Johnson v. Missouri-Kansas-Texas R. Co.

• Decision Date: 07 January 1949
• Docket Number: No. 40840.,40840.
• Parties: JOHNSON v. MISSOURI-KANSAS-TEXAS R. CO.
• Court: Missouri Supreme Court

216 S.W.2d 499

JOHNSON v. MISSOURI-KANSAS-TEXAS R. CO.

No. 40840.

Supreme Court of Missouri, Division No. 1.

January 7, 1949.

Appeal from Circuit Court, Boone County; W. M. Dinwiddie, Judge.

Action for breach of covenants of a lease by Harold E. Johnson, doing business as Nu-Way Lumber Company, against the Missouri-Kansas-Texas Railroad Company, a corporation. From a judgment of dismissal with prejudice, plaintiff appeals.

Affirmed.

William H. Becker, of Columbia (Clark, Boggs, Peterson & Becker, of Columbia, of counsel), for appellant.

Ralph L. Alexander, of Columbia (Alexander, Ausmus & Harris and Warren D. Welliver, all of Columbia, of counsel), for respondent.

DALTON, Commissioner.

Action for $8,000 damages for breach of certain alleged covenants of a lease. Defendant moved to dismiss on the ground that the petition failed to state a claim upon which relief could be granted. The motion was sustained, plaintiff refused to plead further and judgment of dismissal with prejudice was entered. Plaintiff has appealed.

It is contended that the court erred in sustaining the motion to dismiss, because the petition stated (1) "a cause of action for breach of the express and implied covenant to put the lessee in possession"; and (2) "a cause of action for breach of the implied covenant of power to demise."

The facts alleged in the petition are that on April 30, 1945, defendant leased to plaintiff for a term, as therein stated, certain described real estate in the City of Columbia, for the purpose of constructing a warehouse thereon. The term was to begin May 2, 1945, and, in consideration of the leasing, plaintiff agreed to pay rent to defendant in the sum of $27.00 per year, payable annually in advance, and to route freight shipments to and from the leased premises over defendant's railroad and connecting lines.

The terms and conditions of the lease were set out at some length and a copy of the lease was attached to the petition and made a part thereof as fully as if set out therein. Plaintiff alleged the payment of the rent and other compliance with the terms and conditions of the lease; that he was ready, willing and able to further comply therewith; that the lease was upon a printed form prepared and proferred by defendant; that plaintiff did not attempt to take possession of the premises until after October 1, 1945; that, when he sought a permit from the City of Columbia to build the warehouse, the city refused a permit on the ground that the described premises were a part of Water street in said city; and that the permit was not granted, the warehouse was not constructed and, because the premises were a part of a public street, plaintiff was never permitted to take possession of the described premises.

Other allegations are that, when the lease was made, executed and delivered, plaintiff did not know that defendant had no right to lease the premises; that defendant tendered back the rent paid by plaintiff and plaintiff refused to accept the tender; that defendant admitted in writing that it had no right to lease the described property; that the lease was not terminated prior to May 2, 1947; that plaintiff was never refused physical possession of the premises by defendant; that, prior to October 1, 1945, plaintiff made no formal demand for possession, but assumed he had the right to possession; that defendant never refused to permit plaintiff to take possession; that plaintiff was not prevented from taking possession by any overt act of defendant, but because the city refused to permit the plaintiff to take possession of the premises; that by reason of defendant's leasing the premises "without right to do so" and because of "defendant's wrongful failure to put plaintiff in possession" of the leased premises, plaintiff had been damaged (special damages were alleged); that the reasonable value of the use of the property leased for the period from May 2, 1945 to May 2, 1947 was $8,000; and that plaintiff had been damaged in the sum of $8,000 for which recovery was sought.

The allegations with reference to the specific covenants upon which the action is based are that "the defendant impliedly and expressly, through its authorized agent, agreed to put the plaintiff into possession of the leased premises"; and that "the defendant by making said lease impliedly covenanted that it had the power to lease the said premises."

A few provisions of the lease should be set out. The lease is written on a printed form entitled: "Industrial Lease." The lease provides: "* * * Article I. (1) In consideration of the rental hereinafter provided to be paid by lessee to lessor and of the covenants, agreements and undertakings of lessee, as hereinafter set forth, lessor hereby leases to lessee for a term beginning with the 2nd day of May, 1945, and ending, unless sooner terminated as hereinafter provided, with the expiration of thirty days after notice in writing shall be served by either party upon the other of a desire to terminate the same, the following described premises * * * (2) Lessor hereby gives and grants to lessee the right to erect, maintain and use * * * buildings and other structures * * * for the purposes for which the said premises are to be used hereunder. * * * Article II. Lessee undertakes and agrees: (1) To pay to lessor as rental for the use of said demised premises the sum of Twenty-seven and no/100 Dollars ($27.00) per annum, payable annually in advance, and in addition thereto a sum equal to 6 per cent per annum on all special taxes and assessments which may be assessed * * * (3) To use said premises for the purpose of warehouse * * * (9) To waive all right to question the validity of this lease or any of the terms or provisions hereof, or the right or power of lessor to execute and enforce the same, and to waive all right to claim damages in the event lessee shall be ejected from or required to surrender possession of the demised premises by reason of the failure of title of lessor or for other cause. * * * Article III. It is mutually agreed by and between the parties hereto as follows: * * * (8) This lease and all of the provisions herein contained shall be binding upon the parties hereto, their heirs, executors, administrators, successors and assigns * * *."

Our first concern in construing this lease must be to ascertain the intention of the parties from the instrument they have executed and to give effect to that intention. Missouri Athletic Ass'n v. Delk Inv. Corp., 323 Mo. 765, 20 S.W.2d 51, 54; Henry v. Excelsior Springs Mineral Water & Bottling Co., 277 Mo. 508, 211 S.W. 9, 10; Ritchie v. State Board of Agriculture, 219 Mo.App. 90, 266 S.W. 492, 494; 32 Am.Jur. 130, Sec. 127. Their intention is to be gathered from a consideration of the whole instrument. 51 C.J.S., Landlord and Tenant, § 232, P. 852. "All the covenants and clauses of the lease, if they are not inconsistent, must be read together and given effect to the end that the intention of the parties to the lease is thereby determined and effectuated." Jenkins v. John Taylor Dry Goods Co., 352 Mo. 660, 179 S.W.2d 54, 58.

The petition charged that defendant impliedly and expressly agreed to put plaintiff into possession of the leased premises and appellant refers to such as an "express and implied covenant," but a careful review of the provisions of the lease fails to disclose any such express covenant. Appellant points to no such provision in the lease, but refers to Section 1 of Article I and mentions that the term was to begin on May 2, 1945. We think that appellant relies on an implied covenant, since he argues that "the law justifies the implication of the two covenants sued on in this case," and he further says that the sole issue seems to be whether Section 9 of Article II of the lease "expressly prevents implication of the implied covenant to deliver possession and of the implied covenant of power to demise"; and that, if either covenant may be implied, a cause of action exists.

"An implied covenant is one inferred or implied in law to effectuate the intention of the parties from the words used." 51 C.J.S., Landlord and Tenant, § 236, P. 864. "Implied covenants on the part of a lessor or a lessee may arise when there is a satisfactory basis in the express contract of the parties which makes it necessary to imply certain duties and obligations in order to effect the purposes of the parties to the contract made, but such covenants can be justified only upon the ground of legal necessity arising from the terms of a contract or the substance thereof." 32 Am.Jur. 145, Sec. 143; 14 Am.Jur. 490, Sec. 14. Certain implied covenants are well recognized in this state. "The general rule in Missouri and elsewhere is that an ordinary lease raises an implied covenant of quiet enjoyment of the leased premises as regards the lessor, one claiming under him, or one asserting title paramount to that of the lessor." Best v. Crown Drug Co., 8 Cir., 154 F.2d 736, 737; Jackson v. Eddy, 12 Mo. 209, 212; Maeder v. Carondelet, 26 Mo. 112, 115; Hamilton v. Wright's Adm'r, 28 Mo. 199, 205; Zinn v. Sidler, 268 Mo. 680, 187 S.W. 1172, 1174, L.R.A. 1917A, 455; Geer v. Boston Little Circle Zinc Co., 126 Mo.App. 173, 176, 103 S.W. 151; 32 Am.Jur. 252, Sec. 268; Annotation 62 A.L.R. 1257, 1262; 1 Tiffany, Landlord & Tenant, Chap. VIII, Sec. 79, p. 516. Of course such a covenant may not be implied, if there is an express covenant dealing with the same subject matter, or any expressed intention to the contrary. Maeder v. Carondelet, supra; Best v. Crown Drug Co., supra; 51 C.J.S., Landlord and Tenant, § 323, p. 1005; 32 Am.Jur. 252, Secs. 268, 269; 62 A.L.R. 1263 et seq; 1 Tiffany (1910) Landlord & Tenant, Sec. 79, p. 522.

While appellant refers to the implied covenant of quiet enjoyment in his brief, he expressly concedes that "this is not a suit to recover upon an implied covenant of quiet enjoyment." Both of the implied covenants sued on in this case...