Fulbright, Judges of the Springfield Court of Appeals

No. 38506

Supreme Court of Missouri

November 1, 1943

Writ quashed.

Phil M. Donnelly for relator.

(1) The opinion of respondents, Judges of the Springfield Court of Appeals, conflicts with the latest decisions of this court on a general principle of law announced by this court on the subject in this, to-wit, that where there has been a definite proposal made on the one hand, and an acceptance thereof on the other, and such acceptance has been unequivocal unconditional and without variance between it and the proposal made, this constitutes a completed contract. Lungstrass v. German Ins. Co., 48 Mo. 201; Strange v. Crowley, 91 Mo. 287; Taylor v. Von Schraeder, 107 Mo. 206; Scott v. Davis, 141 Mo 213; Chapin v. Cherry, 243 Mo. 375; State ex rel. Equitable Life Assur. Society of United States v Robertson, 191 S.W. 989; Suhre v. Busch, 120 S.W.2d 47. (2) The proposal or offer to renew the lease, as set forth in respondents' opinion, page 2, was a continuing offer, and relator had until the expiration date of his lease, to-wit, November 13, 1941, to accept the same. The opinion of respondents in not so holding was in conflict with the latest decisions of this court in the following cases: Lively v. Tabor, 107 S.W.2d 62; Rutledge & Taylor Coal Co. v. Mermod, Jaccard & King Jewelry Co., 209 Mo. 200; American Press Co. v. St. Louis, 314 Mo. 288. (3) The opinion of respondents in not holding that relator was entitled to specific performance of said lease as prayed for in his answer failed to follow the last controlling decision of this court on the subject in the case of Arnot v. Alexander, 44 Mo. 25. (4) When an opinion of a Court of Appeals contravenes a decision of the Supreme Court as regards a general principle of law announced by the Supreme Court, said opinion, judgment and record of the Court of Appeals must be quashed. State ex rel Maclay v. Cox, 10 S.W.2d 940; State ex rel. City of Macon v. Trimble, 12 S.W.2d 727; State ex rel. Himmelsbach v. Becker, 85 S.W.2d 420; State ex rel. Snider v. Shain, 137 S.W. 2d) 527; State ex rel. Missouri-Kansas-Texas R. Co. v. Shain, 124 S.W.2d 1141. (5) The judgment in the case at bar was not in accordance with the latest decisions of this court holding that a verdict which omitted the finding that the defendant was in possession of the property at the time of the commencement of the action, was insufficient to sustain a judgment and the opinion of the respondents in not so holding is in conflict with the latest decisions of this court in the following cases: Bimmerle v. Langdeau, 258 Mo. 202; Caldwell v. Stephens, 57 Mo. 589; State ex rel. Terminal Railroad Assn. v. Hostetter, 342 Mo. 859.

Bradshaw & Fields for respondents.

(1) This court will look to respondents' opinion for facts. State ex rel. St. Louis Union Trust Co. v. Neaf, 139 S.W.2d 958; State ex rel. Brotherhood of Locomotive Firemen & Enginemen v. Shain, 123 S.W.2d 1. (2) Offeree's counter-proposal constituted rejection of the original offer. Egger v. Nesbitt, 122 Mo. 667; Bokern v. Loud, 108 S.W.2d 1049; 17 C. J. S. 398. (3) The provision in the original lease for renewal was void under Statute of Frauds. Sec. 3354, R.S. 1939; 35 C. J. 1009; Crane v. Berman, 297 S.W. 423; Blue Valley Creamery Co. v. Consolidated Products Co., 81 F.2d 182. (4) The Casey offer was without consideration and could be withdrawn any time before acceptance. Gillen v. Bayfield, 46 S.W.2d 571. (5) There was no conflict by reason of alleged error of respondents in applying rules of law to the facts in the opinion. State ex rel. Emery, Bird, Thayer Dry Goods Co. v. Shain, 154 S.W.2d 775; State ex rel. Sirkin & Needles Moving Co. v. Hostetter, 101 S.W.2d 50; State ex rel. St. Louis-S. F. Ry. Co. v. Haid, 37 S.W.2d 437. (6) Neither the Casey offer nor the original lease embodied an option for renewal. (7) There was no provision for specific performance in either the original lease or the Casey offer which was rejected and withdrawn. Arnot v. Alexander, 44 Mo. 25; State ex rel. Public Serv. Comm. v. Shain, 119 S.W.2d 220; St. Louis v. St. Louis Gaslight Co., 70 Mo. 69. (8) Relator's fourth assignment of conflict is merely an abstract statement of law having no application to the facts of this case. (9) A contention not decided by the Court of Appeals cannot be made the basis of a ruling quashing its record on certiorari. State ex rel. St. Joseph v. Ellison, 223 S.W. 671; State ex rel. Public Serv. Comm. v. Shain, 119 S.W.2d 220.

Dalton, C. Bradley and Van Osdol, CC., concur.

OPINION

DALTON

This is an original proceeding in certiorari to quash for alleged conflict the opinion of respondents in the case of Ashenhurst v. Johnson (Mo. App.), 167 S.W.2d 397.

Respondents stated that the cause before them was one in ejectment for possession of certain real estate in Lebanon, Laclede County; and that an answer and reply had been filed in the cause, and the cause tried to the court without the aid of a jury and without declarations of law to show the theory on which it was tried. The trial court found the issues for plaintiff.

Respondents stated the facts, as follows: "In November, 1936, T. H. Casey and wife, the then owners of the premises here involved, executed and delivered to appellant their five-year lease of the premises involved, which lease contained the following provision:

"'It is agreed that the second party (appellant) shall have the right to lease said described property at the end of this term of lease for another term, provided that first parties, their heirs or assigns, and second party can agree on rental terms; and if said parties do not agree, the second party agrees to vacate said described property at the expiration of this lease.' . . .

"Defendant entered into possession of the premises and, on June 28, 1941, Casey and wife served written notice on defendant, which provided as follows:

"'This will notify you that we will lease the above described building and premises to you for another term of three (3) years or five (5) years, at your option, for a rental of One Hundred Twenty-five Dollars ($ 125.00) per month, payable monthly in advance.

"'We are giving you this notice at this time so that you will have plenty of time to decide whether or not you want to lease this building and premises for another term at One Hundred Twenty-five Dollars ($ 125.00) per month.

"'If you decide to not lease this building and premises for another term at One Hundred Twenty-five Dollars ($ 125.00) per month, then we will expect the possession of the building and premises on November 13, 1941, the date of the expiration of our present lease.'

"This notice for an increase in rent was not immediately accepted by defendant and he came back with a counter-proposition which we do not think was ever unqualifiedly accepted by the Caseys at that or any other time. On about October 3, 1941, Mrs. Mildred Ashenhurst (respondent here) purchased the premises from the Caseys. There is no dispute that Mrs. Ashenhurst was the owner of the premises, the assignee, when the lease executed by the Caseys expired by its terms on November 13, 1941, or at the time the suit was instituted on December 24, 1941. On October 21, 1941, plaintiff, Mrs. Ashenhurst, served notice on defendant Johnson to vacate the premises on November 13, 1941, the date of the expiration of said lease. On November 10, 1941, defendant served on Mrs. Ora Casey, T. H. Casey and respondent, Mrs. Mildred Ashenhurst, a notice of which the following was a part, to wit:

"'You and each of you are therefore notified that I accept and exercise the right and option contained in said lease dated November 13th, 1936, wherein it was agreed that I shall have the right to lease said described property at the end of the term of said lease for another term.

"'You and each of you are hereby notified that I will lease said described property, building and premises from you for another term of five (5) years commencing on November 14th, 1941; and you are notified that I will pay to you as rental for said described property, building and premises, during said period of five (5) years from November 14, 1941, the sum of One Hundred Twenty-five Dollars ($ 125.00) per month, the amount stated by Mrs. Ora Casey and T. H. Casey in their written notice to me dated June 28th, 1941, and that I will pay said rent monthly in advance during said term of five years.

"'You and each of you are further notified that I will comply with all the other terms and provisions of the original lease dated November 13, 1936, and that said terms and provisions, including the rental of One Hundred Twenty-five Dollars ($ 125.00) per month commencing November 14, 1941, for a term of five (5) years from November 14, 1941, can be incorporated in a new lease or endorsed by proper endorsement on the back of the original lease.'

"Mrs. Ashenhurst subsequently refused to accept from defendant checks dated November 11, 1941, and December 11, 1941, for $ 125.00 each, as rent on said premises after November 13, 1941," and brought suit in ejectment against defendant.

Respondents affirmed the judgment for plaintiff and assigned the following reasons:

"The notice to T. H. Casey and wife on November 10, 1941, was absolutely ineffectual, if, for no other reason, because the Caseys had no interest whatever in the premises at that time and appellant knew it. Respondent was then the assignee. There is no sufficient evidence in the case that, even when, or at any time after, the Caseys served notice of increase of rent on defendant, the Caseys agreed to take $ 90.00...