Warder v. Henry

• Decision Date: 06 November 1893
• Citation: 23 S.W. 776,117 Mo. 530
• Parties: Warder v. Henry, Appellant
• Court: Missouri Supreme Court

23 S.W. 776

117 Mo. 530

Warder v. Henry, Appellant

Supreme Court of Missouri, First Division

November 6, 1893

Appeal from Jackson Circuit Court. -- Hon. R. H. Field, Judge.

Affirmed.

Jefferson Brumback for appellant.

(1) The deed of trust of March 10, 1888, was not well acknowledged and the record thereof was not constructive notice to Crawford when latter took his leases; Laws, 1883, p. 20; Huse v. Haines, 104 Mo. 103; 1 Revised Statutes 1879, secs. 681, 743, 672; Hughes v. Morris, 19 S.W 481; Owen v. Baker, 101 Mo. 407; Agan v. Shannon, 103 Mo. 661; Hughes v. McDivitt, 102 Mo. 77; Wilson v. Quigley, 107 Mo. 100; 1 American and English Encyclopedia of Law, p. 154; Salmon v. Huff, 15 S.W. 1047. The circuit court erred in refusing instructions 8 to 14 asked by Henry. (2) The Crawford lease and possession thereunder, without actual or constructive notice of the deed of trust of March 10, 1888, was a breach of the covenants in the warranty deed of January 10, 1890, to Henry, and constituted an element of defense to the $ 10,000 demand sued on in first count of Warder's petition. Blondeau v. Sheridan, 81 Mo. 545; Rawle on Covenants for Title [5 Ed.], sec. 138, p. 181, and cases cited; Kellogg v. Malin, 50 Mo. 503; Williamson v. Hale, 62 Mo. 406; Clore v. Graham, 64 Mo. 249, 255; Rawle on Covenants for Title [5 Ed.], secs. 88, 89, 291; King v. Kilbride, 58 Conn. 109; McLeod v. Skiles, 81 Mo. 604. The circuit court erred in refusing instructions 7 to 13 asked by Henry, and giving instructions 1 and 2 asked by Warder. (3) The second defense of Henry's answer to first count of petition of another suit on same cause of action in this state was good; 1 Revised Statutes, 1889, secs. 2043, 2047; Smith v. Lathrop, 84 Am. Dec. 452, and notes; 6 Wait's Actions and Defenses, p. 397, and following; Laws, 1849, p. 80, secs. 3, 6; 2 Revised Statutes, 1855, p. 231, sec. 6; Endlich on Interpretation of Statutes [1 Ed.], secs. 200, 201, 202, 204, and cases cited; State v. Boogher, 71 Mo. 631; Lee v. Hefley, 21 Ind. 99; Commonwealth v. Churchill, 5 Mass. 174; Parker v. Colcord, 2 N.H. 36; Hope v. Alley, 11 Tex. 259; Gamsley v. Ray, 52 N.H. 513; Bond v. White, 24 Kan. 45; Beyersdorf v. Sump, 4 N.W. 101; Witter v. Neeves, 47 N.W. 938; Halloway v. Halloway, 103 Mo. 283; State v. Dougherty, 45 Mo. 293, 297; Downer v. Garland, 21 Vt. 362. (4) The circuit court erred in its action respecting the demand of $ 1,775 of Warder, sued on in second count of petition, pro rata value of insurance policies assigned to Henry by Warder Grand Opera House Company. (5) The circuit court erred in giving instruction 4 for Warder as to injury to orchard. Gurley v. Railroad, 93 Mo. 451; Wiser v. Chesley, 53 Mo. 549; Mueller v. Putnam, 45 Mo. 84; 3 Sutherland on Damages [1 Ed.], p. 303, and cases cited.

Elijah Robinson for respondent.

(1) The deed of trust of March 10, 1888, was properly acknowledged and the record thereof was notice to Crawford when he took his lease. "It was not necessary that the certificate should state that the grantor was personally known to the officer, but it is sufficient if the certificate shows that the grantor was known to him." Alexander v. Merry, 9 Mo. 514; Robson v. Thomas, 55 Mo. 581. "It is not necessary that a certificate should follow the language of the statute. It is sufficient that there is a substantial compliance with the law." Hughes v. McDivitt, 102 Mo. 83. (2) The warranty deed made by the opera house company to Henry, and the contract of January 10, 1890, were parts of the same transaction and are to be construed together. Hach v. Hill, 106 Mo. 18; Brownlee v. Arnold, 60 Mo. 79; Lewis v. Ins. Co., 3 Mo.App. 372. (3) When the intention of the parties can be ascertained from the instruments, it will always control, although apparently in conflict with technical provisions. "Greater regard is to be had to the intention of the parties than to any particular words which they may have used in the expression of their intent." Ford v. Beech, 11 Q. B. 867. "The intention of the parties is the polar star in construing written instruments." Bradley v. Packet Co., 13 Pet. 89; Mauran v. Bullus, 16 Pet. 528. "In the interpretation of written contracts the rule most conspicious and wide-reaching, is that the contract should be so construed as, if possible, to carry out what the contracting parties meant." Belch v. Miller, 32 Mo.App. 386; County v. Wood, 84 Mo. 509. (4) The trial court committed no error in holding that the former suit, if dismissed before the trial of this case, constituted no defense to this action. (5) The court did not err in permitting the defendant to enter his remittitur. This was an independent branch of the case, entirely distinct and separate from other questions involved, and inasmuch as there was a separate finding on this question, there is no reason why the plaintiff should not have been permitted the amount thus found in his favor. Loyd v. Railroad, 53 Mo. 509; Sedgwick on Damages [6 Ed.], 765; Belknap v. Railroad, 49 N.H. 358; McIntyre v. Railroad, 37 N.Y. 278; Railroad v. Herbert, 116 U.S. 644; Rolling Mills Co. v. Gillham, 100 Ill. 55. (6) Again, the defendant may move an additional remittitur in this court. Hahn v. Sweazea, 29 Mo. 199; Tilford v. Ramsey, 43 Mo. 320; Loyd v. Railroad, 53 Mo. 514; Cook v. Railroad, 63 Mo. 397; Johnson v. Morrow, 60 Mo. 340; Miller v. Hardin, 64 Mo. 545; Keene v. Schnedler, 92 Mo. 527; Kinsey v. Wallace, 36 Cal. 462.

OPINION

Black, P. J.

The petition in this case sets up three separate and distinct causes of action. The first is based upon a writing, dated twentieth of January, 1890, whereby defendant Henry agreed to pay to the plaintiff, Warder, on or before six months after date, the sum of $ 10,000, to be paid in bonds of a description fully set forth, or, at the option of Henry, in cash.

In the second, the plaintiff states that defendant is indebted to him in the sum of $ 1,775, on account of the pro rata unexpired premiums on certain fire insurance policies held by the Warder Grand Opera House Company on its property, of which property Henry became the purchaser, and which policies were duly assigned to said Henry. The plaintiff admits that he owes defendant $ 351.65 on account of certain other unexpired policies turned over by defendant to him. Other items were set out in this cause of action, but as they are not in dispute in this court they need not be mentioned.

It is alleged in the third cause of action that defendant, while in possession of a certain farm as the lessee of the plaintiff, unlawfully permitted cattle to break down, injure and destroy fruit and ornamental trees on the farm, to the damage of the plaintiff in the sum of $ 1,600.

To an understanding of this case and the various defenses set up to the several causes of action, it is necessary to go back to the beginning of the transactions which give rise to this contest. The Warder Grand Opera House Company, a corporation, hereafter called the opera house company, owned certain property in the City of Kansas, known as the Warder Grand Opera House and the Hotel Warder. On the tenth of March, 1888, the corporation executed a deed of trust upon the before mentioned property to secure a debt of $ 85,000. This deed of trust was recorded the same day, though there is a claim made in this suit that it was not entitled to record because not properly acknowledged. Thereafter, and in the month of November, 1888, the opera house company leased that part of the property, known as the Warder Grand opera house, to one Crawford for a period of five years.

On the tenth of January, 1890, the opera house company, by its president and the defendant, Henry, made a lengthily written contract, whereby the company sold all of the first mentioned property to Henry, for the consideration of $ 350,000, to be paid as follows: First. To the National Bank of Commerce the sum of $ 150,000, on account of the said secured debt of $ 85,000, and of certain mechanic's liens, all then held by said bank; second, to convey to the opera house company, or to any person it might designate a farm of 500 acres in the state of Illinois, known as the Rossland Park farm, subject, however, to a mortgage thereon, of $ 50,000; third, to deliver to the opera house company or to its order, $ 40,000 worth of cattle then on the farm; fourth, a note payable to the opera house company, or its order, for $ 15,000; and fifth, "Said Henry shall also, within six months from time of conveyance to him, deliver to said opera house company, or to anyone it may designate, bonds to the amount of ten thousand dollars ($ 10,000) in the aggregate out of bonds aggregating $ 200,000, all of which shall be first mortgage bonds on the property particularly described in paragraph one of this contract, or may in lieu of said bonds pay said opera house company, or to its order, ten thousand dollars cash, and shall pay such cash if the bonds be not delivered within said six months."

The agreement recites the fact that the property was then being advertised for sale under the $ 85,000 deed of trust, and that Crawford held the above mentioned lease. The opera house company reserved the right to procure a cancellation of the Crawford lease, if it could do so; and in that event it agreed to convey the property to Henry by a warranty deed. It was further agreed that if the company could not procure a cancellation of the lease held by Crawford, then the property was to be sold under the deed of trust, and purchased by Henry at not less than $ 350,000, to be paid as before mentioned. The contract contains the further stipulation that, if Henry should take title under the trust deed, the said opera house company shall also make to him a warranty deed of the...