Tracy v. Union Iron-Works Co.

Decision Date11 May 1891
Citation16 S.W. 203,104 Mo. 193
PartiesTracy v. The Union Iron Works Company, Appellant
CourtMissouri Supreme Court

Certified from Kansas City Court of Appeals..

The lease mentioned in the opinion of the court is in these words, viz.:

"This article of agreement witnesseth: That H. W. Tracy has this day rented to the Union Iron Works Company, of Decatur Illinois, in the present condition thereof, the upper story of his business house, known as 1305, 1307 and 1309 West Twelfth street, Kansas City, Missouri, said company to have the use of elevator and platform in common with the other tenants of building, and to pay their fair proportion of water rates for same, and other uses about the house; also office desk room and space for sample machine on first floor for the period of one year from the first day of May, 1884 on the following terms and conditions, to-wit:

"For the use and rent thereof, the said Iron Works Company hereby promises to pay said H. W. Tracy, or to his order, $ 1,000 per year for the whole time above stated, and to pay the same monthly on the first of each month; that they will not sublet or allow any other tenant to come in with or under them without the consent of the said H. W. Tracy; that they will repair all injuries or damages done to the premises during their occupancy, or pay for the same; that all of their property, whether subject to legal exemption or not, shall be bound and subject to the payment of the rents and damages thereof; that they will take good care of the building and premises, and keep them free from filth, from danger of fire or any nuisance, and protect and defend the said H. W. Tracy from all charges for such; that the house and premises shall be fairly treated, kept clean and left so; that, in default of the payment of any monthly installment of rent for ten days after the same is due, they will, at the request of the said H. W. Tracy, quit and render to him the peaceable possession thereof, but for this cause the obligation to pay shall not cease; and finally, at the end of their term, they will surrender to the said H. W. Tracy, his heirs or assigns the peaceful possession of the said house and premises, with all the keys, bolts, latches and repairs, if any, in as good condition as they received the same, the usual wear and use and providential destruction excepted. In case of any accident that may occur to elevator, the party at fault for same shall pay for all costs of repairing made necessary by such accident.

"In witness whereof the parties have subscribed to two copies hereof, one to be retained by each of the above-named parties.

"Dated this twenty-fifth day of April, 1884.

"(Signed)

H. W. Tracy,

[Seal.]

"Union Iron Works,

[Seal.]

"A. R. Montgomery, Sec'y,

[Seal.]"

The other facts necessary to an understanding of the case appear in the opinion.

Affirmed.

Albert Young and W. A. Alderson for appellant.

(1) Though all anterior and contemporaneous stipulations and agreements are presumed to be merged in a contract when reduced to writing, yet this rule does not exclude fraudulent misrepresentations made for the purpose of inducing a party to execute a contract, and as to matters and conditions precedent which go to the consideration of the signing of such instrument. Also a verbal agreement which is collateral to a lease of writing and a part of the consideration may be shown in evidence. 2 Wharton's Law of Evidence, sec. 1019; Stephen's Digest of Evidence, 104; Bigelow on Fraud, 487; Gooch v. Connor, 8 Mo. 391; Liebke v. Methudy, 14 Mo.App. 65; Laudman v. Ingram, 49 Mo. 212; Murray v. Dake, 46 Cal. 644; Isenhoot v. Chamberlain, 59 Cal. 630; Prentiss v. Russ, 16 Me. 30; Boyce v. Grundy, 3 Peters, 210-219; Thomas v. Beebe, 25 N.Y. 244; Renshaw v. Gans, 7 Barr. 117; Taylor v. Gilman, 25 Vt. 412; Cogers v. McGee, 2 Bibb (Ky.) 321; Chapin v. Dobsons, 78 N.Y. 74; Cozzin v. Whitaker, 3 S. & P. (Ala.) 322; Erskine v. Adeane, 8 L. R. Ch. App. 756; Angell v. Duke, 10 Q. B. 174; Morgan v. Griffith, L. R. 9 Ex. 70; Brown v. Bowen, 90 Mo. 184; Jeffrey v. Walton, 1 Starkie, 213; 6 Cush. 557; 36 Me. 413; 39 Me. 271; 46 Me. 144; 3 Starkie on Ev., p. 1049; Lewis v. Seaburg, 74 N.Y. 409; Juillard v. Chaffee, 92 N.Y. 529; Green v. Randall, 51 Vt. 67; Stephens on Evidence, chap. 12, art. 90. (2) Whenever there are facts in dispute, or there are inferences to be drawn from facts proven, though the evidence is very slight, yet if there is some evidence the plaintiff has a right to have it submitted to the jury. Very slight circumstances, when combined, may establish deceit and fraud. The proof need not be direct or positive, but may be gathered from all the circumstances. It is the province of the jury alone to determine this. Buesching v. Gaslight Co., 73 Mo. 219; Kelley v. Railroad, 70 Mo. 604: Blewett v. Railroad, 72 Mo. 583; Walsh v. Morse, 80 Mo. 568; Jackson v. Hardin, 83 Mo. 175-86; Dulaney v. Rogers, 64 Mo. 201; Brown v. Railroad, 50 Mo. 461; Kearne v. Keathe, 63 Mo. 84; Massey v. Young, 73 Mo. 273; Bank v. York, 89 Mo. 369; Gooch v. Connor, 8 Mo. 285; Liebke v. Methudy, 14 Mo.App. 65.

Warner, Dean & Hagerman for respondent.

This case comes here through the court of appeals. The decision there was in our favor. 29 Mo.App. 342. It reaches here by reason of the opinion of Judge Philips that the opinion of the majority delivered by Judge Hall was in conflict with Brown v. Bowen, 90 Mo. 184. We are content to place the majority opinion against the minority. Since the decision of the case by the court of appeals this court has affirmed Pearson v. Carson, 69 Mo. 550, and settled the doctrine in harmony with Judge Hall's opinion. See State ex rel. Norman v. Hoshaw, 98 Mo. 358, where this court refuses to follow Pennsylvania cases relied on by Judge Philips. Gray v. Gaff, 8 Mo.App. 329; Wilson v. Dean, 74 N.Y. 531; Miller v. Dunlap, 22 Mo.App. 97; Walker v. Engler, 30 Mo. 130; Higgins v. Cartwright, 25 Mo.App. 610; Smith v. Thomas, 29 Mo. 307; Jones v. Shaw, 67 Mo. 667; Rodney v. Wilson, 67 Mo. 123; Helmrick v. Gehrke, 56 Mo. 79; Chrisman v. Hodges, 75 Mo. 413; 1 Greenl. on Ev. 275; Bart v. Bank, 101 U.S. 93; 2 Kent's Com. [13 Ed.] side p. 356; 2 Phillips on Ev. [4 Am. Ed.] p. 665.

Barclay, J. Sherwood, C. J., Black and Brace, JJ., concur.

OPINION

Barclay, J.

Plaintiff brought this action to recover certain installments of rent, due from defendant according to the covenants of a lease dated April 24, 1884, under the seals of both parties, whereby plaintiff let certain business property in Kansas City, Missouri, to defendant for one year from May 1, 1884, on terms, one of which was the payment of $ 1,000 rent during that period. Defendant went into possession and concedes non-payment of the rent in dispute. The reason therefor appears in the counterclaim interposed. That part of defendant's answer and the evidence supporting it raise the only question presented on this appeal.

Defendant's position is that the rent due is subject to reduction to the extent of damages sustained by defendant by the breach of a verbal agreement between plaintiff and defendant, the admissibility of which in evidence is the point in dispute.

The trial court heard defendant's testimony on the subject fully (over objections), and then directed a verdict for plaintiff, a stipulation having been made at the outset of the trial, that plaintiff was entitled to recover the amount claimed unless the defense in question was established.

The facts shown on defendant's part were that it was engaged in the manufacture and sale of cornshellers and other farm machinery at Decatur, Illinois. It rented the premises at Kansas City as a storehouse and business office. When the negotiations for the lease began, it was verbally agreed, between plaintiff and defendant's representative, that the former would put in a railway switch (to connect the premises with a railroad near by) for the use of defendant for shipping purposes. Something was then said about inserting this stipulation in the lease, but plaintiff declared it was not necessary as the thing would be done by the time defendant would be ready to use the track after moving in, adding that his word was as good as his bond. Shortly afterwards the lease was prepared in Kansas City, and forwarded to Decatur for signature on the part of defendant. On examining its terms, the defendant made an amendment by inserting the words, "also office desk room and space for sample machine on first floor" (as they now appear). Then the instrument was formally executed by both parties. It contains no such express agreement as defendant now insists upon, concerning a railway switch.

It will be assumed that defendant's proof showed substantial damages in consequence of the want of the railway connection mentioned.

On this showing the trial court directed a verdict for plaintiff. In due course defendant appealed to the Kansas City court of appeals where the judgment was affirmed. The cause, however, was certified to the supreme court as directed by the constitution, in view of a division of opinion among the judges of the court of appeals. Tracy v. Iron Works (1888), 29 Mo.App. 342.

It should be noted that the verbal agreement asserted by defendant was made in the preliminary negotiations leading to the written lease, and that the latter purports to be complete in itself. It defines with particularity the property whose use was let to defendant. Part of it consisted of privileges in the nature of easements (for example, the use of the elevator and platform in common with other tenants), appurtenant to that part of the property of which defendant was to enjoy exclusive occupancy. The principal subject matter of the letting was the upper story of the...

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