Opinion
No. 38504.
February 7, 1944. Rehearing Denied, March 6, 1944.
1. CERTIORARI: Conflict: Pleading Referred to in Opinion of Court of Appeals. On certiorari for conflict the Supreme Court will look only to the Court of Appeals' opinion for the facts, but where the opinion refers to a pleading or other document, the court may turn to the record brought up and consider the document.
2. PLEADING: Contracts: Performance Prevented: Breach Sufficiently Pleaded. The petition is not defective in pleading a cause of action for breach of contract because it fails to allege performance or offer of performance on the part of the plaintiff, since the petition alleges prevention of performance by the defendant.
3. CERTIORARI: Conflict Not Shown. Relator refers to no Supreme Court cases showing that the opinion of the Court of Appeals is in conflict in holding that the petition stated a cause of action in tort, and that defects had been waived.
4. CERTIORARI: Landlord and Tenant: Tortious Eviction by Landlord: Conflict Not Shown. There is no Supreme Court case holding that a tenant having the right of possession may not bring trespass against a landlord who evicts him, though without violence or destruction of property.
5. LANDLORD AND TENANT: Frauds, Statute of: Damages: Breach of Two-Year Oral Lease: Only Nominal Damages For Second Year. Whether the cause of action was based on contract or tort, the evicted lessee could properly recover no more than nominal damages for the second year in view of the defense of the Statute of Frauds. The opinion of the Court of Appeals allowing compensatory damages was in conflict with decisions of the Supreme Court.
6. CERTIORARI: Landlord and Tenant: Lease Interpretation Not Mentioned in Opinion: No Conflict. The opinion of the Court of Appeals did not consider whether the two-year oral lease could be treated as a lease from year to year, and no conflict can be based upon such theory.
OPINION OF COURT OF APPEALS QUASHED IN PART.
Edward F. Sharp for relator.
(1) The opinion of the Springfield Court of Appeals in this case holding that the question of sufficiency of the petition to state a cause of action must be raised by written demurrer or its sufficiency cannot be questioned is in direct conflict with the following controlling opinions of the Supreme Court of this State. W.W. Brown Const. Co. v. MacArther Bros., 236 Mo. 41; Chandler v. Railroad, 251 Mo. 592; Lewis v. Barnes, 221 S.W. 487; Carpenter v. St. Joseph, 263 Mo. 705; Andrews v. Lynch, 27 Mo. 167; LaRue v. LaRue, 317 Mo. 207; Cartwright v. Telephone Co., 205 Mo. 126. (2) The Court of Appeals erred in holding that the petition, set out in full in the opinion, stated a cause of action in tort and in so holding contravened the latest decisions of this court as announced in the following cases: Krevet v. Myer, 24 Mo. 107; Fuhr v. Dean, 26 Mo. 116; Bergman v. Vogt's Admr., 172 Mo. App. 61; Chappee v. Lubrite Refining Co., 337 Mo. 791, 35 S.W.2d 1034; Levy v. McClintock, 141 Mo. App. 593; Ivory v. Carlin, 30 Mo. 142. (3) The majority opinion of the Court of Appeals is in direct conflict with the statute, Section 3354, R.S. 1939, in upholding a right of action on a verbal contract for a lease of land for more than one year. Sec. 3354, R.S. 1939. (4) The Court of Appeals should have reversed this case for the reason, among others, that the jury made no finding on count 5 of defendant's counterclaim. As the opinion states a motion for arrest was filed in this case raising the point. St. Louis v. Commission Co., 340 Mo. 633; Southern Mo. R. Co. v. Wyatt, 223 Mo. 347; Jones v. Snedecar, 3 Mo. 390; Pitts v. Fugate, 41 Mo. 405.
Ward Reeves for W.C. Coleman, plaintiff in original action.
(1) The petition in the original case stated a good cause of action. If there were some imperfections in it, then it was the duty of relator to point out these imperfections in the trial court. By failing to demur to the petition, by filing an answer and counterclaim, and by failing to raise any question at all upon plaintiff's petition at any time by demurrer to the evidence or otherwise, any appellate court should hold this petition good and the ruling of the respondents upon this question properly declares the law. Finley v. Williams, 325 Mo. 688, 29 478 S.W.2d 103; State ex rel. v. Allen, 85 S.W.2d 455; Clay v. Owens, 338 Mo. 1061, 93 S.W.2d 914; Brock v. Railroad, 330 Mo. 918, 51 S.W.2d 100; College v. Dockery, 241 Mo. 522; Southern Real Estate Co. v. Bankers Co., 184 S.W. 1030; Stottle v. Railroad, 18 S.W.2d 433; Drainage District v. Morgan, 18 S.W.2d 438; Thompson v. Lyons, 281 Mo. 430; Kansas City v. Youmans, 213 Mo. 151; Munford v. Sheldon, 9 S.W.2d 907; Heman v. Allen, 156 Mo. 534. (2) Realtor strongly contended in the Court of Appeals that the petition was bad because it did not allege performance on plaintiff's part. The failure of the petition to allege performance (if in fact it did fail to so allege), is cured by filing answer and going to trial. Ricketts v. Hart, 150 Mo. 64. (3) In Missouri we have a statute which corrects all defects which are subject to amendment in a petition after trial and verdict. Sec. 1265, R.S. 1939. (4) Relator contends that a tenant under a verbal lease cannot bring suit against his landlord who has intruded upon his possession. The authorities cited by relator apply only in those cases where the landlord has the right of possession at the time the landlord intrudes upon the possession of the tenant. Those authorities have no application in a case like the one at bar, where the tenant is lawfully in possession and his term has not ended. In such a case the tenant has a cause of action against his landlord, as has been held by the courts of appeal many times, and has never been decided to the contrary by the Supreme Court. Lee v. Armour, 18 S.W.2d 102; Hyatt Inv. Co. v. Buehler, 16 S.W.2d 219. (5) The second point made by relator in his brief is that the Court of Appeals contravened the last controlling decisions of this court in holding the petition set out in respondents' opinion stated a cause of action in tort rather than an action ex contractu. The cases cited by relator under this point of his brief do not pass upon this question at all and consequently there certainly could be no conflict. However, the mere fact that the petition in this case alleged a contract does not make it an action for a breach of contract. The allegation of the petition with reference to the making of the contract is mere inducement or laying a premise for the alleged wrong done by the defendant, which is thereafter specifically set out in the petition. The following cases support the ruling on this point made by the respondents. Lowery v. Kansas City, 337 Mo. 47, 85 S.W.2d 104; Braun v. Riel, 40 S.W.2d 621; Ellison v. Power Co., 59 S.W.2d 714; Trout v. Watkins, 148 Mo. App. 621; Graff v. Brewing Co., 130 Mo. App. 618. (6) It is no concern of the Supreme Court in certiorari proceeding that the Court of Appeals has decided a case contrary to a statute or has misinterpreted the true meaning of a statute, provided, of course, such decision does not contravene a controlling decision of the Supreme Court on such statute, and none is alleged here. State ex rel. v. Trimble, 326 Mo. 623, 31 S.W.2d 783; State ex rel. v. Haid, 325 Mo. 949, 30 S.W.2d 100. (7) However, Section 3354, Revised Statutes of Missouri, 1939, cited by relator, must be read in connection with Section 2969, Revised Statutes of Missouri, 1939, the latter having reference to the manner of terminating an oral contract for the letting of farm lands from year to year. In the case presented here the petition charges the making of a contract for the years 1940 and 1941, and being oral the landlord could have terminated the contract at the end of the first year only by serving the sixty days' notice provided by Section 2969. Since he did not do that the tenant had the right of possession and the right to farm the land for the year 1941 under the terms of his oral contract. Secs. 2969, 3352, R.S. 1939; Minton v. Steinhauer, 243 Mo. 51; Idalia Realty Co. v. Norman, 232 Mo. 663; Hammon v. Douglas, 50 Mo. 434. (8) For a full discussion of the law governing the rights existing between landlord and tenant under oral leases see the following decision by the Court of Appeals. Incidentally, this decision has never been criticised or modified by any decision of the Supreme Court, but has been cited with approval perhaps more than any other case on this subject. Ray v. Blackman, 120 Mo. App. 497. (9) It is elemental that the Supreme Court looks to the opinion of the Court of Appeals sought to be quashed for rulings claimed to conflict with other decisions. State ex rel. v. Trimble, 20 S.W.2d 17, 322 Mo. 360; State ex rel. v. Shain, 349 Mo. 1075, 163 S.W.2d 967. (10) On a review in a certiorari proceeding all evidence shown in the abstract of the record is excluded and the Supreme Court is limited to questions of jurisdiction and errors appearing on face of record. State ex rel. v. Trimble, 327 Mo. 773, 39 S.W.2d 372; State ex rel. v. Trimble, 325 Mo. 277, 28 S.W.2d 1028. (11) In such a proceeding the Supreme Court is without authority to consider the merits of the case. State ex rel. v. Hughes, 348 Mo. 829, 155 S.W.2d 250.
Certiorari to the Judges of the Springfield Court of Appeals bringing up the record in Coleman v. Fletcher, 167 S.W.2d 906, wherein a judgment of the circuit court of New Madrid county against the relator-defendant was affirmed on appeal, one of the respondent judges, David E. Blair, P.J., dissenting. Relator contends the opinion of the two other respondents contravenes controlling decisions of this court. That opinion as reported in the cited Southwestern sets out the facts more fully than we need do here. In particular it incorporates the plaintiff's petition (except the caption and signature) on which he obtained the judgment affirmed by respondents. Most of the issues hinge on the sufficiency of that petition.
The plaintiff's pleaded cause of action was for damages arising from relator's alleged failure to abide by an oral agreement whereby he leased to the plaintiff 25 acres of cotton land for a period of two years. The petition alleged the oral agreement was made on January __, 1940, covering that year and the next; and that plaintiff entered into possession under the agreement and farmed the land the first year. Then it continued "that although he rented the same said real estate and had an agreement with the defendant to farm the same acreage in cotton during the year 1941, the defendant did wrongfully and without any lawful right, take away from plaintiff the 25 acres of land . . ., and by reason of which act and wrongdoing on the part of the defendant the plaintiff was precluded from" — farming said land to cotton in 1941. Next, the petition alleged that "said 25 acres of cotton land was wrongfully taken from the plaintiff by the defendant on or about the 18th day of February, 1941, after plaintiff had already begun his farm operations for the said year 1941." Then follow allegations as to the net profit plaintiff would have derived from the year's farming operations under the contract, of which he was deprived and therefore damages by "the wrongful act of the defendant in taking said 25 acres of cotton land from plaintiff."
The relator-defendant did not challenge the sufficiency of the plaintiff's petition in the circuit court before the trial in any way, except that his answer pleaded the statute of frauds, Sec. 3354, which, so far as involved here, prohibits the bringing of any action upon any lease of land for a longer time than one year, unless the lease be evidenced by writing and signed by the party to be charged. The answer further contained a general and specific denial, and set up three counterclaims. The specific denial alleged the oral leasing was only for one crop year ending on the last day of 1940; that, additionally, in July, 1940, the relator notified plaintiff he had rented the land to a third party for the next year; and that the third party entered upon the land and sewed wheat in 1940. It did not, however, plead that this notice was in writing, or that the third party entered the land with plaintiff's consent. To this new matter plaintiff's reply was a general denial. The jury found for plaintiff on his petition, and for the relator-defendant on his three counterclaims, judgment going for plaintiff for the excess.
All citations of sections of our statutes are to the Revision of 1939 and Mo., R.S.A., unless otherwise shown.
On the appeal before respondents, however, relator did contend that the plaintiff's petition wholly failed to state a cause of action — this on the theory that it was for breach of contract, as shown by its caption and on its face; but that it failed to allege performance of the lease contract by plaintiff, or an offer to perform. Respondents' opinion disposed of that contention without fully deciding it on the merits, by holding merely that: the petition was not for breach of contract but [324] sounded in tort; and that the relator had waived any alleged insufficiency in the petition by failing to challenge it in the circuit court by demurrer, objection to the introduction of evidence, or otherwise. Relator assigns here that in so holding respondents contravened controlling decisions of this court.
We shall take up those questions presently, but let us say here that relator goes outside respondents' opinion in stating the plaintiff's petition was captioned "Breach of Contract." The opinion does not show this. And the rule is well established that on certiorari for conflict of decisions we will look only to the Court of Appeals opinion for the facts. See the many cases cited in 6 West's Mo. Dig., "Certiorari", sec. 50, p. 537. But, as held in other cases cited in the same Digest paragraph, where the opinion refers to a pleading or other document, we may turn to the record brought up and consider the document. We have done so in this case, and find the caption was also omitted from the petition as set out in the Abstract of the Record filed in the Court of Appeals. So we cannot consider relator's statement in his brief here, concerning the caption of the petition.
Returning to relator's assignment that respondents contravened decisions of this court, in holding that plaintiff's petition was not for breach of contract, and that it was not assailable on appeal for failure to allege performance of the lease contract by plaintiff or an offer to perform. It seems clear to us that the petition contained every allegation necessary to state a cause of action for breach of contract: (1) an agreement between parties capable of contracting; (2) mutual obligations arising thereunder with respect to a definite subject matter; (3) a valid consideration; (4) part performance by one party and prevention of further performance by the other; (5) damages measured by the contract and resulting from its breach. We do not agree with relator that the petition was fatally defective from a failure to allege full performance by plaintiff or an offer to perform. For it does allege prevention of performance by relator, which was sufficient. Bayse v. Ambrose, 32 Mo. 484. And of the cases based on similar general facts and relied on by the parties in their briefs, one cited by respondents, Lee v. Armour Bldg. Co. (Mo. App.), 18 S.W.2d 102, and one cited by relator, Chappee v. Lubrite Refining Co., 337 Mo. 791, 85 S.W.2d 1034, were for breach of contract. If we were ruling on the question independently, we would be inclined to hold the cause of action pleaded here was the same.
But respondents' brief, in defending their ruling that the petition sounded in tort, asserts the foregoing detailed facts were pleaded merely as "premises" or "inducement" supporting the part of the petition which charged the "wrongful" eviction; and they cite cases holding an action for tort may arise out of a breached contractual duty, where the act itself is also wrongful as a breach of legal duty. See Lowery v. Kansas City, 337 Mo. 47, 58, 85 S.W.2d 104, 110 (9). Since this certiorari case is here only on the ground of conflict in decision; and since we have not been referred to any Supreme Court decision holding a similar petition would not support an action in tort (and know of none); we must rule this assignment against relator.
It follows from this that the same ruling must be made on relator's further assignment that respondents' opinion conflicted with our decisions in holding relator had waived the asserted defects in the plaintiff's petition by failing to attack it in the trial court. It is true that if a petition wholly fails to state a cause of action, the defect is jurisdictional and the question may be raised for the first time in the appellate court. Hawkins v. Heagerty, 348 Mo. 914, 916(1), 156 S.W.2d 642, 644. But such is not the rule applicable to mere imperfections. Sec. 1265(5); Hawkins v. Paeben, 332 Mo. 479, 483, 58 S.W.2d 437, 438(2).
The next assignment of conflict is that the plaintiff's petition wholly failed to state a cause of action even in tort — as respondents' opinion classified it. The latest decision of this court cited on this point is Chappee v. Lubrite Refining Co., supra, 337 Mo. l.c. 796(3), 85 S.W.2d l.c. 1037(3). That case, as already stated, was an action for breach of contract, but it quotes extensively and approvingly from Levy v. McClintock, 141 Mo. App. 593, 599, 125 S.W. 546, 548, an earlier decision of the Kansas City Court of Appeals which was in tort for trespass. The excerpt from these cases stressed by relator is (italics ours): "`where there is no personal violence and no unlawful destruction of the tenant's [325] property by the landlord in his entry, the former is without remedy except under the statute of forcible entry and detainer. Under that statute a tenant dispossessed against his will, may find redress by a showing of facts which would fall far short of sustaining an action quare clausum fregit.'"
Relator earnestly insists the facts of the instant case exactly fit that quotation because: (1) there was no allegation or evidence here of personal violence on relator's part, or of unlawful destruction of the plaintiff tenant's property; (2) and the plaintiff's petition obviously was not for forcible entry and detainer — if for no other reason than because Sec. 2835 requires actions of that character to be addressed to and tried in a justice of the peace court, instead of in the circuit court as this one was. But relator overlooks one all-important fact. The above quotation in both the Chappee and Levy cases was referring only to situations where a landowner having the right of possession evicts the tenant without legal process, but without violence to person or property. Neither case holds a tenant cannot bring trespass against the landowner, if the former and not the latter had the right of possession — even though the eviction was without violence. And neither case has ever been so construed. It must be remembered that the plaintiff's petition here stated his own side of the controversy — that he was rightfully in possession under a two-year lease, and that the relator, without any right of entry, nevertheless evicted him and seized the possession.
See the following annotations: 42 L.R.A. (N.S.) l.c. 395; 56 A.L.R. l.c. 1041-2; 101 A.L.R. l.c. 477-8, 482; 141 A.L.R. l.c. 274, 275.
The last point urged by relator is that respondents' opinion conflicted with our decisions in affirming the plaintiff's judgment for compensatory damages — in view of the theory on which the opinion reached that conclusion. As will be remembered, relator's answer pleaded the statute of frauds, Sec. 3354, supra. The opinion (167 S.W.2d l.c. 909-10) disposed of that defense by merely holding the plaintiff's action was not for breach of contract but in tort. This was necessarily equivalent to holding that the statute of frauds made no difference since the action was in tort, even though the statute was applicable to the lease contract underlying the action. If it did not mean that it did not pass on the statute of frauds issue at all; and we cannot say that because the issue was expressly referred to.
We think the relator is correct in that contention. If the statute of frauds did apply to the oral two-year lease then the plaintiff tenant could not recover compensatory damages for the second year, either on the theory of breach of contract or in tort. On the contract theory this Court and two of the Courts of Appeals have ruled that when a contract is voidable under the statute of frauds, and therefore unenforceable by specific performance in equity, the alternative is not open to the injured party to sue for breach of contract. And on the tort theory, if the statute of frauds was applicable to the lease, then the relator landowner and not the plaintiff tenant had the right of possession the second year; and in that situation under the Lowery and Chappee cases, supra, the plaintiff could not recover more than nominal damages in trespass — if the action would lie at all.
Lydick v. Holland, 83 Mo. 703, 707(2); Davis v. Holloway and Smith, 317 Mo. 246, 253, 295 S.W. 105, 108(2); Mary C. Marshall Realty Co. v. Zerman (Mo. App.), 296 S.W. 1057, 1061(10); Todd v. Fitzpatrick (Mo. App.), 222 S.W. 888, 890(2).
In that connection respondents' brief here argues the two-year oral lease was a lease from year to year, and that under Sec. 2969 it could be terminated at the end of the first year only by giving 60 days written notice as that statute requires; whereas relator neither pleaded nor proved such written notice had been given; in consequence of which plaintiff's holding over was valid and the statute of limitations could not apply. Respondents did not mention, discuss or rule that question in their opinion, and since this is a certiorari proceeding only for conflict of decisions, we cannot consider it.
For the reasons stated respondents' opinion is quashed on the point decided as stated in the third preceding paragraph.
Record quashed in part. All concur.