B. Roth Tool Co. v. Champ Spring Co.

• Decision Date: 01 April 1902
• Citation: 67 S.W. 967,93 Mo. App. 530
• Court: Missouri Court of Appeals
• Parties: B. ROTH TOOL CO. v. CHAMP SPRING CO.<SMALL><SUP>1</SUP></SMALL>

67 S.W. 967

93 Mo. App. 530

B. ROTH TOOL CO. v. CHAMP SPRING CO.¹

Court of Appeals of St. Louis, Missouri.

April 1, 1902.

LANDLORD AND TENANT — ASSIGNMENT OF LEASE — CONSENT OF LANDLORD — STATUTE OF FRAUDS — ACCEPTANCE OF TENANT — COVENANTS RUNNING WITH LAND — FURNISHING STEAM POWER — TENANCY AT WILL — TERMINATION.

1. Where a lease is for one year, with a provision that after that time it may be ended by six months' notice by either party, it is not void for uncertainty, so as to create a tenancy from month to month.

2. The statute providing that a tenancy at will may be terminated by 30 days' notice does not control where the parties have stipulated in writing for a longer time.

3. Where a lease is for one year, with a provision that after that time it may be ended by six months' notice, there is substantially, though not technically, a tenancy at will after the first year.

4. Any leasehold term either for part of a year or for one or more years is within Rev. St. 1899, § 3415, providing no leases, estates, either of freehold or term of years, or any uncertain interest of, in, to, or out of any lands, tenements, or hereditaments, shall be assigned, granted, or surrendered, unless it be by deed or note in writing, signed by the party so assigning, etc., or their agents lawfully authorized by writing, or by operation of law.

5. Where a lessor is not a party to an assignment of the lease, he cannot question the validity of the assignment under Rev. St. 1899, § 3415, providing that no leases shall be assigned unless by deed or note in writing, signed by the party so assigning, or their agents lawfully authorized by writing, or by operation of law.

6. A lease for less than two years, at the option of the parties, is within Rev. St. 1899, § 4107, providing that no tenant for a term not exceeding two years or at will or by sufferance shall assign or transfer his term or interest, or any part thereof, to another, without the written assent of the landlord.

7. Where a lessor wrote one to whom the lessee had assigned, stating that the letter terminated the lease with the addressee, there was a written assent to the assignment, within section 4107, requiring such assent by the landlord to validate the assignment.

8. Where an assignment of a lease, which provided the lessor should furnish steam power to the lessee, was made without the lessor's consent, but subsequently rent was accepted from the assignee, and power supplied to it, such conduct validated the assignment.

9. Where the members of a lessee partnership form a corporation to carry on the business, and they treat the corporation as having acquired the rights of the firm, in a suit in equity by the corporation on the lease an assignment of the lease will be presumed.

10. Where a lease of a factory building provides that the lessor shall furnish the lessee steam power to operate its works, a failure to furnish the power may be enjoined.

11. Where, in a lease of premises for a factory, the lessor covenanted to furnish steam power, and the lease was assigned with the landlord's consent, there being privity of estate between the lessor and assignee, and the performance of the covenant being vital to the enjoyment of the premises, the covenant passed to the assignee.

Appeal from St. Louis circuit court.

Suit by the B. Roth Tool Company against the Champ Spring Company. From a decree for complainant, defendant appeals. Affirmed.

R. M. Nichols, for appellant. Ed L. Gottschalk, for respondent.

GOODE, J.

The above-entitled suit was instituted the 18th day of September, 1901, for equitable relief by injunction against the appellant on the ground that the respondent, a corporation, was entitled to the benefit of certain covenants contained in a lease theretofore made by the Champ Spring Company, as lessor, to E. B. Roth, Charles Roth, and William Boefer, their successors or assigns, as lessees, the respondent having succeeded to the rights of said lessees under said lease, which was executed on the 15th day of March, 1897, for the term of one year, to commence on the 15th day of June, 1897, and end the 15th day of June, 1898. The leasehold premises are in the city of St. Louis, and in addition to said premises the Champ Spring Company was to furnish the lessees with steam and power sufficient to run their factory six days in the week, all for the consideration of $145 a month. Another clause in the lease, material to this controversy, was as follows: "This lease may be terminated any time after June 15, 1898, by either party giving six months' notice in writing." The original lessees continued in possession and occupation of the premises until the 6th day of July, 1900, when they incorporated as the B. Roth Tool Company, which is the respondent. Afterwards the following notice was addressed to and served on the respondent: "St. Louis, March 30, 1901. B. Roth Tool Co. — Gentlemen: Our lease with you requires us to give you six months' notice in writing to terminate the lease. We therefore notify you that your present lease with us expires six months from this date, as we are in need of the space you occupy to enlarge our business. Please acknowledge receipt of this letter. Yours truly, Champ Spring Co. C. E. Champ, President." By that notice respondent's right to the premises would have ended on the 30th day of September, 1901. Another notice was served, which is as follows: "B. Roth Tool Co., Wm. Boefer, Charles A. Roth, and Edw. Roth, St. Louis: You are hereby notified that the tenancy heretofore existing between you and the undersigned of the property hereinafter described will be terminated on the 15th day of September, 1901, at which time you are respectfully requested to remove from and surrender up to the undersigned the quiet and peaceable possession of premises. * * * And possession of said premises upon said 15th day of September, 1901, is now demanded of you. Champ Spring Company, by C. E. M. Champ, President. St. Louis, Mo., August 13, 1901." The last notice (which was given on the theory that the tenancy was from month to month), therefore, undertook to terminate respondent's occupation 15 days earlier than the first notice, and on respondent's failing to vacate at the date called for by the last notice, to wit, the 15th day of September, 1901, the appellant turned off the steam and power which it was required by the lease to furnish, and, as respondent was unable to obtain steam and power from any other source, it instituted this action to compel the appellant to restore and continue the service. A temporary injunction was granted on the 27th day of September, 1901, but was dissolved on the trial, and the bill dismissed, for the reason that, while respondent was entitled to the temporary writ at the time it was granted, the notice served March 30th to terminate the tenancy September 30th took effect on the latter date, and, as respondent's right to the premises had ended before the hearing of the cause, it was improper to continue the injunction longer; but the court found the respondent had succeeded to the original lessees' rights, and taxed the costs against the appellant.

1. The lease in question was not void for uncertainty, so that a tenancy from month to month arose, terminable on 30 days' notice by the landlord, as contended by the appellant. It fixed a certain time, to-wit, one year, with a proviso that after that time it might be ended by six months' notice by either party. Leases like this have been several times construed, and always held to be sufficiently certain. Thompson v. Maberly, 2 Camp. 573; Reg. v. Inhabitants of Chawton, 1 Q. B. Div. 247; Chadborn v. Green, 9 Adol. & E. 658. Of course, the present lease created substantially, though not technically, a tenancy at will after the first year by force of its terms (1 Tayl. Landl. & Ten. [2d Ed.] p. 87), but a 30-days notice was insufficient to end it, if it had been a technical tenancy at will, because the parties had stipulated for a longer one. We think the statute providing that a tenancy at will can be ended by 30 days' notice does not control if the parties stipulate in writing for a longer or shorter notice.

2. Neither a written assignment of the lease to the Roth Tool Company by the lessees E. B. and Charles Roth and William Boefer, nor the written assent of the Champ Spring Company, as lessor, to an assignment, was shown, and appellant therefore claims that no privity of either contract or estate existed between it and the respondent by virtue of which the respondent was entitled to sue for the breach of any covenant contained in the lease. In this connection certain statutes must be considered. The statute of frauds provides as follows: "No leases, estates, interests, either of freehold or term of years, or any uncertain interest of, in, to or out of any messuages, lands, tenements or hereditaments, shall at any time hereafter be assigned, granted or surrendered, unless it be by deed or note in writing, signed by the party so assigning, granting or surrendering the same, or their agents lawfully authorized by writing, or by operation of law." Rev. St. 1899, § 3415. The present lease created an estate for years, for any leasehold term for either part of a year or for one or more years falls in that class of estates. 1 Tayl. Landl. & Ten. (8th Ed.) § 54. It follows that an assignment of the lease, to be valid under the statute of frauds, must have been in writing; and if this was an action between the original lessees as assignors and the Roth Tool Company as assignees on the contract of assignment, we would hold said contract void. But, as we understand the law in this state, the statute of frauds cannot be availed of to invalidate a contract by one not a party to it (Railway Co. v. Clark, 121 Mo. 169, 25 S. W. 192, 906, 26 L. R. A. 751; Kratz v. Stocke, 42 Mo. 351; Browne, St. Frauds [5th Ed.] § 135, and cases cited); and as the Champ Spring Company was no p...