Llyn Bradford and W.D. Jones for appellant.
(1) A pleading may be amended so as to make it conform to proof, providing the amendment does not substantially change the claim or defense. Sec. 971, R.S. 1939; Harlan v. Moore, 132 Mo. 483, 34 S.W. 70. (2) But a defendant will not be permitted at the trial of a cause to amend by denying facts admitted in his answer; and, conversely, it would logically follow that he could not amend by admitting facts denied in his answer. It was, therefore, reversible error for the trial court in this case to permit defendant to amend by pleading a surrender of the written lease, the existence and execution of which had been previously denied in such answer. Harrison's Administrator v. Hastings, 28 Mo. 346. (3) The lease in this case being in writing, signed by plaintiff as lessor and defendant as lessee, to run for a term of five years and containing covenants to be performed by both parties, could, under the Statute of Frauds, be rescinded or cancelled only by an instrument in writing, signed likewise by both parties. There was no evidence offered by defendant that plaintiff, either in person or by agent, signed the alleged surrender instrument. Morris v. Finkelstein, 145 S.W.2d 439; Babcock v. Rieger, 76 S.W.2d 731; 27 C.J., 215. (4) A surrender of a lease by operation of law, which is expressly excepted from the Statute of Frauds, results where the landlord and tenant join together in some open and notorious transaction which is inconsistent with the continued distinct existence of the relationship under the old lease, indicating the intention of the parties that the leasehold interest should be surrendered, as where the tenant accepts a new lease from the landlord to take effect during the continuance of the interest created by the previous lease. D.A. Shulte, Inc., v. Haas, 287 S.W. 816; Sander v. Holstein Commission Co., 121 Mo. App. 293, 99 S.W. 12; Tobaner v. Miller, 68 Mo. App. 569; 35 C.J. 1090. (5) Where surrender by operation of law based on a new lease or written agreement between the parties is relied on, the terms of the new agreement must, like any other contract, be definite and certain and agreed upon by both parties; and no such contract or new lease agreement can be held to come into existence where essential terms are still open for future negotiation. Hutting v. Breenan, 328 Mo. 471, 41 S.W.2d 1054; Cole Co. v. Central Mo. Trust Co., 302 Mo. 222, 257 S.W. 774; Green v. Cole, 103 Mo. 70; Eads v. City of Carondelet, 42 Mo. 113; Hubbard v. Turner Department Store Co., 220 Mo. App. 95, 278 S.W. 1060; 1 Williston on Contracts (Ed. 1924), 78. (6) A party is bound on appeal by the theory he adheres to in the trial court; and in this case defendant having relied on a surrender by operation of law and not an express surrender, as shown by defendant's instructions, such surrender by operation of law could be consummated only by consent of all the parties to a new rental agreement definite in all its essential terms and leaving no essential terms for future agreement. D.A. Shulte, Inc., v. Haas, supra; 13 C.J. 263; Olmstead v. Distilling Cattle Feeding Co., 77 F. 265. (7) The best evidence of the terms of a contract or instrument in writing is the writing itself, and parole evidence is not admissible unless the instrument is lost or its absence is satisfactorily explained. It was, therefore, error for the court to permit defendant in this case to give parole evidence as to the terms and provisions and substance of an alleged written surrender not produced nor its absence accounted for. Lampel Land Improvement Co. v. Spellings, 236 Mo. 33, 139 S.W. 345; 22 C.J. 986. (8) The law conclusively presumes that all preliminary conversations and oral agreements are merged into and superseded by a written instrument when executed; and the rights and obligations of the parties are governed entirely by the provisions of the written instrument. Hence, as a matter of law, all prior tentative agreements in this case testified to by defendant with reference to the rent, such as "write her own ticket" and determining the rent from her volume of business, were merged and settled finally, by plaintiff's Exhibit B, a written instrument signed by both parties and reasserting the existence of the original written lease. Jesse v. Rolaff, 74 S.W.2d 890; Tuggles v. Callison, 143 Mo. 527, 45 S.W. 291; Christman v. Hodges, 75 Mo. 413; Hagar v. Hagar, 71 Mo. 610; New York Life Insurance Co. v. Wolfson, 124 Mo. App. 286, 101 S.W. 162. (9) An instruction submitting the case and directing a verdict upon the finding of certain facts is fatally defective if it ignores any necessary exceptions which may appear from the evidence. Hence, defendant's instruction three, directing a verdict in her favor upon a finding that the original lease was surrendered and a new rental arrangement entered into, was fatally defective in that it ignored plaintiff's Exhibit B, which reasserted and reaffirmed said original. Regardless of where the burden of proof falls, it is reversible error for the instructions to ignore necessary issues. Perkins v. Equitable Life Insurance Society, 73 S.W.2d 415; Cantley v. Plattner, 228 Mo. App. 411, 67 S.W.2d 125; Alexander v. Hoenshell, 66 S.W.2d 164; La Font v. Bryant, 60 S.W.2d 415; McDonald v. Kansas City Gas Co., 59 S.W.2d 37; Jones v. Railway Co., 226 Mo. App. 1152, 50 S.W.2d 217. (10) An instruction submitting an issue not supported by any evidence is reversible error. Hence, the trial court committed reversible error in giving defendant's instruction three, submitting the issue of a new rental agreement, there being no evidence to support it and all the evidence showing that no definite agreement subsequent to the written lease was ever made as to the amount of rent to be paid by defendant. Neal v. Curtiss Manufacturing Co., 328 Mo. 389, 41 S.W.2d 543; Birdsong v. Jones, 225 Mo. App. 242, 30 S.W.2d 1094. (11) The burden of proof was on defendant to prove the elements submitted in her counterclaim, and it was reversible error for the court to give defendant's instructions four and five, authorizing the jury to award actual and punitive damages upon the finding of certain facts therein hypothesized without further requiring defendant to have proven such facts by a preponderance or greater weight of the evidence. International Shoe Co. v. Lischitz, 72 S.W.2d 122; Mott v. Railway Co., 79 S.W.2d 1057; McCloskey v. Coplar 329 Mo. 527, 46 S.W.2d 557. (12) Where one party brings out part of a transaction, conversation, or course of conduct as an admission against the other party's interest, the other party is entitled thereafter to bring out the whole of it to offer his own explanation of the occurrence and dispute its discrediting effect although in so doing he resorts to a character of proof which otherwise would be incompetent. Hence, it was error to restrict plaintiff's cross-examination of witness Dunlap. Dunn v. Alton Railway Co., 88 S.W.2d 224. (13) It is error for the court to make comments on the evidence and give the court's version or conception of the evidence, either by written instructions or oral remarks. In re Bearden, 86 S.W.2d 585. (14) An instruction submitting a particular theory must be justified by the pleadings and the evidence; and it is reversible error for the court to give an instruction beyond the scope of either the pleadings or the evidence. Hence, the trial court committed reversible error in giving defendant's Instruction No. 3, submitting the issue of a release and cancellation of the original lease and the substitution of a new and different rental arrangement, there being no evidence in the case from either side to support the same. Koebel v. Tieman Coal Material Co., 337 Mo. 561, 85 S.W.2d 519; Mitchell v. Wabash Ry. Co., 334 Mo. 926, 69 S.W.2d 286; Clark v. Wells, 44 S.W.2d 863; Neal v. Curtiss Co. Mfg. Co., 328 Mo. 389, 41 S.W.2d 543. (15) A surrender of a lease cannot be effected by the act of only one party, concurrence of both the lessor and lessee being necessary. Hence, there could be no written, express surrender in this case where the instrument relied on to constitute the same was admittedly signed only by the lessees and was not signed by the lessor or by any authorized agent in his behalf; and neither could there be any surrender by operation of law, there being no evidence of any subsequent, definite rental arrangement entered into between the parties to take the place of the original written lease, under which the defendant remained in possession, all the evidence being to the contrary. Crow v. Kaupp, 50 S.W.2d 995. (16) The court, in construing a written instrument, may not, to fasten liability on a party thereto, add or take away words and thereby alter the sense of the instrument. Liggett v. Levy, 233 Mo. 590, 136 S.W. 299. (17) Where there is no ambiguity in the terms of a written instrument, it is the province of the court and not the jury to determine its meaning. Consequently, the court erred in not holding, as a matter of law, that under the plain language and provisions of the supplemental contract marked plaintiff's Exhibit "B" the original written lease remained in full force and effect. Donovan v. Boeck, 217 Mo. 70, 116 S.W. 543; Caldwell v. Dickson, 26 Mo. 60; Weinstein v. Spalding Cloak Co., 193 S.W. 994; N.Y. Ins. Co. v. Wolfson, 124 Mo. App. 286, 101 S.W. 162; Young v. Van Natta, 113 Mo. App. 550, 88 S.W. 123; Blanke v. Dummerman, 67 Mo. App. 591. (18) The trial court should not comment in the jury's presence upon what the testimony of a witness was, that being for the jury. Kaiser v. Jaccard, 52 S.W.2d 18.
E.W. Allison and Claude T. Wood for respondent.
(1) The trial court committed no error in permitting respondent to amend her answer by interlineation during the trial so as to plead a surrender of the written lease, but any objection appellant might have had to the allowance of the amendment was waived by appellant by failure to file an affidavit of surprise, to ask for a continuance or to move to strike out the amendment, and by going to trial upon the amended answer. Secs. 969, 982, R.S. 1939; Lee v. W.E. Fuetterer Battery Supplies Co., 323 Mo. 1204, 23 S.W.2d 45; Harrison's Adm. v. Hastings, 28 Mo. 346. (2) The evidence offered by respondent was sufficient for the jury to find an express surrender of the original lease, as well as a surrender of the lease by operation of law. Sec. 3353, R.S. 1939; Wells v. Warnick, 198 S.W. 1121. (3) The uncertainty, if any, as to the amount of rental to be paid under the new agreement was so supplemented by the subsequent acts, agreements and declarations of the parties as to make it certain and enforceable. 6 R.C.L. 645; Huttig v. Brennan, 41 S.W.2d 1054. (4) It was not error for the court to permit respondent in this case to give parol evidence as to the terms and provisions and substance of the alleged written surrender for the reason that its absence was satisfactorily accounted for by respondent. Miller v. Phoenix Fire Ins. Co., 9 S.W.2d 672. (5) Appellant's Exhibit "B" was offered for and could serve the sole purpose of rebuttal of respondent's testimony that the old lease had been surrendered. (6) There was no error committed by the trial court in giving respondent's Instruction 3, submitting the issue of a new rental agreement. White v. Scarritt, 341 Mo. 1004, 111 S.W.2d 18. (7) Appellant waived her right to have the court instruct the jury that respondent was required to prove the facts on which her counterclaim was based by a preponderance or greater weight of the evidence, by not request-such an instruction. Kerr v. Railroad, 113 Mo. App. 1, 87 S.W. 596; Erickson v. Lundgren et al., 37 S.W.2d 629; Cornwell v. Highway Motor Freight Lines, Inc., et al., 348 Mo. 19, 152 S.W.2d 10; Flint v. Loew's St. Louis Realty Amusement Corp., 344 Mo. 310, 126 S.W.2d 193. (8) The statement of the trial court complained of by appellant under her assignment No. 13 was not a comment on the evidence and was not error. Phares v. Century Electric Co., 131 S.W.2d 879. (9) The jury properly returned a verdict in favor of respondent on her counterclaim in the amount of $400 for actual damages and $200 for punitive damages. Sec. 929, R.S. 1939; Wood v. Gabler, 70 S.W.2d 110; Dolph v. Barry, 165 Mo. App. 659; Gildersleeve v. Overstolz, 90 Mo. App. 518.
1. — Pleading. Whether defendant should be permitted to amend answer and counterclaim by interlineation was largely in the discretion of trial court.
2. — Pleading. In landlord's action for rent, trial court did not abuse its discretion by permitting tenant to amend by interlineation her answer and counterclaim so as to allege agreement by landlord's agent to abrogation of written lease before tenant entered into possession, in view of state of pleadings.
3. — Landlord and Tenant. Award of compensatory damages for tenant's loss of business allegedly resulting from misconduct of landlord and landlord's agent could not be sustained where tenant admitted that she was merely speculating upon the loss of business.
4. — Damages. A finding of compensatory damages cannot rest on speculation.
5. — Landlord and Tenant. Even if written lease was abrogated before tenant entered into possession, denial of recovery in landlord's action for rent required a finding that rent paid by tenant was fair and that landlord had received all she was entitled to.
6. — Landlord and Tenant. Jury could award punitive damages against landlord if it found that tenant suffered some actual damage by having electricity and water turned off and that landlord's agent acted maliciously in so doing.
BLAIR, P.J.
Plaintiff (appellant here) sued defendant (respondent here) in two counts, one for rent and one for money and other things advanced to defendant, and defendant denied both counts of plaintiff's petition, and filed a counterclaim, alleging change of the rental contract and damages for misconduct on the part of plaintiff and her agent, and asking punitive damages in addition.
The jury found against plaintiff unanimously on the first and second counts of her petition, and ten jurors signed a verdict for defendant on her counterclaim and awarded defendant $400 actual damages and $200 punitive damages, or $600 in all. Judgment was entered on such verdict and plaintiff filed her motion for new trial, alleging nineteen separate grounds therefor. Upon such motion for new trial being overruled by the trial court, plaintiff has appealed.
While plaintiff made so many assignments of error in her motion for new trial, we are only confronted with eleven assignments of error here, and feel that we do not need to consider that many in disposing of the case.
The first assignment that we need to consider is that the trial court erred in permitting defendant to amend by interlineation count III of her answer and counterclaim. This was largely in the discretion of the trial court. Anyway, plaintiff filed no affidavit of surprise. It was the contention of defendant that the written lease, agreed to entirely by an agent of plaintiff, was abrogated by such agent before she ever entered into possession of the premises. Defendant had already alleged in her counterclaim that plaintiff and defendant entered into a verbal lease. She had denied in count I of her answer that she had entered into a written lease at all, at least her testimony was that it was not, until the written lease was entirely abrogated, that she entered into possession of the premises. The lease in evidence did not provide that the lease could not be abrogated except by the signature of the plaintiff. The jury evidently believed defendant's testimony, since it found for defendant on the first count of plaintiff's petition.
We are unable to see any error in the trial court permitting defendant to amend such counterclaim and to detail in evidence the facts which she claimed attended the cancellation of the lease. There is no question in the case but that plaintiff's father fully represented plaintiff, and if he agreed for plaintiff that the lease would be abrogated, before defendant entered into possession of the premises, we do not see how an appellate court can interfere in any way.
We regard another assignment as more serious. On cross-examination defendant testified:
"Q. Are you just speculating about the loss of business or are you basing it on the business that you actually had? A. I had to speculate.
"Q. I see. Just a speculation then? A. That's right."
According to defendant's own admission, her actual damages were purely speculative. A finding of compensatory damages cannot rest on guesswork, conjecture or speculation. [17 Cyc. 758; Green v. Chicago, etc., R. Co., 156 Mo. App. 259, 137 S.W. l.c. 613; Meese v. Thompson, 344 Mo. 777, 129 S.W.2d l.c. 850.]
Nor do we think the court properly instructed the jury in Instruction D-G-3 that it could find for defendant on the first count of plaintiff's petition, without requiring the jury to find that defendant had paid to plaintiff all that plaintiff was entitled to receive, even if the original lease had been abrogated, as defendant claimed in her answer. Defendant testified that the rent she paid was fair; but the jury should so have found and should have been so instructed before it could find for defendant on the first count of plaintiff's petition. Defendant never did fix any amount as the rental for said premises, even if the original lease was abrogated, as defendant claimed, and the jury had no right to have a roving commission to find for defendant on the first count.
So far as punitive damages are concerned, defendant suffered some actual damages by the turning off of the electricity and the water in the premises occupied by her. The jury had the right to find that such acts by plaintiff's agent were indefensible and malicious, in order to prevent the occupation of such premises by the defendant, and to compel defendant to vacate the premises. If the jury found that defendant suffered some actual damages by having such electricity and water turned off, and that plaintiff's agent acted "maliciously" in so doing, as required by the trial court, the jury had the right to assess punitive damages against plaintiff in favor of defendant on her counterclaim.
Nor are we satisfied with the verdict for defendant on the second count of plaintiff's petition. O.W. Dickerson, father and agent of the plaintiff, testified positively that on March 10, 1941, "I advanced certain sums of money to Mrs. Kelchner for the purpose of buying equipment for this Blackberry Patch. It was my daughter's money that I advanced. On March the 10th I advanced her a check for fifty dollars to buy equipment, on March the 15th another fifty dollars, on on March the 20th an additional check for seventy-five dollars, on March the 23rd an additional check for seventy-five dollars, on March the 25th a check for twenty-five dollars, on March 25th a second check for twenty-five dollars, and on March the 29th one for seventy-five dollars," or a total of $375. Defendant first told Dickerson, as he said, that this amount was for equipment, but, in a later letter to him, Dickerson testified that defendant said the amounts were used to pay off a former partner. If that letter and those checks are in existence and are in evidence on another trial, they would likely overcome defendant's simple denial that she got the money and another jury might not find for defendant so readily upon the second count of plaintiff's petition. We have searched the record and fail to find any such exhibits now in evidence.
We do not know what to say about Exhibit B. The original lease was dated January 20, 1941. Exhibit B was dated September 6, 1941, and referred in its last paragraph to a contract bearing date of February 1, 1941. If this was the date of the abrogation of the original contract, as claimed by defendant, it would help out her case very much. If Exhibit B erroneously referred to the original lease of January 20, 1941, as the contract of February 1, 1941, it is very doubtful if defendant could be heard at all to say that the original lease had been abrogated in any other respect than as set out in Exhibit B. As the case must be retried, this matter can be more fully developed then.
There are other assignments of error alleged to have been committed by the trial judge; but we feel that it is unnecessary to notice them, if they have not been already covered, as they are not likely to recur upon another trial. The judgment is reversed, for the reasons given, and the cause is remanded to the Circuit Court for another trial. Smith and Fulbright, JJ., concur.
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