Underwood Typewriter Co. v. Century Realty Co.

• Decision Date: 07 May 1912
• Citation: 146 S.W. 448
• Parties: UNDERWOOD TYPEWRITER CO. v. CENTURY REALTY CO.
• Court: Missouri Court of Appeals

146 S.W. 448

UNDERWOOD TYPEWRITER CO. v. CENTURY REALTY CO.

St. Louis Court of Appeals. Missouri.

May 7, 1912.

1. PRINCIPAL AND AGENT (§ 100)—IMPLIED AND APPARENT AUTHORITY.

The owner of the C. building appointed a trust company as its attorney in fact, and this trust company appointed an agent to have general charge of the building. The agent for several years had an office in the building, on which was the sign, "C. Building Company Office or Agents of C. Building," collected the rents, received complaints, made repairs, and had general charge of the building. Held, that whether the trust company, under the power of attorney, had power to appoint an agent and confer authority on it to indorse on a lease a consent to a subletting, the owner of the building had conferred apparent authority on the agent to give such consent; and hence, for a failure to carry out an agreement by the agent that such consent would be given when an acceptable tenant was found, the owner was liable.

2. PRINCIPAL AND AGENT (§ 100)—IMPLIED AND APPARENT AUTHORITY.

Although an agent with authority only to collect rents has no apparent authority to execute leases or indorsements thereon, a general agent of the landlord, who, besides collecting the rent, receives complaints, makes repairs, and has general supervision of the building, has such implied authority, in the absence of notice of limitations on his authority.

3. PRINCIPAL AND AGENT (§ 99)—IMPLIED AND APPARENT AUTHORITY.

As to third persons dealing with an agent, the principal is bound to the extent of the apparent authority conferred on the agent, and not by the actual or express authority only, where that differs from the apparent authority.

4. LANDLORD AND TENANT (§ 76)—BREACH OF AGREEMENT FOR SUBLETTING—LOSS OF PROFITS.

Where an agreement by a landlord to consent to a subletting, if an acceptable subtenant was found, was broken by him for no other reason than because he was unwilling to comply with the agreement, the defendant was entitled to recover the loss of his bargain; and the measure of damages was the difference between the rent which the tenant had agreed to pay and the amount which he would have received from the subtenant.

5. DAMAGES (§ 68)—BREACH OF CONTRACT—INTEREST.

In an action for breach of contract, where loss of profits is sought to be recovered, plaintiffs cannot recover interest on such profits.

Appeal from St. Louis Circuit Court; Daniel D. Fisher, Judge.

Action by the Underwood Typewriter Company against the Century Realty Company. From a judgment for plaintiff, defendant appeals. Affirmed conditionally.

See, also, 220 Mo. 522, 119 S. W. 400, 25 L. R. A. (N. S.) 1173.

Dawson & Garvin, of St. Louis, for appellant. John B. Denvir, Jr., Carter & Sager, and Carter, Collins, Jones & Barker, all of St. Louis, for respondent.

NORTONI, J.

This is a suit for damages accrued on account of a breach of contract. Plaintiff recovered, and defendant prosecutes the appeal.

Plaintiff was the tenant of defendant, and as such occupied room No. 309, Century building, North Ninth street, St. Louis, under a written lease for a term of five years, commencing February 1, 1901, and expiring February 1, 1906. Because of the increment of its business, plaintiff desired to vacate the premises and obtain larger quarters; but by the terms of the lease it was forbidden to underlet the same to another. However, plaintiff's manager called upon defendant's agent, McCormick-Kilgen-Rule Real Estate Company, and, after having stated the facts in connection with its desire to vacate the premises, solicited permission to underlet the same. Plaintiff requested defendant to indorse on its lease, in writing, the privilege of subletting the premises. In answer to this request, defendant's agent wrote plaintiff as follows:

                                        "July 7th, 1903
                

"Underwood Typewriter Company—Gentlemen: Replying to yours of July 6th, we cannot give you a general permission to sub-let the store now occupied by you, but when you have a prospective tenant and submit the name to us, if the tenant is satisfactory and acceptable, we will then give you the written consent. Yours very truly, [Signed] McCormick-Kilgen-Rule Real Estate Co., by A. O. Rule, President."

From this letter, it appears that defendant agreed to give written consent for a sublease upon plaintiff's procuring a tenant for the premises who should be satisfactory and acceptable to it. Relying on this promise, plaintiff expended time, labor, and money in procuring a satisfactory and acceptable tenant for defendant. It finally succeeded in interesting the Booklovers' Library in the premises. The Booklovers' Library agreed to occupy the room, No. 309, North Ninth street, as the undertenant of plaintiff during the remainder of its term at a considerable increase in rent over that which plaintiff was then paying. Besides the increase in monthly rental which plaintiff was to receive from the Booklovers' Library over the amount it was required to pay to defendant, under its lease, the Booklovers' Library agreed to pay plaintiff a bonus of $500 as additional compensation for the privilege.

For plaintiff, the evidence tends to prove that it submitted the name of the Booklovers' Library to defendant's agent as a prospective tenant to whom it desired to underlease the premises, and defendant's agent agreed that the Booklovers' Library was both satisfactory and acceptable as a tenant. Indeed, it appears that the president of the McCormick-Kilgen-Rule Real Estate Company, agent for defendant, had his pen in hand, and was in the very act of indorsing consent on the lease for the underletting, when he learned that under the arrangement plaintiff was to receive a bonus of $500 from the Booklovers' Library for the privilege. Learning this through a remark made at the time by the manager of the Booklovers' Library, the president of the real estate company laid down his pen and declined to indorse the consent for subletting, unless the $500 bonus was paid to him. Upon plaintiff's declining to permit the payment of such bonus to defendant's agent, the agent utterly refused to indorse defendant's consent upon the lease for the underletting of the premises, and this, too, though the Booklovers' Library was in all respects satisfactory and acceptable as a tenant. Through such refusal, plaintiff's efforts to sublet the premises were defeated, and in consequence thereof it suffered the loss of the $500 bonus and the monthly increase in rent as well, for which it had arranged with the Booklovers' Library.

On demurrer to the petition in this same case, both this court and the Supreme Court have heretofore declared that plaintiff was entitled to recover from defendant for its breach of contract touching the matter of indorsing consent on the lease for a subletting of the premises upon showing the facts, above stated, to the satisfaction of the jury. See Underwood Typewriter Co. v. Century, 118 Mo. App. 197, 94 S. W. 787. The question thus determined is concluded for the purpose of the case, and the present appeal presents but three propositions which merit consideration in the opinion. The first of these relates to the sufficiency of the proof with respect to the agency of the McCormick-Kilgen-Rule Real Estate Company to bind defendant, and the second pertains to the measure of damages, if any. The third touches upon an excessive recovery.

It is argued the court should have directed a verdict for defendant, because there is a dearth of evidence that the McCormick-Kilgen-Rule Real Estate Company was the agent of defendant for the purpose of granting permission for a subletting of the premises. It appears the Century...