Ver Steeg v. Becker-Moore Paint Co.

80 S.W. 346, 106 Mo. App. 257, 1904 Mo. App. LEXIS 349

• Court: Missouri Court of Appeals
• Decided: April 12, 1904
• Status: Published

Opinion

GOODE, J.

(after stating the facts.) — 1. Respondent was rightly permitted to amend his complaint so as to increase the amount of damages prayed for the detention of the property and the sum averred as the monthly rent. This was ruled in previous decisions to which we adhere. Elliot v. Abell, 39 Mo. App. 346; Champ Spring Co. v. Roth Tool Co., 96 Mo. App. 523.

2. The proposition that the amendment in the circuit court terminated the jurisdiction of that court because the complaint was not verified afterwards, is unsound. By virtue of the statute a justice of the peace has no power to'issue a summons to a defendant in an unlawful detainer action until a verified complaint is filed, describing the tenements unlawfully detained, and stating by whom, and when they were detained. R. S. 1899, sec. 3224; Fletcher v. Keyte, 66 Mo. 285; Riley v. Powell, 34 Mo. App. 431; Tegler v. Mitchell, 46 Mo. App. 349; Wiltshire v. Triplett, 71 Mo. App. 332. The statutes do not prescribe that the amount of damages or the value of the rents shall he stated under oath as a prerequisite to jurisdiction; and generally the ad damnum clause of a petition may be amended without altering the issues tendered by it. It follows, therefore, that as the original complaint was sworn to and the justice had jurisdiction of the cause, .the appeal gave the circuit court jurisdiction. If it is conceded for argument’s sake that the amendment was a nullity, the case still stood on the original complaint and the appellant might have objected to a recovery beyond the amounts originally stated as the damages and the value of the rent. But that point was not raised, and in fact no exception was taken to the amendment. Nevertheless, if the circuit court had been deprived of jurisdiction the point would be available now; but the .amendment worked no such result.

3. The facts do not sustain the proposition that the appellant’s tenancy, if it was a month to month one, ran from the sixth day of each month to the same day of the ensuing month. The argument is that as the appellant did not obtain possession if the entire premises until February 6, 1902, and it was agreed the rent should begin when complete possession was obtained, the term "ran from and to the sixth day of each month instead of the first. But $66.65 were paid for the rent for the fraction of the month of February during which appellant occupied the premises, and thereafter the rent was paid monthly as it accrued on the first day of every month. Immediately after the February, 1902, rent was paid, the first rent for a full month, which had been paid in November, 1901, was by agreement, devoted to discharging the rent for the month of March, 1902, as no rent had accrued prior to February because complete possession of the buildings had not been obtained by the paint company. Both prior and subsequent to said company’s occupancy, the parties treated the rent as due on the first day of each month and the monthly term as running from that- day. It is said in Taylor on Landlord and Tenant (4 Ed.) sec. 69, that “if a tenant enters in the middle of a quarter and afterwards pays rent to the beginning of the succeeding quarter and thereafter pays half-yearly, his tenancy will be deemed to commence from the quarter date to which he paid .¡up;” citing Doe v. Johnson, 6 Esp. 10. See also Wood, Landlord & Tenant, sec. 34, and Tyng v. Theo. Sem., 14 Jones & Spencer 250.

4. This case was tried on the assumption that the rights of the respective parties to possession of the tenements in controversy depended exclusively on whether or not a contract of lease was consummated between the Edmund Company and the paint company; which, in turn, depended on whether the memoranda dated March 13,1902, purporting to vest a leasehold in the paint company, were agreed to by the Edmund Company after the alterations in the original drafts had been inserted by the paint company. It will be seen from the statement that the appellant asserts those memoranda were twice delivered to it by the Rutledge & Kilpatrick Company as agents of the Edmund Company; first without alterations and afterwards with them; whereas the respondent contends they were only delivered once and then without the alterations, and were thereafter retained by the appellant but never accepted or signed until respondent’s contract for the purchase of the premises had been recorded. After calling the jury’s attention to those opposed positions of the parties, the trial court concluded an instruction, given at the instance of the plaintiff, with this paragraph which illustrates the theory adopted at the trial: “The controversy in the case, therefore, is as to whether or not the lease in its present shape was delivered by the plaintiff to the defendant and accepted by the defendant, and treated by the parties as a subsisting lease. This is a question of fact for you to decide under the evidence and instructions of the court.” The principal assignment of error on this appeal is that the circuit court misconceived the case in adhering to the theory thus expressed, for the reason that the document designated as “Exhibit G-,” together with the payment of the first month’s rent by the paint company in November and its occupancy of the premises, constituted a lease and gave it the right to retain the premises for the term mentioned in said document, regardless of the completion of the contract of March 13, 1902. Appellant’s position is that said document (Exhibit G-) contained words of present demise and, therefore, when appellant took possession and paid rent, became operative .as a lease, but looked to the execution of a more formal instrument in the future as further assurance to the appellant merely, ‘and not as a prerequisite to vesting it with a valid leasehold. The decision of this question turns on the intention of the parties, to he gathered from the document itself, if possible; otherwise, from correlated documents and the conduct of the parties. Western Shoe Co. v. Gannon, 50 Mo. App. 642; St. Louis etc. Assn. v. Niederleucke, 76 S. W. 645; 1 McAdam, Landlord & Tenant, sec. 58. Words of present demise are construed to give a lease if no inconsistent purpose appears. 1 Taylor, Landlord & Tenant (4 Ed.), sec. 39 et seq. The paramount consideration is the intention of the parties, which fixes the construction to be put on the instrumént. The words “agree to let,” and similar phrases, have been held to confer a leasehold though a further writing or memorandum was called for in the document wherein those words were used. Doe v. Benjamin, 9 A. E. 644; Jackson v. Kisselbrack, 10 John. (N. Y.) 336. In the case last cited the words were that the lessor “hath set and to farm let, ’ ’ and the paper set forth explicitly the terms of the letting. In Western Shoe Co. v. Gannon, supra, the words were “hereby agree to lease,” etc., setting out fully the terms.

The instrument we are to construe reads: “It is agreed that a lease will be given to Wm. E. Becker et al., or their assigns for five years,” etc. Those are not words of present demise; and, moreover, no date, either definite or contingent, was fixed for the commencement of the term. Certainly we can not construe the document on its face to be a lease, and must look beyond it for facts to justify that construction; and when we look beyond, we must take all relevant facts into consideration. Said document followed a proposition in writing which W. E. Becker submitted to the Rutledge & Kilpatrick Company as agent of the Edmund Company, November 19,1901, in which he offered to take a lease on the premises in controversy for five years with privilege of renewal for another five years, the rent to be $1,000 a year for the first three years and $900 for the remaining two years of the original term, and $900 a year if there was a renewal. The instrument relied on as a lease, instead of accepting that proposition, submitted a different one, viz. ; to give a lease to ¥m. E. Becker et al., or assigns, for five years, at $1,000 per annum for the first two years and $1,200 per annum for the next three years. That proposition was unlike the first one in the rent to be charged and in granting no renewal privilege. Comparing those two writings with the more formal writings of March 13, 1902, which were agreed to except as to the disputed alterations, we find the last documents provided for a lease for three years from January 1, 1902, at a rent of $1,000 per annum for the first two years payable in monthly installments, and $1,200 for the third year, with privilege of renewal for two more years at a rental of $1,200 per annum. It is thus seen that the terms finally agreed to by the parties are unlike those submitted in their respective proposi■t-ions; showing that previously no certain and binding agreement for a lease had been reached. The lease proper can not be regarded as a further assurance of the lease claimed by virtue of Exhibit Gl. because its terms are essentially different, and if assented to by both parties, as appellant says, amounted to an abandonment of the alleged prior lease. Two leases of the same tenement, binding the same parties by contradictory covenants, can not coexist. In this connection we call attention to the purpose for which Exhibit Gl. was offered in ■•evidence, as declared by appellant’s counsel in the remarks quoted in the statement. Those remarks show that the instrument now brought forward as conferring a lease and was not relied on as such at the trial; but was offered to elucidate the rights of the parties under the contract of Marc hl3th, as being a step in the negotiations that ended in that contract and in authority to the appellant to take possession of the premises. Viewed in any light the facts cast on it, we must hold Exhibit Gl. was not a lease nor an agreement of any kind; but a counter-proposition to the one submitted by the appellant in the letter of November 19th..

It follows that the court below did not err in excluding said exhibit and cognate papers from the consideration of the jury. Appellant’s counsel rightly urged that the document operated as a license to his client, or its assignor, Wm. E. Becker, to enter the premises; but no unlawful entry was asserted, and therefore, no proof was needed to justify it. If the terms proposed had-been accepted, the appellant, as assignee in possession, might have filed a bill to compel the execution of a lease conforming to them. 1 Taylor, sec. 37. But an agreement to give a lease of lands or tenements is not a defense to an action of unlawful detainer; because the right of the promisee to possession under such an agreement, is of an equitable character and can not be enforced by a justice of the peace. Ridgley v. Stillwell, 28 Mo. 400; Finney v. Cist, 34 Mo. 303.

5. Interpreting Exhibit Gr not to be a lease, but only-an agreement for one, we must hold the trial court did not err in excluding testimony that appellant had spent money improving the premises. This testimony was offered to estop the respondent from denying the authority of the Eutledge & Kilpatrick Company to execute -the instrument, and would be worthy of consideration if the instrument was intended as a lease; but as we hold that was not its intention, appellant became a tenant from month to month and made the improvements at its peril.

6. The main defense pleaded an issue of fact-which was concluded by the verdict of the jury if they were properly instructed and no error was committed in the rulings on evidence at the trial of the issue. It is insisted there was no substantial testimony in opposition to that of Mr. Wm.E. Becker regarding the delivery of the lease memoranda; that is to say, his testimony that he first got them at the office of the Eutledge & Kilpatrick Company, afterwards made two interlineations, took them hack to said company, called the attention of one of its officers (Mr. Rntledge) to the interlineations and thereafter received the leases by mail. Suffice to say as to this testimony that it was contradicted by Bakewell and Rutledge. Their version, which has been already stated in' substance, was that the leases were sent in an envelope with the letter of March 15th to the paint company without these interlineations, and were retained by the paint company after Becker had refused to comply with several demands to sign and accept them, assigning as a reason for his action, that his company might not want to retain the premises long and in consequence might desire a lease for a briefer term.

7. It-is now urged that the alterations in the lease memoranda after their delivery to the paint company, were immaterial and had no effect except to prevent the defendant from bringing an action on the covenants of the lease. In support of this proposition we are cited to these cases: Wood v. Hilderbrand, 46 Mo. 284; Burnett v. McCluey, 78 Mo. 676; Lumber Co. v. Tie Co., 89 Mo. App. 556. Two of those cases merely held that an alteration in the description of one tract of land in a deed after its delivery, did not affect its validity as a conveyance of other tracts, nor revest the title in the grantor. The lumber company case held the insertion in a tax deed, after delivery, of the name of a person as owner of the land who did not own it, did not destroy the validity of the instrument as a conveyance of the title of the true owners. Those decisions are not in point. The question in hand is to be decided by other legal principles. That question is whether the parties to the proposed lease ever agreed, as lessor and lessee, to the terms on which the property should be let: did their minds meet? 'Nowit is plain that if the version of the facts given by the witnesses for the respondent is true, their minds did not meet. The Edmund Realty Company signed the instruments creating a leasehold for three years with certain terms. Those instruments were delivered to the intending lessee, which made two alterations of a self-serving character, one according it the privilege of subletting and the other binding the lessor to keep an alley in repair. That the alterations had been made was not communicated to the lessor. The lessee declined to accept the lease on the terms provided in the instruments transmitted to it. The terms if accepted would have created a contract of a certain character; but modifications were inserted which, in law, were tantamount to a rejection of the proposed contract and required the assent, in turn, of the lessor, for a contract to be formed. Shickle v. Iron Co., 10 Mo. App. 241; Tufts v. Sams, 47 Mo. App. 487; Robertson v. Tapley, 48 Mo. App. 239; Powell v. Banks, 146 Mo. 632.

We have been stating the facts in accordance with the testimony of the respondent. That for the appellant was otherwise and showed a completed agreement; but the jury found a verdict for the respondent and must have accepted as true its version that no contract was made.

8. Complaint is made of an instruction given by the court, for mentioning March 15-, 1903, as the date of the delivery of the leases. The court did not assume in the instruction that the leases were delivered that day, but simply said the respondent asserted they were; which was true. But the appellant contends there was no evidence that they were delivered on that date and argues the proposition. Bakewell testified positively they were sent on that day and there was plenty of evidence to justify mentioning the date as the one relied on by the respondent. Much of the reasoning on this branch of the case is devoted to an attempt to prove that all the substantial evidence in regard to the delivery was in favor of the appellant’s position; but, in our opinion, the record refutes the argument.

9. The court instructed that for the lease to be' valid, the evidence must show it was not only tendered by tbe Edmund Company, but accepted by the paint company, and that if tbe jury found tbe former demanded of the latter that it sign and deliver back one copy of the lease and the paint company refused to accept said lease and refused to sign it so as to make it effective, then the lease was void, though signed by the lessor, because of its non-acceptance by the lessee. That said instruction is sound generally speaking, is conceded ; but it is attacked in this case for the reason, as appellant insists, that the Edmund Company afterwards got one of the instruments, signed by the paint company and containing all the interlineations, which circumstance estopped the Edmund Company and Ver Steeg, its grantee, from denying the validity of the lease. That memorandum or draft was procured in August, 1902, after the two drafts had been delivered to the appellant and after it had refused to accept the terms'they contained. It was procured merely to copy, according to the testimony for the respondent. If those were the facts connected with its possession of the altered instrument, the Edmund Company was not estopped. If the appellant wished to assert an estoppel, it -should have presented an instruction in proper form, leaving it to the jury to find whether the necessary facts existed.

10. Appellant’s theory in regard to this case was fully recognized in various instructions given to the jury of which one will be quoted:

“If you find from the evidence that the Edmund Realty Company executed the lease offered in evidence in duplicate and delivered same into the possession of defendant and that thereafter the defendant returned said copies of the lease to the realty company with corrections and interlineations therein, and that thereafter the Edmund Realty Company redelivered said copies of the lease as corrected to defendant as and for a lease of the premises, and thát defendant accepted the copies as such, and that rent was paid and accepted with the understanding by both parties that the lease was in full force and effect, then the defendant was entitled to retain possession and you should find for the defendant. ’ ’

Besides that instruction, the court told the jury the question for them to decide was whether or not the lease in its present shape was delivered to the defendant, accepted by it and treated by the parties as a subsisting lease. Suffice to say, as to the given instructions, that they are too numerous and long to be transcribed, but we find no cause to criticise them. Those requested by the appellant and refused, either embodied defenses which ought not to have been recognized or were covered by the given instructions.

11. It is assigned for error that the court admitted in evidence the letter of March 15th, written by the Rutledge & Kilpatrick Company. The basis of this assignment is that Bakewell testified he inclosed the leases in an envelope with that letter and sent it either by mail or messenger; thus leaving it uncertain whether it went by mail or not, and as he did not testify that he properly addressed and stamped it there was no presumption that it was received. Whether the letter was competent or not, we have been -unable to perceive wherein it could have been prejudicial. It speaks of the lease papers as inclosed; but the fact that the appellant got those papers is not disputed, and whether it got them with the letter or Becker got them at the office of the Rutledge & Kilpatrick Company, is of no consequence. It was a conceded fact that the alterations were inserted after their delivery and the essential question was as to the Edmund Realty Company’s subsequent assent to the alterations. Appellant labored to show the contents of that letter were inconsistent with those of the letter of March 19th, in that both spoke of sending a bill for rent. The letter of the fifteenth speaks of the rent for the month of March, and that of the nineteenth of the- rent for February. The court did not direct the jury to find the delivery of the lease papers was on March 15th, “with this letter,” and based on the presumptive delivery of the letter. It merely stated the leases were sent with the request that they be signed and returned. Certainly that was the purpose for which they were delivered to the appellant in whatever mode the delivery occurred. In any aspect of the matter we can not see how the admission of the letter of March 15th did harm and decline to reverse the judgment on that account.

12. It is said the court made comments during the trial in the hearing of the jury adverse to the interest of the defense. No objection was made nor exception saved to any remark of the court.

13. Complaint is made of the exclusion of the testimony of a witness by the name of Rettelack. It was sought to prove by Rettelack that he was president of the mattress factory which occupied part of the premises of the Edmund Company, and that in March, 1902, there was no difficulty in securing insurance on the building on account of the mattress factory being in it. That testimony was wholly irrelevant. Rutledge swore he might have told Becker the insurance was cancelled on the building occupied by the mattress factory, but swore, too, that he did not refuse to deliver the leases on that account, as Becker said he did. The only effect of Rettelack’s testimony would have been to contradict-Rutledge on an immaterial point. It was properly excluded.

14. The verdict as first returned assessed respondent’s damages at $1. The court refused to accept that verdict and the jury retired and brought in a second verdict fixing the damages at $900. The jury plainly misapprehended the instruction in regard to the allowance of damages, for on no view of the evidence, could the respondent be entitled to only nominal damages. His recovery of damages, if he obtained a verdict, was bound to be the amount of -the rent from May 1st, when possession was demanded, to the time of the verdict, and the court so directed. The verdict was returned the thirty-first day of October, six months from the demand for possession. As the value of the monthly rents was fixed at $150, respondent was entitled to $900. The error committed by the jury may be treated as an informality due to a misunderstanding of the law, and the court rightly afforded them an opportunity to correct it and thereby avoid the expense of another trial. Fathman v. Tumility, 34 Mo. App. 236; Long v. Talley, 91 Mo. 305; Warner v. Railway, 52 N. Y. 400; Goodman v. Appleton, 22 Mo. 458. The amount of damages first assessed was inconsistent with the finding that the value of the monthly rent was $150.

As the counsel in this case carefully prepared it for our consideration, we felt it incumbent on us to study attentively the various points raised .against the propriety of the judgment, and have noticed them all, we believe, in the opinion.

The judgment is affirmed.

Blmd, P. J., and Bey-burn, J., concur.