Babcock v. Rieger

• Citation: 58 S.W.2d 722,332 Mo. 528
• Decision Date: 21 March 1933
• Docket Number: 31021
• Parties: Sherill Babcock, Appellant, v. A. E. Rieger, Louis Singer and Max Brenner
• Court: Missouri Supreme Court

58 S.W.2d 722

332 Mo. 528

Sherill Babcock, Appellant, v. A. E. Rieger, Louis Singer and Max Brenner

No. 31021

Supreme Court of Missouri

March 21, 1933

Appeal from Jackson Circuit Court; Hon. O. A. Lucas, Judge

Reversed and remanded.

Henry S. Conrad, L. E. Durham and Hale Houts for appellant.

(1) Questions before the court. Turner v. Anderson, 236 Mo. 543; State ex rel. v. Railway Co., 10 S.W.2d 922; Sec. 1163, R. S. 1929. (2) The court erred in transferring the case to the equity docket. It was an action at law under plaintiff's petition and was not converted into an equity case by the pleadings of the defendants. Withers v. Railroad, 226 Mo. 396; Schuerman v Ins. Co., 165 Mo. 652; Moline Plow Co. v Hartman, 84 Mo. 610; Priest v. Oehler, 41 S.W.2d 786; Berryman v. Motor Car Ins. Co., 199 Mo.App. 504; Bank of Neeleyville v. Lee, 193 Mo.App 542; Chilton v. Chilton, 297 S.W. 459; Boehne v. Roth, 280 S.W. 731; Stalter v. Stalter, 151 Mo.App. 66; Thompson v. Bank, 132 Mo.App. 227; Rand McNally & Co. v. Wickhan, 60 Mo.App. 44; Moore v. Mansfield, 286 S.W. 354; Green v. Conrad, 114 Mo. 651; Bondurant v. Mills, 294 S.W. 742. (3) The finding and judgment should have been for the plaintiff. If an equity case, the circuit court erred in not so decreeing, and such judgment should be directed by this court. If at law, the law of the case should be so declared. The allegations of plaintiff's case were fully established. Secs. 965, 2958, R. S. 1929; Dobyns v. Beneficiary Assn., 144 Mo. 109; Wishart v. Gerhart, 105 Mo.App. 115; Bless v. Jenkins, 129 Mo. 660; Bieler v. Devoll, 40 Mo.App. 255; Meyer v. Christian, 64 Mo.App. 206; Gerhart Realty Co. v. Wieter, 108 Mo.App. 248; Haumueller v. Ackerman, 150 Mo.App. 146. Under the pleadings and the evidence no affirmative defense releasing Brenner from the lease, or releasing defendant guarantors from their guaranty for the default in question, was established and plaintiff was entitled to judgment. (a) The terms of the lease did not relieve Brenner of the obligation to pay rent during the sixty days elapsing after the occurrence of the fire and prior to Brenner's delivery of the keys to plaintiff for plaintiff's entry for the purpose of making repairs. Kansas City to use v. Youmans, 213 Mo. 151; Gralnick v. Magid, 292 Mo. 391; Heating & Plumbing Co. v. Oviatt, 60 Mo.App. 565. (b) Brenner did not surrender possession of the premises so as to terminate the lease, and plaintiff did not accept any such surrender on March 9th. D. A. Schulte, Inc. v. Haas, 287 S.W. 817. (c) Plaintiff was under no duty to mitigate the damages by reletting the premises. Von Schleinitz v. North Hotel Co., 23 S.W.2d 75; Jennings v. First Natl. Bank, 30 S.W.2d 1052; Commercial Building Co. v. Lehman, 6 S.W.2d 1002. (d) Plaintiff did not elect not to repair the premises or to terminate the lease because of the fire, nor was any such election created by estoppel. The lease was not terminated by any breach on the part of plaintiff. Wood v. Telephone Co., 223 Mo. 560; 28 C. J. 998; Central Savings Bank v. Shaw, 48 Mo. 456; Fiester v. Droyda, 171 Mo.App. 604; 28 C. J. 1022; American Bonding Co. v. Pueblo Inv. Co., 150 F. 22; Vanderbeek v. Construction Co., 73 A. 481; Siegel v. Bailey, 97 A. 401; Boston Box Co. v. Rosen, 150 N.E. 177; Morrill v. Baggett, 157 Ill. 240, 41 N.E. 639; Squires v. Hoffman, 278 S.W. 805; Martin v. Whites, 128 Mo.App. 117; Third Natl. Bank v. Owens, 101 Mo. 579; Home Savings v. Traube, 75 Mo. 199. (4) The court erred in giving peremptory instructions 1, 2, 3 and 4 (R. 269-70) for the defendants. Plaintiff was entitled to judgment on his petition against defendant Rieger and against defendant Singer and none of the defendants were entitled to affirmative relief. See cases cited under (3). (5) The court erred in refusing to consider and in not giving each and all of the declarations of law requested by plaintiff, I, II, III, IV, V (R. 274-5). See cases cited under (3). (6) The court erred in refusing findings of fact II, III, IV, VI, VII and VIII requested by plaintiff and in giving findings of fact II, III, IV, V, VI, VII, VIII and IX requested by the defendants (R. 271-3, 275-9). See cases cited under (3).

Frank M. Lowe, Ringolsky, Boatright & Jacobs, I. J. Ringolsky. Wm. G. Boatright, Harry L. Jacobs and D. S. Millman for respondents.

(1) The cross-petition of Brenner (and of the other defendants) converted the action into a proceeding in equity. The pleadings alleged and disclosed special and peculiar circumstances invoking equitable jurisdiction. (a) Equity jurisdiction to cancel instruments depends only on existence of special and peculiar circumstances rendering resort to equity proper. Hamilton v. Cummings. 1 Johnson's Chancery Rep. 523; 9 C. J. 1193, sec. 62. (b) It is sufficient if the instrument is such as might prove annoying embarrassing, irritating or put to a bad use. Otis v. Gregory, 111 Ind. 510; Fitzmaurice v. Moiser, 116 Ind. 366; Fred Macey Co. v. Macey, 143 Mich. 138; Ferguson v. Fisk, 28 Conn. 511; Hamilton v. Cummings, supra; McHenry v. Hazard, 45 N.Y. 580; 2 Story, Eq. J. (14 Ed.) sec. 947, pp. 324, 330. (c) Where special circumstances are present the fact that the instrument is not negotiable or may be transferred subject only to existing defenses at law is not fatal to equity jurisdiction. Begley v. Miss. Valley Trust Co., 252 S.W. 84; Buxton v. Broadway, 45 Conn. 540; Ferguson v. Fisk, 28 Conn. 511; Hamilton v. Cummings, supra; Fuller v. Percival, 126 Mass. 381; Ritterhoff v. Puget Sound Natl. Bank, 79 P. 601; Otis v. Gregory, supra; Fitzmaurice v. Mosier, supra; Fred Macey Co. v. Macey, supra; Porter v. Jones, 6 Cold. (Tenn.) 318; Domingo v. Getman, 9 Cal. 97; Strafford v. Welch, 59 N.H. 46. (d) The fact that a suit at law is pending is not fatal to equity jurisdiction since such suit may be discontinued. Begley v. Miss. Valley Trust Co., supra; Domingo v. Getman, 9 Cal. 97; Porter v. Jones, 6 Cold. (Tenn.) 319; Buxton v. Broadway, 45 Conn. 541; 9 C. J. 1164, secs. 13, 14; Head v. Oglerly, 194 S.W. 793; Metler's Admr. v. Metler, 19 N.J.Eq. 457; Barrington v. Ryan, 88 Mo.App. 85; 5 Pomeroy's Eq. J., sec. 2107, pp. 4749, 4750. (e) Equity jurisdiction to cancel a lease exists where suit has been brought on an installment of rent claimed to be due thereunder. Lincoln Trust Co. v. Nathan, 175 Mo. 32. (f) The following Missouri cases illustrate exercise of equity jurisdiction approved by Missouri appellate courts even though suit was pending or the note in question had matured, etc. McAlister v. St. Joseph Street Const. Co., 181 S.W. 54; Claybrook v. Saulsberry, 204 S.W. 60; Kroenke v. Frederick, 292 S.W. 34; Wendover v. Baker, 121 Mo. 273; Colbrun v. Krenning, 220 S.W. 937; Barrington v. Ryan. 88 Mo.App. 85. (g) If an equitable defense is set up by answer and, in addition, there is a prayer for affirmative equitable relief, the cause is converted into a proceeding in equity. Koehler v. Rowland, 275 Mo. 573; Bouton v. Pippin, 192 Mo. 469; Shaffer v. Detie, 191 Mo. 377; Martin v. Turnbaugh, 153 Mo. 172. (h) Whether the case is triable in equity is determined from the pleadings. Hubbard v. Slavens, 218 Mo. 598; Ebbs v. Neff, 30 S.W.2d 620. (i) This court in quashing the opinion of the Court of Appeals determined that the case was converted into a proceeding in equity and the question is no longer open. State ex rel. v. Trimble, 32 S.W.2d 761. (2) The premises were untenantable from and after the date of the fire. (a) The word "untenantable" standing alone simply means that the premises are unfit for the purpose or use contemplated by the lease. Plate Glass Underwriters Inc. Co. v. Ridgewood Realty Co., 269 S.W. 659; Wolff v. Turner, 6 Ga.App. 366, 65 S.E. 41; Acme Ground Rent Co. v. Werner, 139 N.W. 314. (b) In the lease here involved there is additional reason for construing the word "untenantable" to mean that the premises are unfit for the purpose or use contemplated by the lease because of the juxtaposition of the word in Clause 6 with the language "wholly or partially untenantable" and because Clause 6 clearly means that for any untenantability, whether whole or partial, the lease ends unless affirmative action is taken by the landlord under its terms to revive the same. Therefore, any untenantability that would require election on the part of the lessor to keep the lease in force should be considered as that character of untenantability referred to in the lease as working an abatement of rent. (c) It is admitted by the lessor that the degree of untenantability which followed the fire was of the character described in the lease as abating the rent. This admission was made by the landlord's agent in testimony, by the landlord's letter of February 26 stating that the rent will abate, and by the lessor's reply alleging that the rent did abate while the premises were untenantable. (3) Waiver is the intentional relinquishment of a known right. The secret intention does not control. The party is bound by the legal consequences of what he says or does. Once made waiver cannot be withdrawn. Waiver, 40 Cyc. 252; Michigan Loan Assn. v. M. K. & T. Trust Co., 73 Mo.App. 161; Stiepel v. German-American Mut. Life Assn., 55 Mo.App. 224; Champion Spark Plug Co. v. Automobile Co., 273 F. 74; Keys v. Knights & Ladies of Security, 174 Mo.App. 671. (4) The letter of February 26th purporting to be an election by lessor to repair, even if lessor had the right at that time to make such election, did not comply with the provisions of the lease and was ineffective. James v. Darby, 100 F. 224; Couch v. McCoy, 138 F. 696; Scott v. Davis, 141 Mo. 213. (5) Lessor directed and authorized the lessee to perform the lease in a substantially different manner than its terms provided without the approval of the guarantors. ...