Grimm v. Dundee Land & Investment Co. , 1893 Mo. App. LEXIS 328 ( 1893 )

Rombauer, P. J.

This action was instituted before a justice of the peace in the city of St. Louis, its object being the recovery of damages for breach of a contract of sale. The defendant appeared before the justice in obedience to a summons, and defended the action on its merits. Upon being defeated the defendant appealed to the circuit court,' where it was again defeated; and it now prosecutes the present appeal.

It was admitted on the trial in the circuit court that the defendant did not reside in the judicial district of the justice, nor in an adjoining judicial district, and had no office in either of them. The defendant moved to dismiss the cause for want of jurisdiction, but the motion was overruled by the court, and this ruling is now complained of as error.

This assignment of error is based on the assumption, that section 6126 of the Revised Statutes of 1889 is an express repeal of the act of 1883, page 103, which conferred on justices within the city of St. Louis, jurisdictipn co-extensive with the city, regardless of the defendant’s residence. We need not discuss the merits of that argument, as the point does not call for a decision on the record before us. It nowhere appears that the plaintiff did not reside in the judicial district of the justice before whom the cause was tried, nor that the defendant was not found therein. The defendant is a corporation and as such can have no fixed residence in any district; and it does not appear that its president, who by law is the proper person to be served, was not found in the judicial district of the justice. Revised Statutes, 1889, section 2527; Mikel v. Railroad, 54 Mo. 145. The record merely recites that the summons was returned duly served. But, even if this objection were out of the way, the defendant’s position would not be mended, because it is affirmatively shown by the record that it appeared before the justice and went to trial upon the merits of the action. By so doing the defendant waived any objection to the jurisdiction qf the justice over its person, since the action was transitory. The position now taken by the defendant, that, as to tribunals of limited and statutory jurisdiction, even the jurisdiction of persons becomes jurisdiction of subject-matter, is untenable both on principle and authority. The case of Fare v. Gunter, 82 Mo. 522, impliedly decides that, even where the justice has no jurisdiction of the person of the defendant, because he resides in another township, an appearance to the merits waives the objection to the jurisdiction. We cannot see how the law could be otherwise without giving rise -to the most interminable confusion, since the statute does not require either the constable who serves the writ, or the justice who tries the cause, to state the residence of the defendant, and we take judicial notice of the fact that this is never done.

Upon the trial of the merits the plaintiff gave evidence tending to show that he purchased of the defendant a lot of land at auction sale, and at the time of his purchase deposited $50 as earnest money with the defendant. It was conceded that the defendant at the time gave to the plaintiff a memorandum of the sale,. executed by its duly authorized agent and stating that the 'sale was at the rate of $25 per front foot. The plaintiff was always ready to consummate the transaction on that basis, but the defendant insisted that the sale was at $25.50 per front foot, and declined to tender a deed to the plaintiff for the purchase price as it was claimed to be by plaintiff. The settlement of this controversy dragged on for some time, and when the plaintiff finally consented rather to pay the additional fifty cents per front foot than to lose the benefit of his bargain, the defendant sought to impose upon him conditions as to the payment of interest which were not contained in the prospectus of the sale. The plaintiff also gave evidence tending to show that the market value of the lot sold to him by the defendant was, at the date of sale, $30 per front foot or more.

On the other hand, the defendant’s evidence tended to show that the sale was made at a price of $25.50 per front foot, and that the memorandum of sale delivered to the plaintiff, which stated the price at $25, was a mistake of the scrivener. The defendant also gave evidence tending to show that it was always ready to convey the property to the plaintiff upon his complying with the terms of the sale at $25.50 per front foot.

The court instructed the jury in substance that, if they believed the facts to be as shown by plaintiff’s evidence, the plaintiff was entitled to recover the $50 paid by him to the defendant, and also any excess in the market value of the lot over and above the amount at which the lot' was sold to him; that, if they believed that there was a mistake in good faith on part of the plaintiff and defendant as to the price of. sale, then the plaintiff’s recovery was limited to the $50 earnest money which he had paid; but that if, on the other hand, they believed the facts to be as shown by the defendant’s evidence, then the plaintiff could not recover, and they must find for the defendant. The jury found for the plaintiff in the sum of $300, their verdict indicating that they found a sale of the lot at $25 per front foot, a breach of the contract of sale by the defendant, and a market value of the lot at $30 per front foot, the lot being one of fifty feet front.

Complaint is made of these instructions, because they submitted to the jury the plaintiff’s right of recovery of the earnest money in case of mistake, whereas his statement sought only the recovery of damages for breach of contract of sale. It suffices to say in reply to this complaint that this action was instituted before a justice of the peace, where formal pleadings are not required, and that the plaintiff’s statement sought to recover as well the earnest money as damages for the breach of the contract. But even if the case were otherwise, the defendant would be in no position to complain, since the verdict of the jury conclusively shows that they found for the plaintiff not on the ground of mutual mistake, but on the ground of the breach by the defendant of the contract as claimed in the plaintiff’s statement; hence the instruction complained of, even if not warranted by the issues framed, could not have possibly misled the jury.

Complaint is also made that the court, against the defendant’s objections, permitted the plaintiff to read to the jury certain letters, which he had written to the defendant’s agents urging them to consummate the contract. When these letters were offered in evidence, each of them was objected to as a whole. Had the objections been confined to certain parts of them, the court would probably have sustained the objection; but, as it was, the objection was too broad, because portions of each of the letters, were admissible in evidence as tending to show the readiness on part of the plaintiff to comply with his part of the agreement. Hence we must overrule this assignment of error likewise.

Complaint is also made that the court permitted the plaintiff to amend his original statement, and thereby, as the defendant claims, substantially change the cause of action. The amended statement filed in the circuit court is different from the statement filed before the justice only in setting out some evidentiary facts. The plaintiff would certainly have been at liberty to prove all the facts, which he did prove in the circuit court, under his original statement as filed before the justice of the .peace. The cause of action, which was the breach of the contract of sale by the defendant, was in no way changed.

Finding no error in the record, the judgment, with the concurrence of all the judges, is affirmed.