STATE ex rel. and to Use of BIRMINGHAM, State Game and Fish Com'r, v. HACKMANN. (Supreme Court of Missouri, in Banc. 30, 1918.) Dec. STATES 62 STATE GAME AND FISH COMMISSIONER "INCIDENTAL EXPENSES." Since there is no law requiring the state game and fish commissioner to reside at the state capitol, where he has established his office, but not his residence there, his hotel bills, incurred while engaged at his office once or twice a month in going over the expense accounts of his office and of his deputies, as required by Rev. St. 1909, §§ 6558, 6566, are chargeable to the state under section 6558, allowing him necessary "incidental expenses." [Ed. Note. For other definitions, see Words and Phrases, Incidental Expenses.] Mandamus by State of Missouri, at the relation and to the use of Tim Birmingham, State Game and Fish Commissioner, against George E. Hackmann. Alternative writ made absolute. mus. Frank H. Farris, of Rolla, for relator. Frank W. McAllister, Atty. Gen., and S. E. Skelley, Asst. Atty. Gen., for respondent. GRAVES, J. (after stating the facts as above). I. We start with the proposition that there is no law, either statutory or constitutional, which fixes the residence of the state game and fish commissioner. So far as the law is written, this official enjoys the privilege of residing wherever he pleases within the state. Some are not so fortunately situated. Const. Mo. § 1, art. 5. The statute creating relator's office and prescribing the duties thereof nowhere fixes his place of residence, and he is permitted to escape the privilege of having the merchants and tradesmen of the capital city adjust his living expenses to the size of his salary. Respondent (under the constitutional provision, supra) is not so fortunate. Relator had the legal right to maintain his residence at St. James. He likewise had no restrictions upon the place of locating his office. Quite naturally he saw fit to locate it at the seat of government, but this did not compel him to change his residence. This is an original proceeding by mandaThe facts are few and simple and and maintain a suitable office, and may mainII. By section 6558 such officer "may provide stand admitted, inasmuch as the respond-tain a clerk when necessary." The same secent rests his case upon a demurrer to relator's petition, which stands for the alternative writ. Relator is the state game and fish commissioner of Missouri. Respondent is the state auditor. Relator, at the time of his appointment to the office of state game and fish commissioner, resided at the city of St. James in the county of Phelps, and thenceforward has continued to reside there. He established no residence in Jefferson City, but did establish an office there, in which is maintained a clerk and an office force. Once or twice per month it became necessary for relator to come from his home to this office to go over the expense accounts of the office, and the expense accounts of his divers deputies in the state, to the end that he might certify the same to the state auditor for payment. While doing this work, he charged his hotel bills while at Jefferson City in his accounts as expenses chargeable to the state. Those items for a number of months the state auditor, respondent herein, refused to allow to relator, and continues to so refuse to allow the same. By our writ of mandamus it is sought to compel the auditor to audit and allow these items. For the five months involved in this action these items aggregate $58.35, but the suit will determine the status of these items and their allowance throughout the term of relator. The appropriation is ample out of which they may be paid, if valid. Further facts may well be left to the opinion. tion also further provides: "At the end of each calendar month the said game and fish commissioner shall file with the state auditor an itemized statement, under oath, of all sums of money actually and necessarily expended by him in the discharge of his official duties. Such statement shall include office rent, salary of one clerk at the rate of two and one-half dollars per day while said clerk is employed, salaries and expenses of deputies while traveling under special orders, as hereinafter provided, all necessary traveling expenses, postage, stationery, fuel and such incidental expenses as may be required. The state auditor shall draw his warrant for such amount, which shall be paid monthly out of the game fund." The duties of such officer under article 2 of chapter 49, R. S. 1909, are numerous and varied, and chief among them is that he is to see that the state game laws are enforced. Section 6562, R. S. 1909. To this end he is empowered to serve warrants and make arrests. Section 6565, R. S. 1909. In fact under this law (article 2, c. 49, supra) his duties are so numerous and various as to require his presence at times in the different portions of the state. Without aid he could not meet all the obligations of the law, and the Legislature, so knowing, has provided for many deputies. Section 6566, R. S. 1909. Those deputies are allowed a per diem and expenses, and their accounts must be examined and approved by the commissioner. Section 6566, supra. The expenses involved in this action were For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes of which is hereby acknowledged, do hereby agree to grant and convey unto the said R. L. Barger or assigns, by warranty deed, clear of tate, situate in the county of Iron and state of incumbrances, the following described real esMissouri, to wit: expenses incident to the examination and "All my right, title and interest in all the land own in said county, situated in township 35, range 1 west, and situated in township 35, range 1 east, and situated in township 35, range 2 east, and situated in township 34, range 1 east, in said Iron county, Missouri. Being the same property acquired by me from Edgar R. Wells and Rose Anne Shephard Hand and husband upon the tender and payment, however, by the said R. L. Barger within sixty days from date hereof of the total sum of eleven thousand five hundred ($11,500.00) dollars. A case as plain as this should have been disposed of without recourse to the courts. "Payable as follows: One-half to be paid If the state auditor had any doubts (although in cash and one-fourth to be paid in three or before twelve we can see no room for such), the law makes months and one-fourth on the Attorney General his legal adviser, and months, secured by deed of trust for part purwe are loth to believe that the plain and sim-est and to execute unto the said R. L. Barger, chase money, notes bearing 6 per cent. interple issues of this case are here under the or assigns, a warranty deed in due form of advice of the Attorney General. The law law to said real estate, upon the payment or furnishes to state officials this legal adviser otherwise satisfactory adjustment of the price to the end that the courts might be relieved herein agreed upon for said property, and to of cases in which there are no merits. furnish an abstract of title showing good and Our alternative writ of mandamus should clear title thereto at the time I purchased same. be made absolute; and it is so ordered. Upon the expiration of the time above specified All concur. this option may be further extended by written agreement of the undersigned, attached thereto, not to exceed one month's additional time. "Witness my hand this, the 31st day of December, 1913. BARGER v. HEALY. (No. 20575.) (Supreme Court of Missouri, in Banc. Dec. 19, 1918.) DEEDS 94-MERGER OF CONTRACT IN DEED. Purchaser's acceptance of deed is a complete execution of contract to convey, and, subsequent to such acceptance, the rights and liabilities of the parties are defined and limited by terms of deed; the contract being merged in deed. Faris, Blair, and Williams, JJ., dissenting. Appeal from Circuit Court, Iron County; E. M. Dearing, Judge. Action by R. L. Barger against Jeremiah D. Healy. Judgment for plaintiff, and defendant appeals. Reversed, and petition dismissed. This suit was begun in the circuit court of Iron county by the plaintiff against the defendant, asking for the specific performance of a written option contract to convey real estate. The decree was for the plaintiff, and the defendant appealed the cause to this court. The contract is as follows: "Know all men by these presents that, I, the undersigned Jeremiah D. Healy of the city of St. Louis, in the state of Missouri, for and in consideration of the sum of one hundred ($100.00) dollars to him in hand paid by R. L. Barger of Ironton, Iron county, Missouri, the receipt "[Signed] Jeremiah D. Healy. [Seal.]" This contract was duly acknowledged before a notary public and delivered to the plaintiff. The petition declares upon the contract, stating that the plaintiff fully performed all the terms thereof, and requested the defendant to convey to him the real estate described in the contract, and further alleged that the defendant refused to execute and deliver a general warranty deed, conveying the property described, but, on the contrary, delivered to plaintiff two quitclaims, wherein defendant excepted out of the lands described in the contract, and reserved for himself, his heirs, and assigns, the mineral rights in and to said land, specifically reserving the right to prospect and develop the same, and further alleging that plaintiff accepted said quitclaim deeds only under protest. defendant sets up in his answer that the contract sued upon is, and was, not the final repository of the agreement between him and the plaintiff, and sets forth, in substance, that it was at all times understood between him and plaintiff that all the minerals lying beneath the surface of the land sold were to The be reserved to defendant, his heirs and as- For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 500 207 SOUTHWESTERN REPORTER he represented the plaintiff and conducted | mineral rights reserved by him under the the negotiations for the securing of the op- quitclaim deed. tion contract in controversy with the defendant, Healy; that the option contract sued upon was drafted in the office of the defendant, in the city of St. Louis, and that the handwriting therein was the handwriting of the defendant; that the option contract was prepared by the defendant in his office, and that the same expressed the agreement made by the parties at that time. Fletcher further testified that on the 28th day of February, 1914, in accordance with the option contract, Barger wired the defendant Healy to forward the deeds and deed of trust to the Bank of Arcadia Valley, and that the plaintiff would there complete his contract for the purchase of the lands in suit; that on the 4th day of March the deeds and deed of trust arrived at the Bank of Arcadia Valley, and that Barger and he examined the deeds and deed of trust, and found that the same was not in accordance with the option contract, inasmuch as the deed was in substance a quitclaim deed, and reserved the mineral rights to the defendant R. L. Barger, the plaintiff, and C. P. Damron, attorney for the plaintiff, testified, in so far as their knowledge extended, to substantially the same facts as were testified to by the witness Fletcher. and his heirs. Fletcher further stated that 80 acres of the land was omitted from the deed (inasmuch, however, as that defect was subsequently remedied, no further reference will be made to the same). Fletcher stated that thereupon he and Mr. Barger conferred with their attorney, Mr. Damron, relative to the matter, and that at their request Mr. Damron called up the defendant and demanded of him that he execute a warranty deed, and include therein the mineral rights which he had reserved under the deed in Thereupon plaintiff offered in evidence the deeds which defendant tendered in alleged performance of this option contract, and also the canceled notes and deed of trust executed by the plaintiff in performance of the contract on his part. Plaintiff also offered the testimony of three disinterested witnesses to the effect that they heard the protests made by plaintiff over the acceptance of the deeds tendered by defendant, and heard plaintiff state that he was only accepting the deeds because of the fact that he had to comply with his contract for the sale of the timber to the Merseal & Allee Tie & Timber Company, and that he did not consider the deeds tendered as a compliance with the contract, and would hold defendant to a strict compliance with the contract. Mr. Damron also testified that he notified the defendant, Healy, over the long-distance controversy; this the defendant refused to that if they did not care to accept the deed securing the deferred payments of the purchase price, which deed was executed and acknowledged by plaintiff on the 9th day of March, 1914, and by him placed of record in the recorder's office for Iron county on said date, which deed of trust secures the payment of the notes mentioned. The last of these notes were paid by plaintiff on March 2, 1915. The deed of trust was on that day presented by plaintiff and canceled by the recorder of deeds of Iron county. This suit was filed on the 26th day of September, 1914. That D. Edgar Fletcher, plaintiff's partner, had at all times an undivided one-half interest in the option contract, and later in the land conveyed, and is not a party plaintiff. As previously stated, the trial court found the facts for the plaintiff, and rendered a decree accordingly, and the defendant appealed. Frank X. Hiemenz, of St. Louis (Edgar & Edgar, of Ironton, of counsel), for appel lant. Ernest A. Green, of St. Louis, for respond ent. WOODSON, J. (after stating the facts as above). I. Counsel for the defendant insist that the decree of the trial court is erroneous for the reason that the acceptance of the deeds made by the plaintiff to the defendant, conveying the property mentioned in pursuance to the contract, represents the final agreement between them; their rights and liabilities are defined and limited by their terms; that the entire transaction is merged in the deeds, and no action can be maintained on the option contract, and the remedy for loss or damages sustained or other rights lost by a nonperformance of any of the terms of the contract is governed by the covenants in the deed. The converse of this proposition is maintained by counsel for the plaintiff. We are cited to many authorities in support of these respective positions. We will examine those of the defendant, appellant first. In the case of Wilson v. Wilson, 115 Mo. App. 641, 92 S. W. 145, the Court of Appeals held that a contract between the vendor and vendee, relating to the executory acts necessary to complete the sale of real estate, are merged in the deed, the acceptance of which completes the performance and is conclusive evidence of the real contract between the parties. In Matheny v. Stewart, 108 Mo. 73, 17 S. W. 1014, this court, in passing upon this question, held that when a conveyance of real estate becomes complete, the parties make and accept the covenants therein as measuring the liability of the grantor and the compensation of the grantee in case of breaches. The contract becomes merged in the deed, and the remedy for loss is confined to such as is given by its covenants. In Smyth v. Boroff, 156 Mo. App. 18, 135 S. W. 973, the Court of Appeals held that, while the contract for the sale of land is still executory, the law will enforce the right of the purchaser, under the contract, to a title clear of defects and incumbrances, but when the contract has been consummated by the execution and delivery of the deed, the entire matter is merged in the deed, and the covenants contained therein alone prescribe the measure of the rights of the parties, so that, where the covenant required the vendor to convey land "by a good and proper conveyance" (and the deed was duly executed and accepted), an action would not lie on the contract for money expended in perfecting the title. In Wheeler v. Ball, 26 Mo. App. 443, the court held that, while the terms of a contract of sale of real estate is still executory, the courts will enforce the right of a purchaser to a title clear of defects and incumbrances; but when the contract becomes consummated by the execution and delivery of the deed, a different rule comes in; the terms of the deed fill the measure of the rights of the parties, and the contract merges in the deed. In Slocum v. Bracy, 55 Minn. 249, 56 N. W. 826, 43 Am. St. Rep. 499, the Supreme Court of Minnesota held that, where a deed has been accepted as full performance of an executory contract to convey real estate, the contract is merged in the deed, upon which alone the rights of the parties thereto rest; and, in case the deed contains no covenants, and there be no ingredient of fraud or mistake of fact, the grantee cannot recover back the consideration paid because of a failure of title. In Clifton v. Jackson Iron Co., 74 Mich. 183, 41 N. W. 891, 16 Am. St. Rep. 621, the Supreme Court of Michigan held that, where the owner of land, on contracting for its sale, reserved the timber, with the right of removal for a specified time, and conveys the land to the vendee before the expiration of the time so limited by warranty deed without any such reservation, the timber passes to the grantee. In Carter v. Beck, 40 Ala. 599, loc. cit. 606, the court held that: "The acceptance of the defendant's deed by the plaintiff was a complete execution of the antecedent agreement to convey, and annulled it; and no action at law can be sustained upon it"-citing Howes v. Barker, 3 Johns. (N. Y.) 506, 3 Am. Dec. 526; Houghtaling v. Lewis, 10 Johns. (N. Y.) 297; Cronister v. Cronister, 1 Watts & S. (Pa.) 442; Falconer v. Garrison, 1 McCord, 209; Frederick v. Youngblood, 19 Ala. 680, 54 Am. Dec. 209. The same rule was announced in a very exhaustive opinion by the Supreme Court of Maryland, in the case of Timms et al. v. right to waive the provision of that part of the contract, by which the vendor agreed to convey a clear and unincumbered title, etc.; but the question involved in the case at bar was not there presented or passed upon. Shannon et al., 19 Md. 296, 81 Am. Dec. 632 | the former for failure to perform his part. and in the case of Bryan v. Swain, 56 Cal. The court also held that the vendee had the 616, where the plaintiff agreed to sell land to the defendant, and to convey a good title, and afterwards made a deed which was accepted by the defendant as a performance of the contract. The title to a part of the land was in the United States, but the defendant knew that fact when he accepted the deed. The Supreme Court of California held that the rights of the defendant depended on the deed, and not the previous contract; the latter being merged and extinguished by the former. Judge Napton approached the same question from a different angle, but reached the same conclusion, in the case of Minor v. Edwards et al., 12 Mo. 137, loc. cit. 139 (49 Am. Dec. 121), where he said: "What acts or what declarations amount to a waiver, is, in my opinion, a question of law; whether such acts or declarations were made or performed is for the jury. Bogart v. Nevins, 6 Serg. & Rawle [Pa.] 361; St. Louis Ins. Co. v. Kyle, 11 Mo. 278 [49 Am. Dec. 74]; Rhett v. Poe, 2 How. 481 [11 L. Ed. 338]; Bank of Utica v. Bender, 21 Wend. 643 [34 Am. Dec. 281]. I use the term 'waiver' as a more convenient one than the term 'acceptance,' as used in the plea, for they are the counterpart of each other. An acceptance of a deed of inferior value to such an one as the grantee is, by his contract, entitled to, as a compliance with such a contract, is equivalent to a waiver of such better title." We will now review the authorities cited by counsel for plaintiff in support of his contention. The case of Kirkpatrick v. Pease, 202 Mo. 471, 101 S. W. 651, is not in point. On page 492 of 202 Mo., on page 657 of 101 S. W., Judge Lamm expressly declines to pass upon the question here presented, because counsel were laboring under a misapprehension as to the question involved. He said: "But without deciding whether a vendee might not be entitled to part performance with satisfaction in damages for the part not performed, yet it is sufficient to say of this contention, for the purposes of this case, that it proceeds upon a misapprehension." The case of Minor v. Edwards et al., 12 Mo. 137, 49 Am. Dec. 121, has been considered with the cases cited by counsel for defendant; and what is there said clearly shows that it holds diametrically opposite to what counsel for plaintiff contends for. The case of Conover v. Wardell, 20 N. J. Eq. 286, was a suit to compel the perform. ance of a contract already performed in part; but there the deed was accepted under a mistake as to the contents or effect of the deed. In that case the court held that the mistake was sufficient grounds for equitable relief, and decreed specific performance of the nonexecuted parts of the contract to convey. But that is not this case. Here the plaintiff knew of the variance between the terms of the contract to convey and the covenants in the deeds before he accepted them, and insisted that they be made to harmonize before acceptance, but, being unable to induce the defendant to make covenants of the deed conform to the terms of the contract, the plaintiff accepted the deeds under protest, and informed the former that he would bring this suit for specific perform ance. The case of Point Street Iron Works v. Simmons, 11 R. I. 496, announced the same rule as that stated in Conover v. Wardell, supra. The case of Earnhardt v. Clement, 137 N. C. 91, 49 S. E. 49, although not a real estate transaction, seems on principle to be in point. There a testator contracted to bequeath certain securities to the plaintiff in consideration of personal services rendered, but, instead of doing that, he bequeathed them in trust for her, etc. The court there held that the reception of the dividends by the plaintiff for a number of years under the will did not estop her from maintaining a suit for specific performance of the contract. In that case, however, the court did not Neither is the case of Davis v. Barado- pass directly upon the question involved in Ghio Real Estate Co., 115 Mo. App. 327, 92 the case at bar. In that case the contention S. W. 113, in point. That was an action for was made that the plaintiff was estopped damages for a breach of contract to convey from claiming the securities by having electreal estate. The only question there involved to accept the dividends thereof; but the ed was whether the purchaser could main- court denied that contention for the reason tain an action for damages without first hav- stated that: ing tendered performance of the contract on his part before bringing the suit. "Before the doctrine of election can arise, two The court held that the vendor's agree-things are essential: (1) The testator must give ment to convey a clear title and the vendee's agreement to pay therefor are concurrent and dependent conditions, so that the latter must have tendered performance before he had a right of action for damages against property of his own; and (2) he must profess (citing case). This is not the case here. There to dispose of property belonging to his donee are no inconsistent benefits. By receiving the dividends on stock, the capital of which she was entitled to have absolutely, she only ac |