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

TION-CURE BY OTHER INSTRUCTIONS. But, as previously indicated, the question proceeding that in estimating the value and

An erroneous instruction in condemnation here presented was not presented in that damages the jury might disregard all testimony case, viz. that the acceptance of the divi- and act on their own judgment was not cured dends was a waiver of her right to the se- by other instructions inconsistent and contracurities and a full performance of the terms dictory thereto given for other parties. of the contract, which was merged into the 4. APPEAL AND ERBOR Cw1064(1)–REVIEWwill, and that it alone bespeaks their final CONTRADICTORY INSTRUCTIONS. and last agreement. But be that as it may,

Instructions for a respondent which are init seems to be in point.

consistent entitle appellant, who has served Trabue's Heirs v. North, 9 Ky. (2 A. K. an exception to them, to a reversal of the case Marsh.) 361, is an erroneous citation.

if his interest had been prejudiced had the jury After a most careful consideration of the followed the one rather than the other. authorities cited by learned counsel for each 5. EMINENT DOMAIN Sa 197—DAMAGES-Loss party, we are satisfied that practically all OF PROFITS, EXPENSES AND DEPRECIATION. of them, including the direct rulings of this In condemnation proceedings an owner of court, sustain the contention of counsel for land is not entitled to recover for loss of profdefendant, to the effect that the acceptance its in his business during the removal of his of the deeds by the plaintiff is a complete stock of goods nor for the expenses or for deexecution of the contract to convey, and that preciation caused thereby. it is merged into the deeds which bespeak

Blair and Graves, JJ., dissenting. their final agreement, and whatever their rights are must be found in their covenants.

Appeal from Circuit Court, Jackson CounII. Under this view of the case, it becomes ty; William 0. Thomas, Judge. apparent that it would be useless, if not im

Condemnation proceeding by Kansas City proper, to pass upon the other questions to open Sixth Street, under Ordinance No. made and discussed by counsel for the re-27134. From a judgment awarding compenspective parties in their able and exhaustive sation, Morris Max and others appeal. Rebriefs.

versed and remanded. For the reasons stated, the judgment of the circuit court is reversed, and the peti- and J. W. Dana, all of Kansas City, for ap

Cooper, Neel & Wright, Robert E. Rooney, tion dismissed. The foregoing opinion of WOODSON, J., pellants T. M. James & Sons China Co. and

Max. is adopted as the opinion of the court in banc.

Frank F. Brumback, of Kansas City, for

appellant Glover. BOND, C. J., and WALKER and GRAVES,

E. M. Harber, City Counselor, and J. C. JJ., concur, an FARIS, BLAIR, and WIL Petherbridge, Asst. City Counselor, both of LIAMS, JJ., dissent.

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. In re SIXTH STREET.

John G. Park, of Kansas City, for respond

ents A B C Fireproof Warehouse Co. and KANSAS CITY V. MORRIS et al. others. (Supreme Court of Missouri, in Banc. Dec. 19, both of Kansas City, for defendants Chicago,

H. M. Langworthy and Frank P. Sebree, 1918.)

B. & Q. R. Co. and another. 1. EVIDENCE 568(4), 571(7)-OPINION EviDENCE-CONCLUSIVENESS.

BOND, C. J. I. In this appeal from a Expert testimony or opinion evidence is not judgment in street condemnation proceedings, conclusive on the triers of fact in condemna- all of the appellants and their friends seem tion proceedings as to the value of the land tak-to have favored us with separate briefs, simien or damages sustained.

lar in quantity to the pile of documents sub2. EMINENT DOMAIN OW222(1)-INSTRUCTIONS mitted to a famous jurist who decided the -WEIGHT OF TESTIMONY.

case without reading any of them. How In 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 their own knowledge and judgment and disre- irist made a plea for his pardon, which it

ciding law debates “that the Rabelaisian satgard 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 Ora 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, , testimony adduced, by the terms of the folwe have concluded it might not be altogether lowing instruction: proper to put the briefs of the two parties

"(G-38) The court instructs the jury that and their collaborators in separate piles and they are the exclusive judges of the facts; that "cast dice" for the result. We shall there in estimating the value and damage to property, fore eschew the ancient precedent (possibly if any, they may act entirely upon their own valuable for quickness of decision in medie knowledge and judgment and may disregard val times) and do what we can to extract the the testimony of all or any of the witnesses. quintessence of the contentions from the The testimony of witnesses is advisory only voluminous briefs, and, mayhap, in that way binding or conclusive upon the jury."

and the testimony of none of the witnesses is reach the very right of the matter presented by this appeal.

It is urged on behalf of appellants that the This is a proceeding begun by Kansas City, foregoing instruction, in terms telling the Mo., in pursuance of its charter and an au jury that “they may act entirely upon their thorizing ordinance to ascertain damages own knowledge and judgment and may disreand benefits for opening, widening, and estab- gard the testimony of all or any of the witlishing Sixth street from the east line of nesses,” was necessarily prejudicial to them Broadway to the west line of Grand avenue, in that the jury were warranted thereunder and thence one block south to Admiral boule. in excluding from their view any consideravard. The machinery of the circuit court tion of the relevant testimony of expert witwas properly set in motion, and the issues nesses introduced by appellants which tended. were tried by a jury of six men. Before

to show that the property owned by them the origination of this proceeding, the peo

was damaged in a substantially larger sum ple of Kansas City had voted $450,000 of than the amount awarded by the jury. bonds to cover the assessments against the

[1] That expert testimony or opinion evi. city 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 con- text-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 informátory 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 wbile 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 Under the verdict $614,880.50 were allow- own personal views of the matter in coned as damages for lands and property taken, troversy. of which amount there was assessed against [2] The fault with the instruction under the city the sum of $425,550, and the remain- review is that it failed to state, as a condider was assessed against owners of property tion precedent to the right of the jury to “disin the benefit district. From this judgment F. regard the testimony of all or any of the witM. James & Sons China Company, Morris nesses,” that they could only exclude such Max, and John I. Glover duly appealed, and testimony from their view after due considerassigned for error: The giving and refusal ation and giving it that weight which it was of instructions; the imperfection of the ver- entitled to have, according to their own dict; that the award of the jury of dam- "knowledge and judgment" and taken in conages was inadequate and confiscatory; the nection with the other testimony in the case. exclusion of the testimony of J. C. James; In other words, the correct rule is that the that the court erred in allowing an amend jury must first consider and weigh such tesment of the verdict of the jury; and that timony as an integral part of all the evidence the verdict, as to appellants, was not sustain- bearing on the issues on trial and as comed by the evidence on the trial.

pared with their own knowledge on the subII. It is insisted that the jury was erro-ject from viewing the premises, and if, after neously restricted in the consideration of the 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 inter- or, in other words, the curing of omissions in ested in minimizing the amount to be found one instruction by a complete and correct stateby the jury as damages for the taking of ment in another one; but it does not go to the property of appellants. It was prejudicial extent of holding that an instruction given for because the record shows that appellants respondent which is radically wrong-that is, gave evidence tending to show a substantial- be cured by another on behalf of the same party

perverts the law or prejudges the facts-can ly larger amount of damages caused by the which is free from the vice of the former. appropriation of their property than was

Such repugnant directions afford no guide to allowed by the jury. The instruction un- the jury, nor can it be presumed that they folder review told the jury that, without any lowed one rather than the other.” Tawney v. previous consideration whatever, they might United Rys. Co., 262 Mo. loc. cit. 610, 172 S. discard all such evidence and render a ver

W. 10. dict solely upon the initiative of “their own

Sée, also, Linn v. Massillon Bridge Co., 78 knowledge and judgment." We conclude that the instruction misstated the law to the burn v. Kansas City, 166 Mo. App. loc. cit.

Mo. App. loc. cit. 118, and cases cited; Py. possible prejudice of appellants, and there

152, 148 S. W. 193, and cases cited; Flynn v. fore, unless the error therein was cured, the Union Bridge Co., 42 Mo. App. loc. cit. 537, judgment as to appellants must be reversed,

and cases cited. and the cause remanded.

The antagonism between the instruction It is argued, however, on the part of the quoted above and the other two on which recity and the owners of property in the bene- spondent relies to cure the vice of the first fit district, that the above instruction was

is this: By the first instruction (G-38) the not inconsistent with instructions G-1, given by the city, and G-50 given on behalf of the jury were distinctly and explicitly told that

in making up their verdict on the pivotal owners of property in the benefit district. [3] In G-1 the jury were told, in substance, point of the value and damages to property

-the sharp question in issue between the that their verdict should be rested upon con

three 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 responderty owners in the district) told the jury, in ent relied on as curing the error of the first effect, that they could only use their own are not complementary and supplementary knowledge and judgment in connection with instructions, and hence curative of another all the evidence in the case." (Italics ours.) which might have been wanting in some ele. This is a correct statement of the law, but it ment supplied by the latter. But they are was diametrically opposed to the statement directly inconsistent with instruction G-38, contained in instruction G-38; for in that given on the same side of the case. When instruction the jury was pointed, as the sole that is the case, the rule warranting the cur- source of a proper verdict, to the suggestions ing of a fault in one instruction by language of their own intelligence, without any regard contained in another has no application 'what- whatever to the testimony of all or any one ever. In the case at bar the two latter in- of the witnesses. structions did not undertake in any way to Our conclusion is that for the error in givamend, complete, or supplement omissions ing instruction G-38 in contradiction of the in the first, but bluntly stated a contradictory correct rule stated in the other two instrucrule for the guidance of the jury.

tions for the same party, the judgment in [4] The law is established in this state this case must be reversed, and the cause that instructions for a respondent which are remanded. inconsistent entitle an appellant who has III. As this cause must be retried, it is saved an exception to them to a reversal of proper to rule on the instructions of the court the case if his interest would have been prej- I on the measure of damages. The instruc


tions bearing on the measure of damages, complained of by appellants, seem to be in SOUTHERN REAL ESTATE & FINAN.' strict accord with the rulings of this court. CIAL CO. v. BANKERS' SURETY St. Louis v. Railroad, 266 Mo. loc. cit. 701,

CO. (No. 20430.) 707, 182 S. W. 750, L. R. A. 1916D, 713, Ann. (Supreme Court of Missouri, in Banc. Dec. 19, Cas. 1918B, 881, and cases cited; St. L.,

1918.) etc., Ry. v. Knapp-Stout Co., 160 Mo. loc. cit. 412, 61 S. W. 300, and cases cited; Railroad 1. TRIAL On 252(12) INSTRUCTIONS v. Real Estate Co., 204 Mo. loc. cit. 575, 103 EVIDENCE. S. W. 519, and cases cited.

In action on contractor's surety bond, de[5] The question received careful and dis- fendant's requested instruction on measure of criminating consideration by Faris, J., in the damages, predicated on the view that the evicase first cited above (266 Mo. 701, 707, 182dence shows plaintiff's violation of a building S. W. 750, L. R. A. 1916D, 713, Ann. Cas. contract so as to release surety from injury to 1918B, 881, supra) which dealt seriatim with plaintiff by reason of its overpayments to conthe three contentions of appellant in this disputed evidence showed that plaintiff had not

tractor, was properly refused, where the uncase, i. e.: (a) Where damages were allow-overpaid contractor. able for the removal of a stock of goods from

117-SURETY the land condemned to a new location; (b) 2. PRINCIPAL AND SURETY

ON CONTRACTOR'S BOND-MEASURE OF DANfor 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 works 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 3. New TRIAL P75(3)—VERDICT IN DISREthe adjudged cases elsewhere (with possibly GARD OF INSTRUCTION-STATUTE. one exception), concluding his review in the Under Rev. St. 1909, § 2022, a verdict in following terms:

action on contractor's bond, which by mistake “We therefore hold, in consonance with the or in disregard of instruction was only about great weight of authority everywhere, that re-one-half of the amount shown to be due by spondent was not entitled to recover for loss plaintiff's uncontradicted evidence, could not be of profits in its business during the removal permitted to stand. of its stock of goods, nor for the expense of the Blain, J., dissenting. removal of its stock of goods and personal property, as contradistinguished from fixtures,

Appeal from St. Louis Circuit Court; from its old location, which was condemned, to

Charles B. Davis, Judge. 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. Company. Judgment for plaintiff for part 706, 182 S. W. 754, L. R. A. 1916D, 713, Ann.

ReCas. 1918B, 881.

of the relief demanded, and it appeals.

versed and remanded, with directions. Under the doctrine thus announced, the trial court did not err in its instructions

This is the second time this case has reach: bearing on the measure of damages, nor did ed this court. The opinion written on the it err in excluding the testimony of Mr. James former appeal is reported in 184 S. W. 1030, as to the damage suffered by the cessation which reversed and remanded the cause for and interruption of his business and the re

another trial. moval of his stock in trade.

The facts are practically undisputed, but The other errors assigned by the learned the contest centers around two legal proposicounsel for appellant need not be discussed, tions, which will be presently stated. since they relate merely to procedural mat

When the mandate of this court reached ters and are not likely to arise on a retrial the circuit court, the plaintiff filed an amendof the cause.

ed petition, setting up the building contract For the foregoing reasons, the judgment entered into between the plaintiff and the E. against appellants is reversed, and the cause H, Abadie Company, a contractor, whereby remanded for further proceedings in conform the latter undertook “to provide all of the ity with this opinion. It is so ordered.

materials and perform all the work for the

steam heating, ventilating and power plant WALKER, FARIS, and WILLIAMS, JJ., for a hotel and theater building being erected

on the northeast corner of Seventh and MarWOODSON, J., concurs in result.

ket streets, in the city of St. Louis," for the BLAIR and GRAVES, JJ., dissent.

sum of $60,000 “to be paid in installments


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

on the 15th day of each month of ninety per ant' and no instructions, save on the question of cent, of the work in place during the preced- overpayment to the contractor. ing month, according to the certificate of the

"The defendant offered no evidence at the architect, the final payment to be made thirty trial, and that introduced by plaintiff was to days after the completion of the work includ-contractor; that the money paid the contractor

the effect that the contract was breached by the ed in the contract."

before the breach was 90 per cent. or less of Counsel for the plaintiff correctly states the value of the work in place; that all of the the case substantially in the following lan- money paid to others, including that expended guage:

to complete the contract, was paid for materials

which actually went into the building in the "The amended petition pleaded the bond en- performance of the contract. tered into between Abadie Company, as prin- "Frederick C. Bonsack testified that he was cipal, and defendant, as surety, and the plain the architect designated by the contract of the tiff as obligee, wherein defendant agreed to keep parties and the performance of which the bond the plaintiff 'harmless and indemnified from and in suit was executed to secure; that his paragainst all and every claim, demand, judgments, ticular duty was to see that the work was done liens and mechanics' liens, costs and fees of according to plans and specifications; that, in every description, incurred in suits or otherwise, pursuance of this duty, he was on the building that might be had against it or against the almost every day and had Samuel C. Black, his building to be erected under said contract, in- superintendent, representing him there all of cluding such alterations and to repay to the the time. Mr. Bonsack testified to the addisaid plaintiff all sums of money which it might tions and alterations made to the contract compay to other persons on account of work and monly known as 'extras,' being plaintiff's Exlabor done, or materials furnished on or for hibits E-F, Exhibits G-H, Exhibits 1-J, Exsaid buildings by reason of the failure on the hibits K-L, Exhibits M-N, Exhibits 0-P. part of the said E. H. Abadie Company to The aggregate amount of these 'extras' was the pay to said plaintiff all damages it might sus- $8,963.98, constituting the additions to the origtain and all forfeitures to which it might be en- inal contract. titled by reason of the nonperformance or mal- "He further testified, as to his method of deperformance on the part of said E. H. Abadie termining the amount of money to be paid to Company of any of the covenants, conditions, the contractor, that on each month the constipulations and agreements of said contract in- tractor would submit a statement to his office cluding such alterations and additions.' The of the amount of work he did during the month penalty of the bond is $15,000. Said bond past; that he (Bonsack) had his superintendent further provided that the parties might by and the representative of the owner on the work agreement make alterations and additions to to check up this statement, after which he said contract provided the additional cost there- checked it himself and determined to what exof did not exceed $5,000. Thereafter an amend- tent it was correct; that in arriving at this ment to the bond was agreed upon by the par- amount he took into consideration the amount ties whereby alterations and additions to said of work that had been done according to the contract might be made to the amount of $15,- best of his ability and that he allowed him 000 without any other or further consent of the ninety per cent. of the amount thereof. surety.

“In connection with the testimony of the “The amended petition further pleaded that architect, Mr. Bonsack, as to his manner of additions were made to said contract at a cost making this computation, plaintiff offered in of $8,963.98, the partial performance of the con- evidence his certificates identified by him as tract, and the abandonment thereof by the plaintiff's Exhibits Q, R, S, T, U, V, W, X, Z, contractor after payment by plaintiff to said AA, BB, respectively, stating that each of them contractor of $62,502.50, upon certificates of represented 90 per cent. or less of the work in the architect, and that said amount constituted place at the time. Each of these certificates had approximately 90 per cent. of the value of the appended thereto an acknowledgment of receipt work and materials in place on said building to of the money called for therein by the contracsaid time; that thereafter plaintiff paid on ac- tor, said receipts being admitted by defendant count of materials furnished on the order of the to be genuine, showing payment to said concontractor and incorporated in the building to tractor on account of said contract of the sum various persons and corporations the sum of of $62,502.50. $2,432.50; that plaintiff paid, on account of "He further identified the orders on the ownmechanics' lien judgments against said building er to pay various amounts to materialmen, same on account of material furnished to said con- being plaintiff's Exhibits CC, DD, and EE, and tractor, the aggregate sum of $9,468.21; that stated that these amounts were paid and that the cost to plaintiff to complete said contract the material they represented went into the was $5,607.24, a total cost to plaintiff over and building under the Abadie contract. above the contract price of $68,962.98, of $11,- “On cross-examination he testified that the 061.47, for which amount with interest plaintiff incompleted portion of the contract would not prayed judgment.

bear the same ratio to the entire work as the “Defendant answered, admitting the execution $5,607.24 which it cost to complete would bear of the contract and bond and the terms there to the entire contract price, because it would of, and as an affirmative defense pleaded a vio cost more labor to take hold of a job in that lation of the provisions of the contract in that condition and finish it than it would have cost plaintiff overpaid the contractor. Other af- the original contractor to complete it. firmative defenses were set out in said answer, “Samuel C. Black confirmed Mr. Bonsack's but were apparently abandoned by defendant at statements as to his employment in connection the trial, as no evidence was offered by defend. with the Abadie contract; that the money paid

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