Midland Realty Company v. Manzella

308 S.W.2d 326, 1957 Mo. App. LEXIS 515
CourtMissouri Court of Appeals
DecidedDecember 2, 1957
Docket22661
StatusPublished
Cited by10 cases

This text of 308 S.W.2d 326 (Midland Realty Company v. Manzella) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Midland Realty Company v. Manzella, 308 S.W.2d 326, 1957 Mo. App. LEXIS 515 (Mo. Ct. App. 1957).

Opinion

HUNTER, Judge.

This is an appeal from a judgment of the Circuit Court of Jackson County for defendant in an unlawful detainer action brought by Midland Realty Company, plaintiff-appellant, against Thomas Manzella, defendant-respondent, for detention damages and possession of certain premises known as 315 and 317 East Tenth Street, Kansas City, Missouri, wherein were located the Jungle Club, a restaurant, and a parking lot.

Midland Realty Company, referred to herein as Midland, is a family owned corporation, and for over twenty years Mervin Cies, has been its president and director, his wife and brother-in-law being the other two shareholders. For a number of years prior to January 31, 1956, this corporation had leased the premises to Thomas Manzel-la by various written leases.

In August, 1941, Midland by written agreement employed M. W. Major, referred *328 to herein as Major, a Kansas City realtor of many years’ experience, to collect the rents and to inspect and report repairs and replacements needed on certain of its properties including the leased premises involved herein. This agreement provided in part “ * * * It is understood and agreed that (Major) shall have no authority or right to lease any of said property but shall forward all applications therefor to First Party” (Midland).

As of January, 1951, Midland and Man-zella entered into a five year written lease of the premises. This lease is in evidence. It was prepared by Major in duplicate and delivered to Manzella for his signature. After being signed by Manzella in duplicate both copies were forwarded to Cies who signed them as president of plaintiff company. Thereafter, one signed copy was re-.turncd to Manzella. This lease contained many of the usual terms of a business lease, and provided for a total rental of $42,000 payable at the rate of $700 per month at the office of M. W. Major, Inc. By its terms, it commenced February 1, 1951, and expired January 31, 1956. It also provided that: “Lessee has the privilege of subleasing any of the leased premises, providing the prospective sublessee is acceptable to Lessor” and that; this lease, “may not be assigned or transferred to others without the written consent of the Lessor.”

As the termination date of this five year lease approached, Major, Manzella, and Midland, through its president Cies, exchanged correspondence and a so-called renewal lease, which respondent claims considered together, form a valid and binding lease that meets all the requirements o± the applicable Statute of Frauds. Section 432.-050 RSMo 1949, V.A.M.S. Appellant claims this correspondence and document did not result in a valid lease. Thus, we proceed to set out and examine the correspondence and “renewal lease” in some detail.

Under date of September 13, 1955, Major wrote Cies, who resided in Chillicothe, Missouri :

“Enclosed is the credit report, as requested, on Thomas Manzella.
“We have done nothing further concerning the lease, as Mr. Manzella has either been out of the City, or unable to be reached since talking with him last week.”

On October 11, 1955, Cies wrote Major

“In reply to your letter of October 4, regarding the signing of the lease for five years with Manzella, wish to advise that it will be satisfactory to renew it for the five year period at $1,000 per month.
“I am not extremely particular about the lease as it appears we are the only ones obligated. His net worth is very small, but not much smaller than I had expected, but if he is willing to sign it, we will accept it.”

On October 13, 1955, Major wrote Man zella:

“Your new lease is in our office, ready for your signature.
“I would like to know why the bill to the Fox Construction Company for the work on the Oak Street entrance to the parking station has not been paid. The Fox Construction Company talked with us today and advised us that they have not received payment from you. Since we instructed the Fox Company to widen the entrance to the parking station upon the authority of Mr. Rich, and with the distinct understanding that this job was to be paid for by the parties interested in your lease, we nevertheless feel embarrassed that this bill has not been paid.
“Will appreciate your advice on this matter by return mail.”

On November 5, 1955, Cies wrote Major

“This is to advise you that if Mr. Manzella wants the property that he has under lease, it will be necessary for me to have a letter to this effect *329 by the 21st of this month, otherwise I am going ahead with the other people that want the lease. It would be much better for me anyway.
“Also, I would like for you to inform Mr. Manzella that we cannot accept ■ the lease until he has paid the H. H. Fox Construction Company bill for their part of the widening to the approach. Also, that the offer for a five year lease at $1,000 per month will not be good unless it is signed as I have specified above.”

On November 7, 1955, Major wrote Manzella:

“We have received a letter, today, from Mr. Cies stating that unless you will complete the lease transaction concerning your Jungle Club property by the 21st of this month, he intends to go ahead and let the other parties have the lease. Mr. Cies also instructs us not to go ahead with this lease until the H. H. Fox Construction Company has been paid for the parking station driveway work.
“If you will recall we wrote you on October 13th advising you that the new lease was in our office ready for your signature, and since then we met Mr. Rich on the street and he said you would be in to sign the lease within the next few days.”

Major, who at the time of the trial was no longer an employee of Midland, testified that Manzella came to his office on Friday, November 18, 1955, and looked over the “new lease” (which is in evidence) he had previously prepared, but did not sign it on that date. Instead, Manzella requested him to come to his office at the American Cab Company the following Monday, November 21, 1955, about it. However, he (Major) could not go to Manzella’s office on Monday but went there on Tuesday, November 22, 1955. At that time Manzella signed two copies of the “new lease”, kept one, and handed the other to Major. Later Major destroyed this copy because “it wasn’t dated, it wasn’t proper.” Cies testified he never saw the destroyed copy, nor any copy until he saw Manzella’s at the trial.

Manzella testified that he signed three copies of the “new lease” and handed two of them to Major in Major’s office on November 18, 1955. Manzella’s son testified that he was present when his father was in Major’s office on November 18, 1955. He was asked:

“Q. At the time you saw that in his office, at the time you saw that exhibit in Mr. Major’s office on the day of November 18, 1955, I will ask you whether or not that was signed or not signed ? A. My father’s signature was on there just like it is now.
“Q. Did you see your father come out of the private office of Mr.

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Bluebook (online)
308 S.W.2d 326, 1957 Mo. App. LEXIS 515, Counsel Stack Legal Research, https://law.counselstack.com/opinion/midland-realty-company-v-manzella-moctapp-1957.