Opinion
January 9, 1939.
1. — Principal and Agent. Evidence held to show authority of superintendent in charge of all operations of lessee of quarry to make oral agreement with lessor as to dumping of dirt from quarrying operations.
2. — Mines and Minerals. Whether lessee of quarry breached oral contract with lessor regarding dumping of dirt was for jury.
3. — Appeal and Error. Appellate court is reluctant to convict trial court of error in granting first new trial in a cause, giving due consideration of better opportunity of trial court to see, hear and observe witnesses and matters incident to trial.
4. — Appeal and Error. Appellate courts in passing upon action of trial court in granting new trial, confine their deliberations to judicial errors and failure of evidence.
5. — New Trial — Appeal and Error. Trial court, in granting new trial, may do so on consideration of weight of evidence, and with exception of equity cases, appellate courts cannot interfere if there be shown any substantial evidence.
6. — New Trial — Appeal and Error. In passing on new trial, trial court may grant same on conclusion that material evidence is false, based upon his observation of the witness; before appellate courts give such consideration, the printed record must clearly show perjury.
7. — Evidence. Evidence may be insufficient by reason of false swearing.
8. — New Trial. Section 1003, Revised Statutes Missouri, 1929, restricting granting of second new trial, is not involved in motion for new trial after first trial of cause.
9. — Appeal and Error. Judgment granting new trial would be sustained by Court of Appeals, having due deference to trial court, and indulging presumption that new trial was granted by reason of insufficiency of evidence as judged by trial court, who had opportunity to judge as to perjury or mistake on part of witnesses.
10. — Mines and Minerals. Where lessor and lessee of quarry on alleged oral contract whereby, if dirt was deposited on lessor's property, same was to be properly graded, evidence of cost of grading and surfacing should be admitted.
11. — Mines and Minerals. An action by lessor against lessee of quarry on alleged contract to grade and surface property where dirt was dumped is an action for damages for breach of contract, and element of damages based upon depreciation in real estate value as in tort is not proper.
Appeal from Andrew Circuit Court. — Hon. R.B. Bridgeman, Judge.
AFFIRMED.
G.C. Sparks, R.E. Culver and Petree Wright for appellant.
(1) The verdict is responsive to the evidence and the law under the evidence. The case alleged in the petition was proven by substantial, uncontradicted testimony. The presumption that the trial court sustained the motion for new trial on the ground that the verdict was against the evidence, against the weight of the evidence, and against the law under the evidence, does not obtain in this case. Castorina v. Hermann, 104 S.W.2d, l.c. 300-1; Section 4559, Mo. Ann. St., page 2005; State v. Southern Securities Co., 60 S.W.2d 632-4; Buehler v. Baum, 71 S.W.2d 851-6; Bush v. Railroad, 164 Mo. App. 420, 426-7. (2) The trial court did not admit any incompetent, immaterial or irrelevant evidence on the part of plaintiff, and defendant's allegation in the motion for new trial is vague and indefinite and did not furnish ground for granting a new trial. Bartner v. Darst, 285 S.W. 449. (3) Complaint upon motion for new trial that court excluded competent, relevant and material testimony is not sufficiently definite to furnish ground for review. Bartner v. Darst, 285 S.W. 449. (4) The Court did not err in overruling defendant's Instruction No. 1 in the nature of a demurrer to the evidence of plaintiff. Young v. Levine, 31 S.W.2d 978; Took v. Wells, 53 S.W.2d 389, 331 Mo. 249; Smith v. Fordyce, 88 S.W. 679, 190 Mo. 1; Liebaart v. Hoehle's Est., 111 S.W.2d 925; LaFont v. Richardson, 119 S.W.2d 25. (5) The Court did not err in refusing defendant's Instructions Nos. 2, 3, 4 and 5 in the nature of demurrers to plaintiff's case. Parker-Washington Co. v. Dennison, 155 S.W. 797, 249 Mo. 449; Cathey v. Railroad, 130 S.W. 130, 149 Mo. App. 134; Bacon Piano Co. v. Wilson, 62 S.W.2d 774; Rosenbaum v. Gilliam, 101 Mo. App. 126; 13 C.J. 311; Green v. Higham, 161 Mo. 333; 13 C.J. 783, sec. 994; Kansas City ex rel. v. Davidson et al., 88 S.W. 791, 154 Mo. App. 269. (6) The Court did not err in giving Instructions A, B, C, D, E, and F at the request of plaintiff. 17 C.J. 852, sec. 169; Kahn v. Schoen Silk Corp., 147 Mo. 516, 44 A.L.R. 285; Haysler v. Owen, 61 Mo. 270; Simmons v. Wittman, 88 S.W. 791, 113 Mo. App. 357; Kansas City ex rel. v. Davidson et al., 133 S.W. 365, 154 Mo. App. 269. (7) The fact that no instruction was requested by plaintiff submitting the question of agency of Mr. Lynch and his authority to contract on behalf of defendant was not error. The Court is not required in civil cases to instruct on all questions, whether requested or not. Mere non-direction is not error. Dingham v. St. Louis Pub. Service Co., 52 S.W.2d 584-586; Pavlo v. Forum Lunch, 19 S.W.2d 510. (8) Instruction No. A is not erroneous. Plaintiff's case was not submitted on the theory of Agency. Buffalo Trust Co. v. Producers' Exchange, 224 Mo. App. 199, 23 S.W.2d 644. (9) The verbal contract made by plaintiff was proven by the evidence to be valid and binding on defendant. Sec. 4559, Mo. Ann. St., page 2005; Shelby v. Conn. Fire Ins. Co., 262 S.W. 686, 218 Mo. App. 84; State ex rel. v. Stoutt, 253 S.W. 43, 215 Mo. App. 361-3. (10) The evidence showed that Lynch was superintendent of the defendant company in charge over all the negotiations and operations relative to the Seymour quarry. He was the " alter ego" and any agreements made by him relative to the conduct of the business of the defendant over which he had charge was as binding on the concern as if made by the president himself. State ex rel. v. Stoutt, 215 Mo. App. 361; Rosenbaum v. Gilliam, 74 S.W. 507, 101 Mo. App. 126. (11) There was a valid consideration for the verbal contract alleged in plaintiff's petition and proven by the evidence. There was a benefit to defendant, to-wit, it acquired in return for its promise, a legal right to which it would not otherwise be entitled. 13 C.J. 311; Green v. Higham, 161 Mo. 333; 13 C.J. 783, sec. 994. (12) The Instruction No. 5 asked by defendant was properly refused by the Court, as it fixed an improper rule for the damages suffered. Instruction No. B, given on the part of plaintiff announced the correct rule for measuring the damages. The measure of damages in case of a breach of contract is the amount which will compensate the injured person for the loss which a fulfilment of the contract would have prevented. The damage is what it will cost to complete the contract. 17 C.J., 882, sec. 187; Kansas City v. Davidson, 154 Mo. App. 269, 133 S.W. 365. (13) The damages assessed by the jury in the sum of $800 are not excessive. The proof introduced, and not disputed, was that it would take a larger sum to complete the contract. (14) Plaintiff's petition stated a cause of action against defendant, and was sustained by proof, therefore plaintiff under the law and the evidence was entitled to the verdict rendered.
Ed. Kelso, D.D. Cross and DuBois Miller for respondent.
(1) This Court will assume that motion for new trial was granted, and it should be sustained on any ground contained in the motion. This includes sustaining the motion on the ground that the verdict is against the evidence, although no evidence was offered by defendant. Vitagraph v. Cantwell, 60 S.W.2d 683; Darnell v. Lyons, 51 S.W.2d 159; National Corporation v. Roberts, 80 S.W.2d 243; Farmers State Bank v. Miller, 300 S.W. 833, l.c. 838; McWilliams v. Railroad, 172 Mo. App. 318, l.c. 328; Birdsong v. Jones, 30 S.W.2d 1094, l.c. 1097; Castorina v. Herrmann, 104 S.W.2d 297, l.c. 300; Riche v. City of St. Joseph, 32 S.W. 578, l.c. 579. (3) Defendant's motion for new trial is sufficiently definite to present the questions involved, and care of Bartner v. Darst, 285 S.W. 449, relied on by plaintiff, holding contrary, has been expressly overruled. Chawkley v. Wabash Co., 297 S.W. 20, l.c. 30; Murphy v. Tumbrink, 25 S.W.2d 133, l.c. 135. (3) Under the law and the written contract in this case, there is an implied right for defendant to have, and plaintiff to furnish, a reasonable place for depositing the dirt necessarily removed in quarrying the rock. Any purported verbal contract was merged in the then existing and subsequent extension written contract. Chouteau v. Railroad Co., 122 Mo. 376; Crabb v. School District, 93 Mo. App. l.c. 261; 6 Ruling Case Law — Contracts, page 856; Hutchinson v. Lord (Wis.), 60 Am. Dec. 388; 12 Am. Jurisprudence, page 766; Green v. American Railway Co., 34 S.W.2d 1039, l.c. 1042; Brumley v. McCormick, 17 S.W.2d 597; Home Insurance Co. v. Mercantile Co., 284 S.W. 834; Bisesi v. Farm Loan Co., 78 S.W.2d 871. (4) E.L. Lynch, under the evidence, did not, in fact, make an oral contract with plaintiff, and in any event, had no legal right or authority and could not make a contract binding on defendant. 7 Words and Phrases, First Series, 6792; 4 Words and Phrases, under subject of Superintendent; Munroe v. Ley Co., 156 F. 468, 84 C.C.A. 278; Salem v. McClintock (Ind.), 59 A.S.R. 330; Bixler Co. v. Riney, 7 S.W.2d 396; 21 R.C.L. 853, and 21 R.C.L., Perm. Supp., page 5117; 21 R.C.L., 905; Southern Co. v. Gilkey, 89 A.L.R. 888; Mattlock v. Paregoy, 173 S.W. 8, 188 Mo. App. 95; Johannes v. Fuel Co., 199 S.W. 1032; Beyer v. Coca Cola Co., 75 S.W.2d 642, Cit.; Corporation v. Byrnes, 38 S.W.2d 750; Brown v. Railroad, 67 Mo. 122; Barcus v. Ralls Co., 26 Mo. 102; National Bank v. Carleton, 67 S.W.2d 69, 334 Mo. 339; Hannon Co. v. Trust Co., 251 Mo. 553, l.c. 557; Fidelity Bank v. Dry Goods Co., 293 Mo. 194; Preston v. Mo. Co., 51 Mo. 43, l.c. 47; Hardware Co. v. Grocery Co., 64 Mo. App. 677. (5) No consideration for the purported verbal contract relied on by plaintiff. Smith v. Sickenger, 202 S.W. 262; Brown v. Irving, 269 S.W., l.c. 687; Koslosky v. Bloch, 191 Mo. App. 257; Estate of Henry Wood, 288 Mo. 589; Lappin v. Crawford, 186 Mo. l.c. 471; (6) Proper measure of damages is different in value of freehold immediately before and immediately after alleged injuries thereto. Robinson v. St. Joe, 97 Mo. App., l.c. 508; Faust v. Pope, 132 Mo. App., l.c. 296; Farrar v. Railroad, 101 Mo. App., l.c. 145; Coffman v. Railroad, 183 Mo. App. 623; Robinson v. Mining Co., 178 Mo. App. 531; Krebs v. Construction Co., 144 Mo. App. l.c. 653; McMillan v. Columbia, 122 Mo. App. 35.
We are called upon in this case to review the action of a Circuit Court who has ignored the provisions of section 1003, Revised Statutes of Missouri 1929, and given a new trial after verdict and judgment for plaintiff.
It appears that the plaintiff herein executed a lease or grant to the defendant for the exclusive right to remove, quarry and remove rock on plaintiff's farm in Holt County, Missouri. The land leased is described as follows, to-wit:
"Section 4, Township 59, Range 38, containing five acres more or less, for a term of one year beginning 30 days of Oct. 1933, and ending 30 days of Oct. 1934, lessee shall have the right to renew this lease upon giving lessor thirty days written notice before the expiration of this lease."
It appears that a question arose concerning the dumping of dirt and refuse incident to quarrying. The plaintiff bases her cause of action on an alleged oral contract with defendant touching the placing of the dirt and refuse. The allegations of plaintiff as to the oral contract are as follows:
"That defendant would be permitted to deposit a large amount of dirt on the yard in front of plaintiff's dwelling and extending to the west along the edge of the bluff from the said dwelling of the plaintiff, and defendant agreed that in consideration of being permitted to deposit the dirt upon the yard and lots of defendant that they would grade the yard and lot on a gradual slope from the dwelling and from the bluff to the north and west of the dwelling down to the road above referred to and cover the surface with top soil and put it in the shape that it could be put in grass as it had been before the contract was entered into; that the defendant did remove a large amount of dirt and dumped it in a large pile on the lot to the west of the dwelling house and failed and refused to fill in the lot in front of the house as it had agreed to do and to grade down the remainder of the lot to the west of the house upon which the dirt was piled, or to cover the dirt to be placed on said yard with black soil so it would grow grass."
The prayer to plaintiff's petition is as follows:
"Wherefore, all the premises considered plaintiff states that she has been damaged by the default and miscarriage of defendant as above set out in the sum of Fifteen Hundred Dollars ($1500.00) for which she asks judgment together with her costs."
The defendant joins issue by admitting the agreement in writing to quarry and remove rock and makes general denial of the oral contract. Defendant for further answer specially denies as to the oral contract. Further answering defendant alleges that the dumping and deposit of dirt and refuse was incidental to the written contract and a part of and necessary in the quarrying of the rock and that all that was done and performed by defendant was under the terms of and in pursuance of the written contract.
Further answering defendant alleges as follows:
"Further answering plaintiff's said petition, defendant states that the alleged verbal contract in plaintiff's said petition is wholly without consideration, that plaintiff did not thereunder pay to defendant or part with or deprive herself of anything of value and defendant did not receive anything of value or any benefit whatever."
Trial under the issues joined was before a jury. Verdict was for plaintiff in the sum of $800. Judgment was in accordance.
Defendant filed motion for new trial and same was granted and from the action of the Court in granting a new trial plaintiff appeals.
OPINION.
In our opinion we will continue to designate appellant as plaintiff and respondent as defendant.
The fact that the trial court has assigned no reason for his action has necessitated a careful study of the record.
The case was submitted at the close of the plaintiff's evidence. During the cross-examination of plaintiff's witnesses the defendant placed in evidence numerous photographs showing conditions of plaintiff's premises after dumping was done.
The record shows that the plaintiff presented her case in accordance with her pleadings. The evidence of plaintiff and her husband is clearly to the effect that the oral contract alleged was duly made with Mr. Lynch, Superintendent in charge of all operations and it is shown that that the negotiations resulting in the entering into of the written lease was with Mr. Lynch.
Objections were made by defendant upon the alleged ground that Mr. Lynch had not authority to bind defendant in an oral contract. However the evidence we conclude is ample as to Mr. Lynch's authority to enter into such a contract. We, therefore, conclude that there is no grounds presented for granting of new trial based upon want of authority in Mr. Lynch.
The evidence presents much testimony to the breaching of the oral contract by defendant and the testimony of damage for breach exceeds the amount of verdict and judgment. We therefore conclude that unless the trial court, who was present, presiding and with opportunity to see and observe the witnesses, concluded their testimony to be false, that plaintiff clearly made a case for the jury.
Throughout the trial the defendant's counsel continually interposed objections to the evidence upon the theory that the yard of plaintiff was part of the ground leased for the quarry and that the dumping of the refuse upon plaintiff's yard was in accordance with the written lease. So insistent was counsel on this point that a larger portion of the record herein is composed of repeated objections and colloquy between court and counsel.
Much confusion arises by reason of repeated objections after the Court has directly ruled on the question. The defendant at the close of plaintiff's testimony, in addition to asking a general demurrer, offered one instruction directly upon the theory that all that was done was done and performed under the written lease and one instruction based upon the lack of authority of Lynch to bind defendant in the alleged oral contract.
An examination of the testimony shows that all of the testimony is to the effect that plaintiff's yard was no part of the ground leased. Further an examination of the contract shows that therein is found no provision that would justify dumping the refuse upon plaintiff's yard. As before stated testimony from which authority of Lynch can be inferred is ample. Again we conclude that no grounds for granting a new trial is presented in respect above, unless the trial court concluded the testimony false.
We conclude that the instructions offered by defendant were rightfully refused and that the instructions given for plaintiff were proper.
With our conclusions as above set forth, we are confronted with the often repeated declarations of courts of review touching the granting of a new trial by the trial court after the first trial of a cause.
The trial court is the peoples forum and the presiding judge therein has opportunity of observing matters incident to trial, hears the witnesses and observes their conduct. In fact the trial court is in a position to pass upon matters that no court of review can grasp by a review of the cold record before the court.
Due to the above well known situation, appellate courts have deemed it a wise course to give due consideration of the better opportunity of the trial court to see, hear and observe and to be reluctant in convicting the trial court of error in granting the first new trial in a cause.
As stated in Huran v. Ry., 155 Mo. 216, 55 S.W. 1035, appellate courts, in passing upon the action of the trial court in granting, confine their deliberations to judicial errors and failure of evidence. In the case at bar we find no judicial error in matters of law and we are left to consideration of failure of evidence.
A trial court in granting of a new trial may do so on consideration of weight of evidence. With the exception of in equity cases appellate courts can not interfere if there be shown any substantial evidence.
In passing upon new trial the trial court may grant same on his conclusion that material evidence is false based upon his observation of the witness. Before appellate courts give such consideration the printed record must clearly show perjury.
In Harris v. McQuay, 242 S.W. 1011, it is held that as to the first granting of a new trial, appellate courts may indulge in the presumption that the new trial was granted by reason of insufficiency of evidence. Evidence may be insufficient by reason of false swearing.
There are two sections of our statutes governing the action of a trial court in granting of new trial.
Under the provisions of Section 1002, Revised Statutes Missouri 1929, it would appear to be that there is no limit on the power of the court to grant a new trial on either of the grounds therein set forth. One of the grounds enumerated is that if the court is satisfied that perjury or mistake has been committed by a witness, and is also satisfied that an improper verdict or finding was occasioned by any such matters and that the party has a just cause of action or defense, it shall, on proper motion of the proper party grant a new trial, . . ."
Section 1003 following restricts as to granting of a second new trial. Section 1003 is not involved herein.
The motion for a new trial filed by defendant in the lower court assigned among other things as follows: "Because the verdict in said cause is against the evidence, the weight of the evidence and the law under the evidence."
The defendant in its brief herein urges as to the above. Based solely upon the ground stated above and the deference due the trial court and further, due to the fact that we indulge in the presumption that the new trial was granted by reason of the insufficiency of evidence as judged by the trial court who had an opportunity to judge as to perjury or mistake on part of witnesses, we feel impelled to sustain the action of the trial court.
As this case will probably be again tried, we call attention to the fact as shown by the record before us that questions were directly asked witnesses touching elements of damages as to grading and top surfacing of the yard in question that were never answered by reason of interruptions occasioned by repeated objections based upon the defendant's theory. The only questions permitted to be answered was as to the cost of removal of surplus dirt and refuse and while the testimony as to the cost of this removal exceeds the amount of judgment given, still the record is blank as to the cost of grading and surfacing. On a retrial such evidence should be permitted.
Further in the trial defendant urged that the element of damages was based upon depreciation of value in real estate as in tort. This is an action for damages for breach of the contract and was properly submitted as such.
For reasons given above the judgment granting a new trial is affirmed. Shain, P.J., and Bland, J., concur; Kemp, J., not sitting because not a member of the court when argued and submitted.