Thomas v. Hooker-Colville Steam Pump Co.

• Decision Date: 17 January 1888
• Parties: BENJAMIN F. THOMAS, Respondent, v. HOOKER-COLVILLE STEAM PUMP COMPANY, Appellant.
• Court: Missouri Court of Appeals

28 Mo.App. 563

BENJAMIN F. THOMAS, Respondent, v. HOOKER-COLVILLE STEAM PUMP COMPANY, Appellant.

Court of Appeals of Missouri, St. Louis.

January 17, 1888

APPEAL from the St. Louis Circuit Court, HON. DANIEL DILLON, Judge.

Affirmed.

JAMES L. BLAIR, for the appellant: This court expressly said that the question in this case was, the sense in which the parties to the instrument used the term, " special taxes," yet, the circuit court tried this case upon the theory that what was in the minds of the parties was immaterial. The circuit court did not, therefore, try this case in accordance with the decision of this court, and for that error appellant contends the circuit court should be reversed. Thomas v Steam Pump Co., 22 Mo.App. 8. There are many general customs in every community which are not absolutely universal, and come under the head of " custom of merchants." The law is, that if it is a general custom everybody in that community is presumed to know it when concerned in a transaction where that custom prevails. Absolute knowledge of that custom is entirely unnecessary to charge a party, nor is it necessary that it should be universal. While the rule is that an appellate court will not disturb the verdict of a jury if there be any evidence to support it, yet, there is a difference when the case is tried by the court sitting as a jury, and where all the testimony is before the appellate court, as in this case. In such cases, the evidence may be weighed, and in this case there can be no doubt that the great preponderance of evidence is with the appellant.

M. L GRAY, for the respondent: This court will not consider the rulings of the trial court in admitting or excluding evidence for the reason that appellant in its motion for new trial did not specify these rulings as error. Curtis v. Curtis, 54 Mo. 351; Acock v. Acock, 57 Mo. 154; Saxton v. Allen, 49 Mo. 417; Brady v. Connelly, 52 Mo. 19; Carver v. Thornhill, 53 Mo. 285; Vineyard v. Matney, 68 Mo. 105. The finding or verdict of the lower court as a jury will not be reviewed by this court. Hamilton v. Boggess, 63 Mo. 251-2; Gaines v. Fender, 82 Mo. 509. The instructions given at plaintiff's request were proper. The first instruction gave defendant the full benefit of this court's decision in regard to common usage or interpretation put upon the words, " special taxes," generally, by parties entering into similar contracts. The evidence fails to show or establish any common usage, etc., as to the meaning of the words, " special taxes," different from what was claimed by plaintiff, or if there was such evidence, there was also evidence tending to sustain plaintiff's interpretation, and on this conflict of evidence the trial court, as a jury, has passed and found for plaintiff, and this court will not review that finding. Hamilton v. Boggess, 63 Mo. 251-2; Gaines v. Fender, 82 Mo. 509. Appellate courts will not consider new points not raised in or passed on by the court below. Wheeler v. Ins. Co., 6 Mo.App. 235, 241; Leisse v. Schwartz, 6 Mo.App. 412, 415; Walker v. Owen, 79 Mo. 563, 568; Whetstone v. Shaw, 70 Mo. 575, 580. The judgment below should be affirmed with damages.

OPINION

ROMBAUER J.

This case involves the liability of the defendant lessee to pay a special tax or assessment for granite reconstruction of a street, which was assessed November 1, 1884, against the property demised.

The covenant in the lease under which the liability is claimed to have arisen reads as follows: " Said lessee further agrees to pay all taxes, including the taxes for 1883, both general and special, which may be levied or assessed against said property during the term of this lease, the last taxes to be paid being 1892."

The cause was tried by the court without a jury, and judgment was rendered in favor of plaintiff. The defendant, appealing, assigns for error the improper admission and exclusion of evidence, and the giving of erroneous declarations of law. The defendant further claims that the evidence fails to support the verdict.

As in the motion for new trial no complaint is made of the rulings of the court in rejecting and admitting evidence, we cannot, with propriety, consider that complaint here. Saxton v. Allen, 49 Mo. 417; Acock v. Acock, 57 Mo. 154, 156; Vineyard v. Matney, 68 Mo. 105. We will, therefore, proceed to the consideration of the other errors assigned.

The complaint of the defendant that the evidence fails to support the verdict is based on what defendant claims to be the correct reading and interpretation of the covenant above recited. The defendant contends that the only correct grammatical construction of the language used is, that the lessee bound itself to pay the general and special taxes of 1883 only, and for other years merely the general taxes; that this clause ought to be made to read as if the words, " including the taxes of 1883, both general and special," were included in brackets. The utmost that can be claimed in support of that view is, that some latent ambiguity arises owing to the faulty grammatical construction of the sentence. If so, evidence was admissible as to what...