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cepted part of what was her due, and nothing | 3. TRIAL 296(11) beyond her own."

But, as previously indicated, the question here presented was not presented in that case, viz. that the acceptance of the dividends was a waiver of her right to the securities and a full performance of the terms of the contract, which was merged into the will, and that it alone bespeaks their final and last agreement. But be that as it may, it seems to be in point.

Trabue's Heirs v. North, 9 Ky. (2 A. K. Marsh.) 361, is an erroneous citation.

After a most careful consideration of the authorities cited by learned counsel for each party, we are satisfied that practically all of them, including the direct rulings of this court, sustain the contention of counsel for defendant, to the effect that the acceptance of the deeds by the plaintiff is a complete execution of the contract to convey, and that it is merged into the deeds which bespeak their final agreement, and whatever their rights are must be found in their covenants.

II. Under this view of the case, it becomes apparent that it would be useless, if not improper, to pass upon the other questions made and discussed by counsel for the respective parties in their able and exhaustive briefs.

For the reasons stated, the judgment of

the circuit court is reversed, and the peti

tion dismissed.

The foregoing opinion of WOODSON, J., is adopted as the opinion of the court in banc.

BOND, C. J., and WALKER and GRAVES, JJ., concur, and FARIS, BLAIR, and WILLIAMS, JJ., dissent.

In re SIXTH STREET.

KANSAS CITY v. MORRIS et al.

ERRONEOUS INSTRUCTION-CURE BY OTHER INSTRUCTIONS.

An erroneous instruction in condemnation

proceeding that in estimating the value and
damages the jury might disregard all testimony
and act on their own judgment was not cured
by other instructions inconsistent and contra-
dictory thereto given for other parties.
4. APPEAL AND ERROR 1064(1)—REVIEW—
CONTRADICTORY INSTRUCTIONS.

Instructions for a respondent which are in-
consistent entitle appellant, who has served
an exception to them, to a reversal of the case
if his interest had been prejudiced had the jury
followed the one rather than the other.
5. EMINENT DOMAIN 107-DAMAGES-LOSS
OF PROFITS, EXPENSES AND DEPRECIATION.

In condemnation proceedings an owner of land is not entitled to recover for loss of profits in his business during the removal of his stock of goods nor for the expenses or for depreciation caused thereby.

Blair and Graves, JJ., dissenting.

Appeal from Circuit Court, Jackson County; William O. Thomas, Judge.

Condemnation proceeding by Kansas City to open Sixth Street, under Ordinance No. 27134. From a judgment awarding compensation, Morris Max and others appeal. Reversed and remanded.

and J. W. Dana, all of Kansas City, for ap Cooper, Neel & Wright, Robert E. Rooney, pellants T. M. James & Sons China Co. and

Max.

Frank F. Brumback, of Kansas City, for appellant Glover.

E. M. Harber, City Counselor, and J. C. Petherbridge, Asst. City Counselor, both of Kansas City, for respondent Kansas City.

Ingraham, Guthrie & Durham, of Kansas City, for respondents Mageath and others. Sebree, Conrad & Sebree, of Kansas City, for respondent Butler.

John G. Park, of Kansas City, for respondents A B C Fireproof Warehouse Co. and others.

(Supreme Court of Missouri, in Banc. Dec. 19, both of Kansas City, for defendants Chicago, H. M. Langworthy and Frank P. Sebree,

1918.)

1. EVIDENCE 568(4), 571(7)-OPINION EVIDENCE CONCLUSIVENESS.

Expert testimony or opinion evidence is not conclusive on the triers of fact in condemnation proceedings as to the value of the land taken or damages sustained.

2. EMINENT DOMAIN 222(1)-INSTRUCTIONS -WEIGHT OF TESTIMONY.

B. & Q. R. Co. and another.

BOND, C. J. I. In this appeal from a judgment in street condemnation proceedings, all of the appellants and their friends seem to have favored us with separate briefs, similar in quantity to the pile of documents submitted to a famous jurist who decided the case without reading any of them. HowIn condemnation proceedings an instruc- ever, so learned was the defense made by tion that the jury, in estimating the value and the legal pundit of his "aleatory way of dedamage to the property, might act entirely on ciding law debates "that the Rabelaisian sattheir own knowledge and judgment and disre- irist made a plea for his pardon, which it gard all testimony, was erroneous, as failing to state as a condition precedent that they is not certain was allowed. Rabelais, vol. 3. could exclude testimony only after due consid- p. 277, Wallis' Ed. Warned by the meticuloseration thereof. ity of present-day critics of the judiciary, as

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

well as by the pitfall of the noted jurist, we have concluded it might not be altogether proper to put the briefs of the two parties and their collaborators in separate piles and "cast dice" for the result. We shall therefore eschew the ancient precedent (possibly valuable for quickness of decision in medieval times) and do what we can to extract the quintessence of the contentions from the voluminous briefs, and, mayhap, in that way reach the very right of the matter presented by this appeal.

testimony adduced, by the terms of the fol lowing instruction:

"(G-38) The court instructs the jury that they are the exclusive judges of the facts; that in estimating the value and damage to property, if any, they may act entirely upon their own knowledge and judgment and may disregard the testimony of all or any of the witnesses. The testimony of witnesses is advisory only binding or conclusive upon the jury." and the testimony of none of the witnesses is

It is urged on behalf of appellants that the foregoing instruction, in terms telling the jury that "they may act entirely upon their own knowledge and judgment and may disre gard the testimony of all or any of the witnesses," was necessarily prejudicial to them in that the jury were warranted thereunder in excluding from their view any consideration of the relevant testimony of expert wit nesses introduced by appellants which tended to show that the property owned by them was damaged in a substantially larger sum than the amount awarded by the jury.

This is a proceeding begun by Kansas City, Mo., in pursuance of its charter and an authorizing ordinance to ascertain damages and benefits for opening, widening, and establishing Sixth street from the east line of Broadway to the west line of Grand avenue, and thence one block south to Admiral boulevard. The machinery of the circuit court was properly set in motion, and the issues were tried by a jury of six men. Before the origination of this proceeding, the people of Kansas City had voted $450,000 of bonds to cover the assessments against the [1] That expert testimony or opinion evicity for damages to property that might be dence is never conclusive upon the triers of taken. Tripartite interests were represented the fact is a proposition supported by all the at the trial: The owners of the land context-writers and is the settled law of this demned seeking adequate compensation, the state. The only effect of such evidence is owners of the land benefited seeking a just informàtory and advisory, but it is as comassessment of the charges and benefits, and petent and relevant for that purpose and to the city, the protagonist of the improvement. that extent as any other evidence given by After a prolonged trial and the adduction of a competent witness as to a matter of fact evidence on the part of the various parties lying within his own knowledge; and while interested in support of their respective the jury may disregard the testimony of exclaims, instructions were given and refused perts, if disproven by their own experience upon requests by the respective parties and and knowledge or otherwise, they cannot do on July 17, 1917, a verdict was rendered up- so without first considering and weighing it on all the issues. Thereafter, on October 4, and testing its credibility by their own knowl1917, the court permitted the jury, upon ad- edge and experience and by comparison with ditional instructions, to amend their verdict, all other evidence of a contrary import. It and ordered the refiling of all motions for would be quite illogical to say that the jury new trial and in arrest, and subsequently are compelled by law to listen to expert or overruled the same. The effect of this opinion evidence, and then, at the end of the amended verdict simply increased the assess-trial, without any consideration or weighing ment against the city; it did not change the of the testimony thus adduced, render their finding of the jury in other respects. judgment solely in accordance with their own personal views of the matter in controversy.

Under the verdict $614,880.50 were allowed as damages for lands and property taken, of which amount there was assessed against the city the sum of $425,550, and the remainder was assessed against owners of property in the benefit district. From this judgment F. M. James & Sons China Company, Morris Max, and John I. Glover duly appealed, and assigned for error: The giving and refusal of instructions; the imperfection of the verdict; that the award of the jury of damages was inadequate and confiscatory; the exclusion of the testimony of J. C. James; that the court erred in allowing an amendment of the verdict of the jury; and that the verdict, as to appellants, was not sustained by the evidence on the trial.

II. It is insisted that the jury was erroneously restricted in the consideration of the

[2] The fault with the instruction under review is that it failed to state, as a condition precedent to the right of the jury to "disregard the testimony of all or any of the witnesses," that they could only exclude such testimony from their view after due consideration and giving it that weight which it was entitled to have, according to their own "knowledge and judgment" and taken in connection with the other testimony in the case. In other words, the correct rule is that the jury must first consider and weigh such testimony as an integral part of all the evidence bearing on the issues on trial and as compared with their own knowledge on the subject from viewing the premises, and if, after thus regarding it, they are not satisfied of its

truth, then they may disregard it. This has | udiced had the jury followed the one rather been repeatedly decided by this court. Kan- than the other. For it can never be known, sas City v. Hill, 80 Mo. loc. cit. 536; Hull v. | without the art of divination, not enjoyed by St. Louis City, 138 Mo. loc. cit. 627, 40 S. W. appellate courts, which of the two inconsis89, 42 L. R. A. 753; Kansas City v. Baird, 98 tent or contradictory instructions the jury Mo. loc. cit. 218, 11 S. W. 243, 562; Kansas followed in making up their verdict. The City v. Butterfield, 89 Mo. 646, 1 S. W. 831; law on this subject is thus stated: Met. St. Ry. v. Walsh, 197 Mo. loc. cit. 421, "The rule, reading together all the instruc94 S. W. 860. The above instruction was tions given in a case, warrants the supplementgiven at the request of the owners of prop-ing of an imperfect by a perfect instruction, erty in the benefit district, who were interested in minimizing the amount to be found by the jury as damages for the taking of property of appellants. It was prejudicial because the record shows that appellants gave evidence tending to show a substantially larger amount of damages caused by the appropriation of their property than was allowed by the jury. The instruction under review told the jury that, without any previous consideration whatever, they might discard all such evidence and render a verdict solely upon the initiative of "their own knowledge and judgment." We conclude that the instruction misstated the law to the possible prejudice of appellants, and therefore, unless the error therein was cured, the judgment as to appellants must be reversed, and the cause remanded.

It is argued, however, on the part of the city and the owners of property in the benefit district, that the above instruction was not inconsistent with instructions G-1, given by the city, and G-50 given on behalf of the owners of property in the benefit district. [3] In G-1 the jury were told, in substance,

or, in other words, the curing of omissions in one instruction by a complete and correct statement in another one; but it does not go to the extent of holding that an instruction given for respondent which is radically wrong-that is, be cured by another on behalf of the same party perverts the law or prejudges the facts-can which is free from the vice of the former. Such repugnant directions afford no guide to the jury, nor can it be presumed that they followed one rather than the other." Tawney v. United Rys. Co., 262 Mo. loc. cit. 610, 172 S.

W. 10.

See, also, Linn v. Massillon Bridge Co., 78 Mo. App. loc. cit. 118, and cases cited; Pyburn v. Kansas City, 166 Mo. App. loc. cit. 152. 148 S. W. 193, and cases cited; Flynn v. Union Bridge Co., 42 Mo. App. loc. cit. 537, and cases cited.

The antagonism between the instruction quoted above and the other two on which respondent relies to cure the vice of the first is this: By the first instruction (G-38) the jury were distinctly and explicitly told that in making up their verdict on the pivotal point of the value and damages to property

-the sharp question in issue between the that their verdict should be rested upon conthree parties to this litigation-they might sideration of all the evidence in the case in base their estimate "entirely" upon their own connection with their own judgment. In view and might "disregard the testimony of G-50 they were simply told they were the all or any of the witnesses." A clearer aujudges of the credibility of witnesses, and thority to the jury to evolve a verdict from not bound by any testimony as to damages the solitude of their own consciousness could against their own judgment and conviction. not have been expressed in terms. On the The three instructions were given on behalf other hand, the two instructions given on of the parties having interests hostile to ap- behalf of respondents (the city, and the proppellants in this case. Those which respond-erty owners in the district) told the jury, in ent relied on as curing the error of the first are not complementary and supplementary instructions, and hence curative of another which might have been wanting in some element supplied by the latter. But they are directly inconsistent with instruction G-38, given on the same side of the case. When that is the case, the rule warranting the curing of a fault in one instruction by language contained in another has no application whatever. In the case at bar the two latter instructions did not undertake in any way to amend, complete, or supplement omissions in the first, but bluntly stated a contradictory | correct rule stated in the other two instrucrule for the guidance of the jury.

[4] The law is established in this state that instructions for a respondent which are inconsistent entitle an appellant who has saved an exception to them to a reversal of the case if his interest would have been prej

effect, that they could only use their own knowledge and judgment in connection with all the evidence in the case." (Italics ours.) This is a correct statement of the law, but it was diametrically opposed to the statement contained in instruction G-38: for in that instruction the jury was pointed, as the sole source of a proper verdict, to the suggestions of their own intelligence, without any regard whatever to the testimony of all or any one of the witnesses.

Our conclusion is that for the error in giving instruction G-38 in contradiction of the

tions for the same party, the judgment in this case must be reversed, and the cause remanded.

III. As this cause must be retried, it is proper to rule on the instructions of the court on the measure of damages. The instruc

tions bearing on the measure of damages, complained of by appellants, seem to be in strict accord with the rulings of this court. St. Louis v. Railroad, 266 Mo. loc. cit. 701, 707, 182 S. W. 750, L. R. A. 1916D, 713, Ann.

SOUTHERN REAL ESTATE & FINAN-
CIAL CO. v. BANKERS' SURETY
CO. (No. 20430.)

1918.)

Cas. 1918B, 881, and cases cited; St. L., (Supreme Court of Missouri, in Banc. Dec. 19, etc., Ry. v. Knapp-Stout Co., 160 Mo. loc. cit. 412, 61 S. W. 300, and cases cited; Railroad v. Real Estate Co., 204 Mo. loc. cit. 575, 103 S. W. 519, and cases cited.

1. TRIAL ~252(12)
EVIDENCE.

INSTRUCTIONS

In action on contractor's surety bond, defendant's requested instruction on measure of damages, predicated on the view that the evidence shows plaintiff's violation of a building contract so as to release surety from injury to plaintiff by reason of its overpayments to contractor, was properly refused, where the undisputed evidence showed that plaintiff had not overpaid contractor.

2. PRINCIPAL AND SURETY

117-SURETY

ON CONTRACTOR'S BOND-Measure of Dam-
AGES.

[5] The question received careful and discriminating consideration by Faris, J., in the case first cited above (266 Mo. 701, 707, 182 S. W. 750, L. R. A. 1916D, 713, Ann. Cas. 1918B, 881, supra) which dealt seriatim with the three contentions of appellant in this case, i. e.: (a) Where damages were allowable for the removal of a stock of goods from the land condemned to a new location; (b) for depreciation in value caused by such removal and reinstallment; and (c) for injury to the business of respondent on account plaintiff might recover amounts paid by it for In action upon contractor's surety bond, of interruption and cessation during removal. contemplated plant in excess of contract price, Judge Faris held that none of these was em-reduced by amounts paid by it to contractor in braced in the just compensation guaranteed excess of contract percentage of value of work in such cases by the Constitution, basing his and material in place at contractor's abandonconclusion upon the settled law of this state, ment. the authority of standard text-writers, and the adjudged cases elsewhere (with possibly one exception), concluding his review in the following terms:

3. NEW TRIAL 75(3)-VERDICT IN DISREGARD OF INSTRUCTION-Statute.

Under Rev. St. 1909, § 2022, a verdict in action on contractor's bond, which by mistake or in disregard of instruction was only about one-half of the amount shown to be due by plaintiff's uncontradicted evidence, could not be permitted to stand.

Blain, J., dissenting.

"We therefore hold, in consonance with the great weight of authority everywhere, that respondent was not entitled to recover for loss of profits in its business during the removal of its stock of goods, nor for the expense of the removal of its stock of goods and personal property, as contradistinguished from fixtures, from its old location, which was condemned, to a new location, nor for the depreciation in value of such personal property and stock of Action by Southern Real Estate & Financigoods, caused by such removal and reinstalla-al Company against the Bankers' Surety tion." St. Louis v. Railroad, 266 Mo. loc. cit. 706, 182 S. W. 754, L. R. A. 1916D, 713, Ann. Cas. 1918B, 881.

Under the doctrine thus announced, the trial court did not err in its instructions bearing on the measure of damages, nor did it err in excluding the testimony of Mr. James as to the damage suffered by the cessation and interruption of his business and the removal of his stock in trade.

The other errors assigned by the learned counsel for appellant need not be discussed, since they relate merely to procedural matters and are not likely to arise on a retrial of the cause.

For the foregoing reasons, the judgment against appellants is reversed, and the cause remanded for further proceedings in conformity with this opinion. It is so ordered.

WALKER, FARIS, and WILLIAMS, JJ.,

concur.

WOODSON, J., concurs in result.
BLAIR and GRAVES, JJ., dissent.

Charles B. Davis, Judge.
Appeal from St. Louis Circuit Court;

Company.

of the relief demanded, and it appeals. ReJudgment for plaintiff for part versed and remanded, with directions.

This is the second time this case has reached this court. The opinion written on the former appeal is reported in 184 S. W. 1030, which reversed and remanded the cause for another trial.

The facts are practically undisputed, but the contest centers around two legal propositions, which will be presently stated.

When the mandate of this court reached the circuit court, the plaintiff filed an amended petition, setting up the building contract entered into between the plaintiff and the E. H. Abadie Company, a contractor, whereby the latter undertook "to provide all of the materials and perform all the work for the steam heating, ventilating and power plant | for a hotel and theater building being erected on the northeast corner of Seventh and Market streets, in the city of St. Louis," for the sum of $60,000 "to be paid in installments

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

on the 15th day of each month of ninety per cent, of the work in place during the preceding month, according to the certificate of the

architect, the final payment to be made thirty days after the completion of the work includ

ed in the contract."

Counsel for the plaintiff correctly states the case substantially in the following language:

ant and no instructions, save on the question of overpayment to the contractor.

"The defendant offered no evidence at the

trial, and that introduced by plaintiff was to the effect that the contract was breached by the contractor; that the money paid the contractor before the breach was 90 per cent. or less of the value of the work in place; that all of the money paid to others, including that expended to complete the contract, was paid for materials which actually went into the building in the performance of the contract.

"Frederick C. Bonsack testified that he was the architect designated by the contract of the parties and the performance of which the bond in suit was executed to secure; that his particular duty was to see that the work was done according to plans and specifications; that, in pursuance of this duty, he was on the building almost every day and had Samuel C. Black, his superintendent, representing him there all of the time. Mr. Bonsack testified to the additions and alterations made to the contract commonly known as 'extras,' being plaintiff's Exhibits E-F, Exhibits G-H, Exhibits I-J, Exhibits K-L, Exhibits M-N, Exhibits O-P. The aggregate amount of these 'extras' was the $8,963.98, constituting the additions to the orig

"The amended petition pleaded the bond entered into between Abadie Company, as principal, and defendant, as surety, and the plaintiff as obligee, wherein defendant agreed to keep the plaintiff 'harmless and indemnified from and against all and every claim, demand, judgments, liens and mechanics' liens, costs and fees of every description, incurred in suits or otherwise, that might, be had against it or against the building to be erected under said contract, including such alterations and to repay to the said plaintiff all sums of money which it might pay to other persons on account of work and labor done, or materials furnished on or for said buildings by reason of the failure on the part of the said E. H. Abadie Company to pay to said plaintiff all damages it might sustain and all forfeitures to which it might be en-inal contract. titled by reason of the nonperformance or malperformance on the part of said E. H. Abadie Company of any of the covenants, conditions, stipulations and agreements of said contract including such alterations and additions.' The penalty of the bond is $15,000. Said bond further provided that the parties might by agreement make alterations and additions to said contract provided the additional cost thereof did not exceed $5,000. Thereafter an amendment to the bond was agreed upon by the parties whereby alterations and additions to said contract might be made to the amount of $15,000 without any other or further consent of the surety.

"The amended petition further pleaded that additions were made to said contract at a cost of $8,963.98, the partial performance of the contract, and the abandonment thereof by the contractor after payment by plaintiff to said contractor of $62,502.50, upon certificates of the architect, and that said amount constituted approximately 90 per cent. of the value of the work and materials in place on said building to said time; that thereafter plaintiff paid on account of materials furnished on the order of the contractor and incorporated in the building to various persons and corporations the sum of $2,432.50; that plaintiff paid, on account of mechanics' lien judgments against said building on account of material furnished to said contractor, the aggregate sum of $9,468.21; that the cost to plaintiff to complete said contract was $5,607.24, a total cost to plaintiff over and above the contract price of $68,962.98, of $11,064.47, for which amount with interest plaintiff prayed judgment.

"Defendant answered, admitting the execution of the contract and bond and the terms thereof, and as an affirmative defense pleaded a violation of the provisions of the contract in that plaintiff overpaid the contractor. Other affirmative defenses were set out in said answer, but were apparently abandoned by defendant at the trial, as no evidence was offered by defend

"He further testified, as to his method of determining the amount of money to be paid to the contractor, that on each month the contractor would submit a statement to his office of the amount of work he did during the month past; that he (Bonsack) had his superintendent and the representative of the owner on the work to check up this statement, after which he checked it himself and determined to what extent it was correct; that in arriving at this amount he took into consideration the amount of work that had been done according to the best of his ability and that he allowed him ninety per cent. of the amount thereof.

"In connection with the testimony of the architect, Mr. Bonsack, as to his manner of making this computation, plaintiff offered in evidence his certificates identified by him as plaintiff's Exhibits Q, R, S, T, U, V, W, X, Z, AA, BB, respectively, stating that each of them represented 90 per cent. or less of the work in place at the time. Each of these certificates had appended thereto an acknowledgment of receipt of the money called for therein by the contractor, said receipts being admitted by defendant to be genuine, showing payment to said contractor on account of said contract of the sum of $62,502.50.

"He further identified the orders on the owner to pay various amounts to materialmen, same being plaintiff's Exhibits CC, DD, and EE, and stated that these amounts were paid and that the material they represented went into the building under the Abadie contract.

"On cross-examination he testified that the incompleted portion of the contract would not bear the same ratio to the entire work as the $5,607.24 which it cost to complete would bear to the entire contract price, because it would` cost more labor to take hold of a job in that condition and finish it than it would have cost the original contractor to complete it.

"Samuel C. Black confirmed Mr. Bonsack's statements as to his employment in connection with the Abadie contract; that the money paid

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