Drake v. Board of Education

106 S.W. 650, 208 Mo. 540, 1907 Mo. LEXIS 262
CourtSupreme Court of Missouri
DecidedDecember 24, 1907
StatusPublished
Cited by17 cases

This text of 106 S.W. 650 (Drake v. Board of Education) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Drake v. Board of Education, 106 S.W. 650, 208 Mo. 540, 1907 Mo. LEXIS 262 (Mo. 1907).

Opinion

WOODSON, J.

The facts of this case are agreed to, and, as they are substantially and tersely stated in brief of counsel for respondent, we will adopt their statement as the statement of the facts in the case, which is as follows:

“The controversy in this case was submitted under section 793, Revised Statutes 1899, without formal pleadings as an agreed case without action, and involved the single question as to the construction of the right of renewal under a certain lease made by the respondent, the Board of Education of the City of St. Louis, of certain property in City Block 88, of the city of St. Louis, on November 13,1878, for a term of twenty-five years, to the late Cerard B. Allen, under whose will the appellants are the testamentary trustees. The original term of twenty-five years having expired, and the right to a renewal reserved in the original lease having been perfected by proper notice by appellants, the respondent tendered a renewal lease for a further term of twenty-five years without any covenant of further renetoal. Appellants refused to accept this renewal lease as a performance of the renewal covenant' in the original lease, and therefore this proceeding is in effect for a specific performance of the covenant of renewal reserved in the original lease of November, 1878, and involves the construction of that covenant.

“The lease in question was drawn on one of the printed forms used by the respondent which was made [544]*544to suit the particular case by cancellation of various parts and writing in the blank spaces of the printed form. The covenant of renewal as set forth in the agreed statement of facts is as follows:

“ ‘And it is covenanted and agreed, by and between the said parties, that at the end of the term hereby demised, this lease shall be renewable at the option of said parties of the second part, their executors, administrators or assigns; the said party of the second part, their executors, administrators or assigns, giving to the party of the first part, in every instance, a notice in writing of their wish to renew the same, at least three months before the end of the term, and in case of failure to give such notice, the said parties of the second part shall be entitled to no further renewal of this lease or of the terms thereby created. And every renewal lease shall contain all the covenants, agreements, clauses and stipulations herein contained, with these exceptions only, that the covenants for renewal shall be in conformity with the foregoing provisions, and that the annual rents reserved on every renewal shall be six per centum upon the value of the demised premises, exclusive only of improvements placed thereon by said lessee or their legal representatives, if any, which value shall be estimated by two disinterested freeholders,’ etc.

“Respondent conceded that under this covenant appellants were entitled to a renewal lease for twenty-five years, commencing November 7, 1903, but denied the right of appellants to have inserted in said renewal lease any clause whatever relating to a further renewal of the lease. Respondent, therefore, tendered to- appellants a lease, being ‘Exhibit C,’ as filed with the agreed statement, and claims that the same was a full compliance with the covenant of renewal. Appellants refused to accept this, and demanded- a lease with a covenenat for one further renewal, and this [545]*545proceeding was' brought for the adjustment of this difference. The circuit court held that the appellants were only entitled to the lease tendered, that is, to a renewal lease for them of twenty-five years with no covenant for further renewal, and entered judgment accordingly. Appeal was duly perfected.”

Appellants present the following assignment of errors, to-wit:

‘ ‘ 1. The lower court erred in holding that appellants are entitled only to a new lease for twenty-five years commencing November 7, 1903, without further renewal. Said new lease should itself be renewable for at least one more like term, in accordance with the express provisions of the original lease.

“2. The lower court erred in giving no effect whatever to the following express words occurring right in the covenant for renewal of the original lease here sued upon, specifying what sort of covenant of renewal (actually naming that covenant) shall go into the new lease, to-wit: ‘The covenant for renewal shall be in conformity with the foregoing provisions.’ (The said ‘foregoing provisions’ here referred to being provisions relating to the sort of notice to be given in case of renewal.) ”

I. In the consideration of this case it should be constantly borne in mind, as stated by this court in the case of Diffenderfer v. Board of Public Schools, 120 Mo. 454 and 455, that a renewal of the lease for all time to come is to create a perpetuity, which is against the policy of the law and which it does not favor; and it is further stated that “unless it appears from the covenant in the lease, by express terms or clearly by implication, that plaintiffs are entitled to have the lease renewed for all time to come, a court of equity will not decree specific performance of the covenant for that purpose.”

[546]*546The respondent does not deny the right of the appellants to have one renewal of the lease, but does contend that they are not entitled to have inserted in that renewal a covenant for any additional renewal. This contention of the respondent is denied by appellants, and they insist that nnder the express provisions of the lease they are entitled to at least two, if not perpetual renewals, that is to say, they are entitled to the renewal conceded by respondents, and have the right to have inserted in the new lease-a covenant for at least one other renewal.

Appellants base their claim to that right upon the following provisions contained in the original lease, to-wit: “And it is covenanted and agreed by and between the said parties that at the end of the term hereby demised this lease shall be renewable at the option of said parties of the second part, their .executors, etc. The said party of the second part, their executors, etc., giving to the party of the first part, in every instance, a notice in writing of their wish to renew the same, etc,, and in case of failure to give such notice, the said parties of the second part shall be entitled to no further renewal of this lease or of the terms hereby created. And every renewed lease shall contain all the covenants, agreements, clauses and stipulations herein contained, with these exceptions only, that the covenants for renewal shall be in conformity with the foregoing provisions,” etc. Prom this it is argued by appellants that they would be .entitled to one renewal by the use of the general words, “this lease shall be renewable,” found in the first clause of the paragraph of the lease above quoted, even though no other language regarding renewals. had been found therein.

And they further contend that by the insertion of the following additional covenant or agreement in the lease, to-wit: “in every instance a notice, -etc., and every renewed lease shall contain all the covenants, agree[547]*547ments, clauses aud stipulations herein contained, with these exceptions only, that the covenants for renewal shall be in conformity with the foregoing provisions,” etc., just after the general covenant above mentioned, shows that it was in the minds of the parties and that it was their intention and understanding that more than one renewal was provided for.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

West 39th Street, LLC v. Lina, LLC
Missouri Court of Appeals, 2024
K.C. Air Cargo Services, Inc. v. City of Kansas City
523 S.W.3d 1 (Missouri Court of Appeals, 2017)
Bleecker Street Tenants Corp. v. Bleeker Jones LLC
945 N.E.2d 484 (New York Court of Appeals, 2011)
Kilbourne v. Forester
464 S.W.2d 770 (Missouri Court of Appeals, 1970)
Krug v. Deering Implement Co.
30 N.W.2d 729 (Supreme Court of Iowa, 1948)
Lawson v. West Virginia Newspaper Publishing Co.
29 S.E.2d 3 (West Virginia Supreme Court, 1944)
Alabama Butane Gas Co. v. Tarrant Land Co.
15 So. 2d 105 (Supreme Court of Alabama, 1943)
Tipton v. North
1939 OK 278 (Supreme Court of Oklahoma, 1939)
Gray v. Stadler
280 N.W. 675 (Wisconsin Supreme Court, 1938)
Brummitt Tire Co. v. Sinclair Refining Co.
75 S.W.2d 1022 (Court of Appeals of Tennessee, 1934)
Pickrell v. Buckler
293 S.W. 667 (Court of Appeals of Texas, 1927)
Indian Head Mills v. Hamilton
101 So. 747 (Supreme Court of Alabama, 1924)
Gould v. Harley
183 N.W. 705 (Michigan Supreme Court, 1921)
Powell v. Cone
160 N.W. 959 (Nebraska Supreme Court, 1916)
Burns v. . City of New York
108 N.E. 77 (New York Court of Appeals, 1915)
Thaw v. Gaffney
83 S.E. 983 (West Virginia Supreme Court, 1914)

Cite This Page — Counsel Stack

Bluebook (online)
106 S.W. 650, 208 Mo. 540, 1907 Mo. LEXIS 262, Counsel Stack Legal Research, https://law.counselstack.com/opinion/drake-v-board-of-education-mo-1907.