B. Roth Tool Co. v. Champ Spring Co.

123 S.W. 513, 146 Mo. App. 1, 1909 Mo. App. LEXIS 425

• Court: Missouri Court of Appeals
• Decided: November 30, 1909
• Status: Published

Opinion

REYNOLDS, P. J.

(after stating the facts). — ■ Counsel have made twenty-three assignments of error, which assignments they have discussed under twenty-four distinct heads. Grouping these, they may be said to cover eleven propositions. The first covers the refusal of the trial court to dismiss plaintiff’s case, defendant claiming that as parts of three amended petitions had been stricken out, plaintiff was out of court, and that the former decision of this court on this point is in conflict with a later decision of the Supreme Court. The second, being points three, four and five, is devoted to an argument of the proposition, that the lease in question created a tenancy at will and that the assignment of the lease by the lessees to plaintiff destroyed the estate created by the lease; that while a tenancy at will or an estate at will may be placed in the class of estates for years, that is so only for the purpose of notice; that it still remains a tenancy at will, and that the tenancy at will in this case ceased by an assignment by the lessee to the plaintiff, and that while the covenant to furnish steam might run with the land, it could not inure to the present plaintiff, even if an assignment had been shown, because of the destruction of the term and interest by ■ the assignment. The third proposition is, that there is no breach of the contract relied on shown. The fourth proposition, covering the seventh and eighth points, is addressed to the plea of res judicata, it being argued that the law of the case is limited to the points expressly decided, and that the judgment pleaded in estoppel in this case does not expressly cover the points that the assignment of a lease creating a tenancy at will defeats the lease, or that the covenant to furnish steam was satisfied by the alternative provision of the lease, it being further argued, that if these points are covered by inference by the former decision and if that decision establishes a different proposition of law, the decision ought to be overruled. The fifth group, embracing points nine, ten and fourteen, goes to the measure of damages, it being claimed that such prospective profits can only be recovered in an action for breach of contract as it could reasonably have been presumed were in contemplation of the parties when they made the contract, and that the alternative provision of the contract clearly negatives the idea that the parties could, have intended that prospective profits could he recovered; on the contrary, the lease carries the idea that the lessor could allow the the lessee for the loss of steam while it was shut off, and that the allegation in the petition, on which the case was tried is that the loss of $1200 alleged to have been sustained by failure to furnish steam for two large hammers, was alleged to be not the direct loss of the use of the hammers, but the indirect loss of profits by reason of not being able to complete certain contracts. It is claimed that this is too general to tender an issue of fact, and that the loss of profits are special damages which must be stated in the petition with reasonable certainty. The sixth group, covering points eleven, twelve and thirteen, go to an attack on the proof offered, it being argued that the entries in the books from which the statements were testified to by witness to have been compiled, were entries res inter alios acta and not competent against this defendant and that the synoptical statement used in evidence by a witness is a mere conclusion which the witness was allowed to make and which was the very conclusion that the jury were required to find. The seventh proposition, embracing points fifteen, sixteen and seventeen, attacks the award of punitive damages on the ground that there is no evidence, or no circumstances in evidence either of malice or gross negligence, or that the act complained of was wanton or malicious. The ninth group, covering points eighteen and nineteen, relates to errors alleged to have been committed at the trial, particularly by the trial judge in asking leading questions and commenting upon the testimony, it being further claimed' that the remarks of the court in the presence of the jury, in commenting on the conduct of defendant’s counsel, were prejudicial to defendant. The tenth group, embracing points twenty, twenty-one and twenty-four, cover the proposition that the action being for breach of a covenant of the lease, and not trespass nor an action ex delicto} the measure of damage is the difference in value ■of the premises with the steam furnished and their value with steam not furnished, and does not cover speculative profits, as in an action in tort, and that •even under the instructions of the court as to the measure of damage, the damages awarded by the jury are unsupported by the testimony and are excessive. The tenth proposition, covered by the twenty-second point, is on the alleged error of the court in refusing to grant a reference of the cause as demanded by defendant; •and the final or eleventh proposition is embraced by the twenty-third point, that there is no averment in the petition of the assignment of the lessee’s interest in the lease to plaintiff; that no assignment was produced ■or introduced in evidence and mere occupancy will not be sufficient to constitute plaintiff the assignee of the lease in question.

We shall not undertake to follow all of these propositions in detail; in fairness to counsel for the defendant, who have zealously and ably compiled authorities and argued out the propositions which they rely upon, we give them the benefit of placing on record the positions which they have advanced and on which they found their claim for a reversal of the judgment of the circuit court in this case.

The first point of contention, and one very strenously argued, is that this court, in the decision of this case when last before it, that decision reported under the same title of B. Roth Tool Co. v. Champ Spring Co., in 122 Mo. App. 603, has gone contrary to the decision of the Supreme Court in the case of Sidway v. Land & Live Stock Co., 197 Mo. 359, it being claimed that the Sidway decision had not then been promulgated. It is further claimed that the decision of the Supreme Court in the Sidway case overrules Mnnford v. Keet, 154 Mo. 36, which this court had followed in its former decision. We are obliged to differ with counsel on this contention. The Sidway case announces the law as it is in cases where the whole petition has been adjudged insufficient; the Munford case and our decision in the 122 Mo. App., were ’on cases in which parts only of the pleading were stricken out, enough remaining to state a cause of action. That decision, too, is in this very same case at bar. Even if we had decided that case incorrectly, that decision, on this point, is the law of this case. While we might decline to apply it in other cases between other parties, as far as these parties and this case is concerned, we cannot do so; it must stand as the law of this case. We will treat this matter of res judicata more fully when we come to another proposition. But that we may not be misunderstood, we add, that not resting upon the proposition of res judicata, we hold that the former decision of this court on this point is correct, is a proper statement of the law, and in no manner in conflict with or overruled by the decision of the Supreme Court in the Sidway case.

Notwithstanding the very able and exhaustive brief and argument of the learned and industrious counsel for the defendant as to the character of the lease, whether it is a monthly tenancy or one at will or for years or as to its assignability, and as to whether the plaintiff is entitled to sue on the covenants thereof, that is as to whether, lacking a written assignment, plaintiff is entitled to an action for the breach of any of the covenants in the lease, while recognizing the profound learning displayed by those counsel, we are compelled to hold that all of their argument on these matters is futile in this case. This is so for the very sufficient reason that, in our view of the law and on careful consideration of the decision of this court in the case of B. Roth Tool Company v. Champ Spring Co., 93 Mo. , every one of these propositions, now relied upon by counsel, is covered and that so completely as to settle, on these propositions, not only the fact but the law as applicable to this case. In other words, it is our conclusion that the doctrine of res judicata,, applied to this case, precludes this court from further consideration of these questions between these parties. In order that there may be no mistake about our ruling on this matter and to put it in the broadest possible light,as we understand the doctrine of res judicata, as interpreted by the great weight of American authority and by our- own court, the question as to the character of the lease and the term and the tenancy thereby created, and as to the fact of plaintiff’s succession to the rights of the lessees named, and as to the rights of plaintiff as such successor to enjoy the use of the steam to the end of the six months named in the notice, and the unlawfulness of the act of the defendant in turning off steam and power and keeping it turned off for from ten to fifteen days and until ordered to turn it on again under the mandatory injunction which was issued in the case before referred to, and that in so doing it rendered itself liable in ■ damages to plaintiff, whether the conclusion arrived at by this court on these points was right in law or not, or whether its conclusion upon the facts was correct or not, that case, on all these propositions, between these parties, is res judicata. .

Referring to the text-writers, one of the most universally accepted of them, Black, in his work on the law of judgments (2 Ed.), p. 764, sec. 504, states that there are two main rules which govern the subject of estoppel by judgment which may be deduced from the general result of all the authorities. The first is, that “A point which was actually and directly in issue in a former suit, and was there judicially passed upon and determined by a domestic court of competent jurisdiction, cannot be again drawn in question in any future action between the same parties or their privies, whether the causes of action in the two suits be identical or different.” And the second rule is, that “A judgment rendered by a court of competent jurisdiction, on the merits, is a bar to any future suit, between the same parties or their privies, upon the same cause of action, so long as it remains unreversed.” Or, to put it differently, “The doctrine of res judicata is plain and intelligible, and amounts simply to this, that a cause of action once finally determined, without appeal, between the parties, on the merits, by a competent tribunal, cannot afterwards be litigated by new proceedings either before the same or any other tribunal.” Treating further of the same matter, at section 508, the text-writer states, that the rule as to res judicata “has no reference to the form or the object of the litigation in which the particular fact is determined which is thenceforth to be deemed established as between the parties to the dispute. The form or object of the prior litigation does not alter the conclusive effect of the judgment or decision.” “It is not essential,” says this writer at section 514, “to the operation of a judgment or decree as an estoppel, that it should be legally right; it is enough if a court having jurisdiction has decided' the point in issue. . . . Hence when a judgment of a court of general jurisdiction is offered as evidence in a collateral suit, and is pertinent to the issues in such collateral suit, the judgment, however erroneous, is admissible, and is conclusive upon the point to which it speaks, unless it is made affirmatively to appear that the court which rendered it had no jurisdictiqn of parties or subject-matter.” At section 518, the same author states the law to be that, “In the application of the principle of res judicata, there is no difference between courts of law and courts of equity; when an issue of fact or of law has been adjudicated upon the merits in either tribunal, it cannot be again litigated in the other.” A wealth of authority in support of the proposition laid down by the text-writer will be found in the notes to the sections referred to. To the same effect is Bigelow on Estoppel (5 Ed.)', chapter 2.

In the case of Beloit v. Morgan, 7 Wall. (U. S.) 619, Mr. Justice Swayne (1. c. 622), after referring to» the fact that the court in the case under consideration had full jurisdiction of the parties and the subject, says: “Under such circumstances, a judgment is conclusive, not only as to the res of that case, but as to all further litigation between the same parties touching the same-subject-matter, though the res itself may be different.”

Our own Supreme Court, in Chouteau v. Gibson, 76 Mo. 38, in a very thorough examination and discussion of the question of res judicata, quotes with, approval at page 47, Cooley on Constitutional Limitations, 47, that “A proposition assumed or decided by the court to be true, and which must be so assumed or decided in order to establish another proposition which expresses the conclusion of the court, is as effectually passed upon and settled in that court as the very matter directly decided.” At'page 49, Judge Norton, who delivered the opinion Of our Supreme Court, in the Chouteau v. Gibson case, says: “In passing upon the plea of res judicata the question is not whether the court decided the point involved right or wrong, but the question is, did it decide, and is the decision final?” Further along in the same opinion, in distinguishing the doctrine of stare decisis and res judicata, and referring to instances in which the court had overruled propositions in one case that had been decided in another, Judge Norton says (1. c. 51) : “But while this may be, and is often done, the right of a,party to reagitate and sue again upon the same cause of action adjudged in a case subsequently overruled in another case between other parties or the same parties upon another cause of action, is concluded and forever gone.” Further along on the same page, Judge Norton, speaking for the Supreme Court and quoting Bigelow on Estoppel, says: “It seems hardly necessary to state that a judgment of a court of last resort cannot be collaterally attacked in that or any other court; but the point has been raised and so ruled.”

The law as announced on this subject in the case-of Chouteau v, Gibson, supra, has never been disturbed or questioned by our Supreme Court, as see Exposition Driving Park v. Kansas City, 174 Mo. 425; its last affirmance being in the case of Reynolds v. Hood, 209 Mo. 611, 1. c. 620. The Kansas City Court of Appeals,, in a discussion of the doctrine, in the case of Pond v. Huling, 125 Mo. App. 474, commencing at page 480, has-followed the ruling there announced, collecting in addition to Chouteau v. Gibson, supra, many cases in support of it.

These authorities are conclusive on the proposition that the character of this lease and the term created by it and the right of the plaintiff in this case to stand, upon the terms and covenants and conditions therein contained has been finally and forever settled as between these parties and their privies, and that plaintiff has a right of action for violation of the covenant to furnish steam power is also settled. Apart from the doctrine of' res judicata, and its application to this case, a careful' and laborious scrutiny of the opinion of this court, as reported in 93 Mo. App. 530, satisfies us that that opinion is right in law and on the facts.

This leaves only three question to he disposed of which are not covered by the former decision of this court. The first relates to the refusal of a reference, the second relates to alleged errors at the trial in the admission and exclusion of testimony and the action of the trial judge, and the third, speaking generally and comprehensively, relates to the measure and award of damages. Taking these up in their order, it is to he observed that it has been many times decided by our courts, that in our State, reference is a matter of purely statutory right, and unless the case in which it is asked or in which it is granted, is a case within the statute, the court has no power whatever, of its own motion, to grant a reference, the parties not consenting, as here, when plaintiff not only did not consent to, but resisted a reference. Section 698, Revised Statutes 1899, contains the sole grant of power for an involuntary reference. This case does not come within the statute. It is not an action on account or one that required the examination of a long account on either side. The ascertainment of the amount of damages or arriving at facts from which damages were to be ascertained, may have involved the going .into a question of profit and loss, receipts and expenditures, but in no sense was an account to be taken, in the sense in which those terms are used in the statute. Nor do we think that it was a case where the taking of an account was necessary for the information of the court before judgment or for carrying a judgment or order into effect. This same question was presented here, as in nearly all actions for damages, the question of earnings that may have involved statements' of receipts and expenditures, but not the taking of an account within the meaning of the statute. Nor does this fall within the third clause of the section, in that it presents a case where a question of fact other than upon the pleadings arose or might arise, upon motion or otherwise, at any stage of the proceedings. Reading the testimony in the case by which the matter of profits and losses was developed, we cannot say that it presented any questions beyond the scope of intelligent comprehension by any ordinary jury.

We have gone over with very great care the whole of the printed abstract in this case, covering 203 pages, of which all but about thirty-seven is devoted entirely to the testimony in the case, the remaining pages being taken up with the record proper and with the term bills of exception, relating to settling the pleadings, and with the instructions, motions for new trial, etc., and while it shows that the case was a hotly contested one, the trial lasting two or three days, and that there were numerous tilts between counsel and even between them and the court, we cannot and do not think that any remarks that were made by the court and to which exception was taken, prejudiced or even had a tendency to prejudice the jury against the defendant in the case.

Concerning the admission of evidence, the principal and most strenuous objection made was to admitting in evidence the schedule or synopsis of the book entries," showing receipts and expenditures of the defendant company. This statement was prepared by the witness who testified from it; the books, from which he swore that he had prepared it, were identified as the books of account of the plaintiff company; they were produced in court, although not offered in evidence, or, to be more accurate, offered in evidence and then on the suggestion of the court that that would involve putting them in the transcript, withdrawn from evidence, the court suggesting that such parts of them as parties desired might be put in evidence, but neither party availing themselves of this offer, the witness, with the schedule or synopsis in his hand, which he had himself prepared, was permitted to read from that a statement of the account as shown by these books. This was the only practicable way of handling this matter, short of introducing page after page of the books themselves, by which the testimony could be presented either to the jury or to this court on appeal. We do not understand that the correctness of the schedule is challenged, the first point of the challenge appearing to be that defendant’s counsel had no time to examine and compare it with the books. We do not discover, in going over the evidence, that they made any such demand. The objection also goes to this schedule as an incompetent and improper mode of proving accounts. This objection was overruled and the schedule introduced in evidence, after having been verified by the witness who had himself prepared it. Going further, counsel contend that the books themselves, kept by plaintiff in course of its business, with which defendant had no connection, would not have been evidence against defendant. As to this last point, it is disposed of adversely to the- contention of defendant by the decision in The Anchor Milling Co. v. Walsh, 108 Mo. 277. We do not think any error was committed in allowing the plaintiff to introduce the schedule prepared from the books. It is true, the jury might have, with the books before them, ascertained the facts and verified the items. But this schedule being sworn to as correctly taken from the books by one who had shown he was competent to prepare it, whether a bookkeeper or not, was competent. Certainly we cannot hold its admission reversible error.

The third proposition as to the measure of damages is divisible into several heads. The first proposition and the one at the root of the right to damages and the measure of damages is raised on the following words in the lease: “In the event of the party of the first part from any cause whatever failing to furnish power or steam to operate the plant of the party of the second part during the hours herein mentioned, they agree to allow them for the same.” It ■ is argued by counsel for defendant that the defendant met the obligation of this provision when it offered to deduct from or allow to plaintiff the rent for the time during which the steam or power was shut off, that amount, it appearing, being $72.50. The position taken by defendant’s counsel assumes that it was with defendant to determine what was to be allowed for failure to furnish power or steam. We cannot agree to this. No language of the lease places that within the sole power of the defendant. This is not a case of assessed damages, provided for by the lease. Nor can it be said that the covenant to furnish the power was not a real covenant, running with the property. This was decided in the case in 93 Mo. App., at p. 542, it being held there that this plaintiff could sue for a breach thereof. What damages were to be awarded for the breach were not and are not covered by this provision and we are of the opinion that the rule laid down by the trial court was correct. There was evidence warranting the jury to fix the actual damages at $1216. By the schedule of receipts and expenditures, while the average net monthly receipts for the year 1901 were placed at $1102.86, it will be seen that for August of that year they were $2768.85, for October $1108.72, and average of $1938.78 per month for the two months. The account for September, during half of which month power was shut off, was $365.07, showing a falling off in receipts for the lost time of that month of $1573.77. In view of this testimony, we cannot say that the amount of the verdict for actual damages was excessive or unwarranted. There was sufficient evidence in the case as to the bad feeling of the defendant’s officers and as to the circumstances under which the power was shut off, to warrant an instruction on punitive damages. When that is so, and correct instructions are given, and the jury keep within the instructions as to the amount, we cannot interfere, unless it clearly appears that the amount awarded shows passion or prejudice on the part of the jury. We cannot say that of this part of the verdict. On consideration of the case, it is our conclusion that the judgment of the circuit court should be affirmed and it is accordingly so ordered.

' Goode, J., and Nortoni, J., concurring.