United Real Estate Company v. McDonald

• Decision Date: 06 July 1897
• Citation: 41 S.W. 913,140 Mo. 605
• Parties: United Real Estate Company v. McDonald et al., Appellants
• Court: Missouri Supreme Court

41 S.W. 913

140 Mo. 605

United Real Estate Company v. McDonald et al., Appellants

Supreme Court of Missouri, Second Division

July 6, 1897

Appeal from St. Louis City Circuit Court. -- Hon. James E. Withrow Judge.

Reversed and remanded.

Hiram J. Grover, George B. Webster and Kehr & Tittman for appellants.

(1) This court on this appeal will presume that no other ground was found in the motion for sustaining the application for new trial, and will limit the present investigation to the alleged error in the instructions. Bradley v Reppell, 32 S.W. 645; Millar v. Madison Car Co., 130 Mo. 517; Candee v. Railroad, 130 Mo 142; Joseph Herdler v. Buck's Stove & Range Co., 37 S.W. 115; McGurry v. Wall, 122 Mo. 614; Freeman, Judgments, sec. 73, p. 103. (2) The people thought that a judge was as likely to commit error in granting a new trial as in making any other ruling. Therefore the legislature has passed an act giving a litigant the right to have such ruling reviewed by this court. A clear departure from the former practice of this court is thus seriously emphasized and commanded. Ensor v. Smith, 57 Mo.App. 584; Bunyan v. Railroad, 127 Mo. 12; Parker v. Cassingham, 130 Mo. 348; Millar v. Madison Car Co., 130 Mo. 517; Candee v. Railroad, 130 Mo. 142; Herdler v. Buck's Stove & Range Co., 37 S.W. 115. (3) The idea born of sympathy that a plaintiff without sufficient evidence at the close of his case ought to have a new trial, to see if he could not do better next time, has never met with favor in this court, and ought to be utterly repudiated anywhere. (4) There was no measure of damage shown, and no damage proven. The value of the property without the contemplated buildings, and the value of the property as it might have been with the contemplated buildings was not shown. (5) Even if plaintiff could recover as remote damage the deficit on the notes, such recovery must be controlled by, and be subservient to, the direct original measure of damages, to wit, the amount of money representing the difference between the value of the property without buildings and its value with the buildings.

Dawson & Garvin for respondents.

(1) To warrant reversal of an order for a new trial it must clearly appear that no error occurred that may possibly have been prejudicial to the party who applied for the new trial. Ittner v. Hughes, 133 Mo. 692. (2) If the action of the court in granting the new trial can be sustained upon any grounds set forth in the motion for that purpose, it is the duty of this court to do so, although the trial court may have given the wrong reasons for sustaining the motion, and this even though the ground upon which the motion was sustained had been of record. Hewitt v. Steele, 118 Mo. 474. (3) The presumption will be indulged in favor of the correctness of the action of the court below in granting the new trial, and this court will not feel authorized to say the discretion thus exercised, which rightfully belongs to the trial court, has been unjustly or arbitrarily exercised in this instance. Hewitt v. Steele, 118 Mo. 474; Bunyan v. Railroad, 127 Mo. 12. (4) An instruction of nonsuit and an instruction to find for plaintiff for nominal damages only are not wholly analogous. On nonsuit voluntarily or involuntarily taken another action may be brought within one year. Hewitt v. Steele, 118 Mo. 474. Plaintiff can not bring a new suit upon its cause of action, and has no remedy except by a new trial thereof. Jackson v. Railroad, 54 Mo.App. 644; Kidd v. McCormick et al., 83 N.Y. 391. (5) If the plaintiff was entitled to more than one cent damages the order granting a new trial should be affirmed without regard to whether the exact amount of its damages in excess of one cent can be determined from the evidence.

Gantt, P. J. Sherwood and Burgess, JJ., concur.

OPINION

Gantt, P. J.

This is a civil action to recover damages for a breach of the following bond executed by the defendants:

"Know all men by these presents: That we, John R. McDonald as principal, and A. K. Florida, Francis G. Flannagan and Benjamin F. Hammett as securities, all of the city of St. Louis and State of Missouri, are held and firmly bound unto the United Real Estate Company, a corporation organized and existing under the laws of the State of Missouri, in the full sum of thirty-five thousand dollars, lawful money of the United States, for the payment of which, well and truly to be made, we hereby bind ourselves, our heirs, administrators and assigns firmly by these presents. Sealed with our seals and dated the 28th day of October, 1892.

"The condition of the above obligation is such that whereas, the said United Real Estate Co. has sold and conveyed to the said John R. McDonald the following described real estate in the city of St. Louis, State of Missouri, to wit: A lot or parcel of ground situated in city block No. 495 of said city of St. Louis, and more particularly described as follows: Beginning at a point where the east line of Eighteenth street intersects the south line of Chestnut street; thence eastwardly along said south line of Chestnut street one hundred and sixty-two feet and one half inch to a point; thence southwardly and parallel with Eighteenth street, seventy-two feet, ten and one half inches, more or less, to an alley fifteen feet wide; thence westwardly along the north line of said alley one hundred and sixty-two feet and one half inch, more or less, to the said east line of Eighteenth street; thence northwardly along said east line of Eighteenth street seventy-two feet and eleven inches, more or less, to the point of beginning. Being same property acquired by said United Real Estate Co. by deeds recorded in the recorder's office of the city of St. Louis in book 952 at page 172, book 953 at page 188, and book 964 at page 173. And, whereas, the said John R. McDonald did agree as one of the conditions of said sale to erect upon said property ten two or three story brick and stone buildings at a cost of not less than thirty-five thousand dollars, and to have the said buildings completed and all the labor and materials entering thereinto fully paid for on or before June 28, 1893; and, whereas, said United Real Estate Co. sold said property to said McDonald at a lower price than it would have done except for said agreement on the part of said McDonald to erect said buildings, and said agreement was a material inducement to said sale. Now, therefore, if the said John R. McDonald, his heirs, administrators or assigns, shall cause to be erected upon said property ten two or three story brick and stone buildings, at a cost of not less than thirty-five thousand dollars, and shall have the same completed and all labor and materials entering thereinto paid for on or before June 28, 1893, then this obligation to be void; otherwise to remain in full force and virtue.

"John R. McDonald, [SEAL]

"Alonzo K. Florida, [SEAL]

"Francis G. Flannagan, [SEAL]

"Benjamin F. Hammett. [SEAL]

"Signed, sealed and delivered in the presence of us this fifteenth day of December, 1892.

"Jules V. Boucher,

"Geo. W. Rorer."

The breach assigned is that said McDonald, his heirs administrators or assigns, "did not cause said buildings or any less number thereof at a cost of $ 35,000 or any other sum to be erected on said real estate on or before June 28, 1893, or at any other time," and by reason of said breach plaintiff is damaged in the sum of $ 18,569.79; that said Hammett has paid $ 6,400 in discharge of his liability on said bond and that a balance of $ 12,169.79 is still due plaintiff from defendants. A. K. Florida having died after the execution of the bond, the Mississippi Valley Trust Company, his administrator, was made party defendant. The defendants McDonald, Flannagan and the administrator of Florida, each filed separate answers. These answers admit the sale; aver that the price agreed upon was the full intrinsic market value of the property and not a sum less than the real value in view of the erection of the proposed buildings; admit the giving of the deed of trust and the failure to erect the houses; the subsequent sale and purchasing of the said real estate by plaintiff; pleads an accord and satisfaction by purchase of the property by...