Alexandria Billiard Co. v. Miloslowsky
| Decision Date | 24 November 1914 |
| Docket Number | 29698 |
| Citation | 149 N.W. 504,167 Iowa 395 |
| Parties | ALEXANDRIA BILLIARD COMPANY, Appellant, v. J. MILOSLOWSKY, Appellee |
| Court | Iowa Supreme Court |
Appeal from Polk District Court.--HON. CHAS. S. BRADSHAW, Judge.
ACTION at law to recover damages for a breach of contract to lease certain premises in the city of Des Moines. Trial to a jury directed verdict for defendant, and plaintiff appeals.
Affirmed.
Oscar Strauss and Don B. Shaw, for appellant.
Howe & Lyon and Parsons & Mills, for appellee.
The estate of C. Youngerman, Incorporated, is the owner of the premises in controversy, and in March of the year 1910 it leased the same by written lease to Abe Frankel and Nate Siegel for the term of ten years. The lease provided, among other things, that the lessees would--not sell this lease nor underlet the entire premises without the written consent of the party of the first part, but may sublet portions of said building with the consent of the said party of the first part being first obtained thereto, provided, however, that the same shall not be sublet to any tenant who will use the said premises for any unlawful purpose or any housekeeping or for any business that shall be a detriment to the building or for any business that shall create a wear and tear more than the ordinary business of stores or offices or light manufacturing, and that they would, at the expiration of this lease, surrender the possession of said premises to the party of the first part without further notice to quit in as good condition and repair as the same are now in or may be placed in by the party of the first part, unavoidable wear and tear alone excepted.
The lessor agreed to make certain specified alterations and changes in the building in conformity to certain specifications made by named architects, and also to keep the roof of the building in repair; but other repairs were to be made by the lessees. Lessees were to pay for the light and heat of the building, and they also agreed that they would--not allow the said premises to be damaged or depreciated in value by any act of negligence of theirs or their employes or any subtenant to whom they may lease the same under the provisions of this lease, in any manner whatever, and use all proper care and diligence in taking care of the same and at the expiration of this lease to surrender the said premises in a clean, presentable condition upon removal therefrom; and to comply with the ordinances of said city relative to the sanitary condition of said premises and the removal of snow and other obstructions from the sidewalk.
Frankel and Siegel assigned this lease to the plaintiff, a corporation doing business in the city of Des Moines, with the consent of the original lessor. Some time in September of the year 1912, plaintiff entered into negotiations with defendant to lease a part of the building leased by them, and pursuant thereto they entered into a memorandum of agreement, which reads as follows:
This agreement made and entered into on this 5th day of September, A. D. 1912, witnesseth: That whereas the Alexandria Billliard Company, a corporation duly organized under the laws of the state of Iowa hereinafter known as party of the first part, holds a lease for a period of eight years from the 25th day of June, 1912, from the C. Youngerman Estate, Incorporated, on the premises locally known as 513 and 515 Locust St., Des Moines, Iowa and whereas J. Miloslowsky, hereinafter known as party of the second part, is desirous of subletting the first floor of the building upon the said property for the unexpired portion of the lease, it is therefore mutually agreed by and between the parties hereto that party of the first part agrees to sublet said first floor of said premises save and except that portion of the said first floor now occupied by a saloon, and a ten-foot entrance off the west side of said premises leading to the stairway to the second floor, where first party contemplates moving his billiard hall, and said second party agrees to pay to said first party or his assigns, for the use of first said floor, the sum of $ 350 per month. It is understood that said first party is to build their own partitions for the ten-foot entrance heretofore mentioned, at their own expense. It is further understood by and between the parties hereto that said second party is to use said first floor for a moving picture business or any other legitimate business, and that this contract is to be of no force and effect unless said subletting herein contemplated is consented to by the landlord, the C. Youngerman Estate, Incorporated. It is further understood by and between the parties hereto that the principal use to which the second party contemplates putting said first floor is a moving picture business, and unless said pillars supporting the roof of the said first floor can be removed so as to make the room suitable to said business, then and in that event this contract is to be of no force or effect. Second party further agrees to surrender back to the first party said premises in the same condition as that in which he received them at the termination of sublease. Said second party as a further consideration agrees to pay to the first party a bonus of $ 5,000 over and above the monthly rental herein provided for. Said $ 5,000 to be paid when the contract of said lease is executed and is satisfactory to both parties. It is further understood and agreed that this contract is to be of no force and effect if the C. Youngerman Estate, Incorporated, does not agree to the remodeling necessary to put said building in condition for the moving picture business, and said contract to be of no force and effect if the city of Des Moines refuses to license for the operation of the moving picture business in said premises hereinbefore described.
Witness our hands at Des Moines, Iowa this 5th day of September, A. D. 1912.
Party of the First Part.
J. Miloslowsky,
Party of the Second Part.
It will be observed that this is a conditional agreement, and that it contemplated the execution of a subsequent written lease between the parties; a part of the consideration to be paid upon the execution of a lease satisfactory to both parties. Plaintiff pleaded that all the conditions of this agreement were fully performed by it, and that it tendered defendant a written lease in accord with the terms of the preliminary agreement, and that the Youngerman Estate consented to the necessary remodeling of the building to put it in condition for defendant's use, according to the memorandum of agreement. It also pleaded that:
A lease was prepared which was satisfactory to both parties, and which this plaintiff was willing and offered to execute; that said defendants refused to execute said lease and perform the conditions of said agreement set out in plaintiff's original petition, demanding that the said C. Youngerman Estate, Incorporated, agree to guarantee the furnishing of heat in said building and perform other conditions not required or set out in said written agreement between plaintiff and defendant, basing his refusal to perform the conditions of said agreement to be performed by him solely and only upon the refusal of the said C. Youngerman Estate, Incorporated, to comply with conditions which were not embodied in said agreement; that defendant thereby prevented and waived further compliance with the conditions of said contract and agreement.
Defendant admitted the execution of the memorandum of agreement, but denied each and every other allegation of the petition and an amendment thereto. After plaintiff had introduced all his testimony in support of its pleadings, defendant moved for a directed verdict, and this motion was sustained; a verdict was accordingly directed, and judgment rendered thereon. The appeal is primarily from the ruling on the motion.
It seems that, when the matter of subleasing a part of the property to the defendant was presented to the owner, it prepared and submitted to the parties the following memorandum:
The Estate of C. Youngerman, Incorporated, hereby agrees and consents that the Alexandria Billiard Company may sublet to J. Miloslowsky part of the building known as 513-515 West Locust St., described in the lease and in accordance with the terms thereof, which lease is hereto attached upon conditions as follows:
(1) That the changes and alterations to be made by the said J. Miloslowsky shall be under the direction and supervision of the architects, Proudfoot, Bird & Rawson, and shall be satisfactory to said architects that the strength of the building is not in any way impaired thereby, and that the expense of the architects shall be paid by the said J. Miloslowsky.
(2) That J. Miloslowsky shall at the expiration of its lease replace iron columns in the same place they now are, and also put the entire room in the condition it now is, if so demanded by the Estate of C. Youngerman, Incorporated.
(3) That J. Miloslowsky shall pay the rentals under said lease direct to the Estate of C. Youngerman, Incorporated, and same be applied upon the rent of the lease between the Estate of C. Youngerman, Incorporated, and Frankel & Siegel; the Alexandria Billiard Company being successors of said firm Frankel & Siegel.
(4) That the consent hereby given shall not in any way release Frankel & Siegel or the Alexandria Billiard Company from any obligation or liability under their lease with the Estate of C. Youngerman, Incorporated, for entire building.
(5) That the said Alexandria Billiard Company, or Frankel & Siegel, shall assign to the Estate of...
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