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

• Decision Date: 30 November 1909
• Parties: B. ROTH TOOL COMPANY, Respondent, v. CHAMP SPRING COMPANY, Appellant
• Court: Missouri Court of Appeals

123 S.W. 513

146 Mo.App. 1

B. ROTH TOOL COMPANY, Respondent, v. CHAMP SPRING COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

November 30, 1909

Argued and Submitted November 4, 1909.

Appeal from St. Louis City Circuit Court.--Hon. Daniel G. Taylor Judge.

AFFIRMED.

STATEMENT.--Under date of March 15, 1897, the Champ Spring Company made a lease to Wm. Boeffer, Chas. A. Roth and E. B. Roth of certain premises in the city of St. Louis, the lease covering the buildings and improvements then on the premises, excepting certain portions thereof either leased to another or retained by the lessor, "to have and to hold unto the parties of the second part, their successors or assigns, during a term of one year, commencing on the 15th day of June, 1897, and ending on the 15th day of June, 1898, they to pay rent for said premises, which includes steam and power sufficient to run their plant, six days in the week, during the hours of and between 7 a. m. and 6 p. m. (except legal holidays), to the party of the first part, its successor or assigns, at the rate of one hundred and forty-five dollars per month ($ 145) payable in advance, for and during the term of their lease. Provided always nevertheless if the rents above reserved be not paid when same shall become due and payable as above set forth, then this lease shall be void. . .

"In the event of the party of the first part, from any cause whatsoever, failing to furnish power or steam, to operate the plant of the party of the second part, during the hours herein mentioned, they agree to allow them for same. . . .

"This lease may be terminated any time after June 15, 1898, by either party giving six months' notice in writing."

There is no covenant against assignment whether with or without the consent of the lessor in the lease itself.

It appears by the evidence in the case that Boeffer and Chas. A and E. B. Roth were carrying on the trade of blacksmithing and tool makers, or as a witness said, "the tool, forge and machine business," under the name of B. Roth Tool Company, a partnership which, some time in 1901, was incorporated under the name of B. Roth Tool Company, and that after incorporation under that name, these same lessees, but as a corporation, occupied the premises and carried on the business of blacksmithing and tool making as before, paying rent to the defendant as its landlord under the terms of the lease. It seems from the evidence in this case that about the 30th of March, 1901, the defendant gave plaintiff notice in writing as follows:

"B. Roth Tool Company, City.

Gentlemen:

Our lease with you requires us to give you six months' notice in order to terminate your 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.

CHAMP SPRING COMPANY,

C. E M. Champ, President."

This notice was served on Mr. Edward B. Roth, one of the members of the plaintiff company, and on receipt of it he saw the president of the defendant company who explained to Mr. Roth that the defendant company wanted the additional room in the building for their own purpose which was the reason for giving the notice. Following this notice, which was dated the 30th of March, 1901, the defendant served another notice upon the plaintiff, which is as follows:

"B. Roth Tool Company, Wm. Boeffer, Charles A. Roth and Edw. B 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 in block No. 2275 of the city of St. Louis, State of Missouri, fronting one hundred and sixty-two feet and ten and three-fourths inches on the north line of Chouteau avenue, by a depth of one hundred and thirty-seven feet, to the apartments now occupied by the Champ Spring Company, excepting from said description the property not occupied by you but occupied by Fred Ahrens as a blacksmith shop, and stables, boiler house and boiler occupied by the Champ Spring Company; said property occupied by you is further described as bounded east by property now or formerly of Joseph Schneider, south by Chouteau avenue, and west by the property now or formerly of Edenborne, or a line 212 feet 11 inches, more or less, east of the east line of 22d street; and upon which are buildings and improvements known as No. 2115 Chouteau avenue. 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., Aug. 13, 1901.

At the expiration of the thirty days mentioned in this last notice, defendant shut off the steam power, that being done either the sixteenth or the morning of the seventeenth of September, 1901, and it remained shut off until the 30th of September or the first of October, according to the testimony of the plaintiff, or according to the testimony of the defendant, until the 27th of September, 1901. Both parties, however, agree that one Sunday only intervened between the time of shutting off and turning on the power. On the 18th of September, 1901, this plaintiff instituted a suit in the circuit court of the city of St. Louis against this defendant, to restrain it from turning off the steam and power from the plant and that it be required to turn the same on and furnish plaintiff with steam and power as provided in the lease and that defendant be further restrained from interfering with plaintiff in the free use and occupation of the property, this being the prayer in the petition for the injunction, which was filed, the fact of the lease and its terms and of the notice of termination and of the fact of shutting off of the power being set out in the petition. Upon the filing of this petition, the circuit judge to whom it was presented, entered up an order granting a temporary injunction, enjoining defendant from interfering with plaintiff in the free use and occupancy of the property described and ordering the defendant not to turn off and not to keep turned off the steam and power provided for in the contract of lease. Apparently under this order, which was dated the 27th of September, the power was turned on. This suit for injunction was finally heard and determined in the circuit court and a decree rendered therein on November 22, 1901. In this decree, the circuit court found and adjudged that it was provided in the lease that it could be terminated at any time after June 15, 1898, by either party giving six months' notice in writing to the other, and it was further found by the court that after June 15, 1898, "the plaintiff company, which was the successor of the lessees and so recognized by the defendant, remained in possession under this instrument, paying the monthly rent therein provided for, that on March 30, 1901, defendant gave notice reciting that their lease required six months' notice, that they thereby notified the plaintiff that the lease would expire six months from that date (March 30, 1901). On August 13, 1901, the defendant gave plaintiff notice to vacate on September 15, 1901, and on September 15, 1901, defendant shut off the steam power, whereupon the temporary injunction was granted, and the court doth find, as a matter of law that the plaintiff held as tenant under said lease, and under the provisions of the lease the same continued, until the six months' notice should be given, that the notice given August 13, 1901, terminating the tenancy September 15, 1901, did not have the effect of terminating the same, but that the notice given March 30, 1901, did have the effect of terminating the lease September 30, 1901. That at the time of the granting of the temporary injunction plaintiff was entitled thereto, and to the relief sought, but that by reason of the termination of the lease under the notice of March 30, 1901, on September 30, 1901, the further continuance of the injunction would be improper and the costs of this proceeding shall be paid by the defendant." It was thereupon ordered by the court that the injunction theretofore granted September 27, 1901, be dissolved and the cause dismissed and plaintiff recover for the defendant its costs in its behalf expended.

In this suit last above referred to, this defendant (as defendant therein) filed an answer denying the allegations in the petition and as a further defense set up that the plaintiff occupied the premises in its petition described under a written lease with the defendant, the term of which expired June 15, 1898; "that after the expiration of said lease on June 15, 1898, said plaintiff, with the consent of the said defendant, continued to occupy the said premises as a monthly tenant, paying rent therefor as such monthly tenant." The answer then avers that pursuant to the statute, it had, on the 14th of August, 1901, served a notice in writing on the plaintiff, terminating the tenancy theretofore existing between plaintiff and defendant on the 15th of September, and demanding possession of the premises on the 15th of September, and averring that notwithstanding the termination of the tenancy, plaintiff continues to hold possession. This answer was sworn to by Mr. Champ, he stating in his affidavit that he was president of the defendant company, and upon the filing of this answer defendant filed a motion to dissolve the temporary injunction. With this answer and the motion before it, the circuit court entered up the order for a temporary injunction and on hearing the case on its merits,...