Bauer v. White
| Decision Date | 16 June 1930 |
| Citation | 29 S.W.2d 176,225 Mo.App. 270 |
| Parties | JOHN BAUER ET AL., APPELLANTS, v. EDWARD WHITE ET AL., RESPONDENTS |
| Court | Kansas Court of Appeals |
Appeal from Circuit Court of Jackson County.--Hon. Darius A. Brown Judge.
AFFIRMED.
Judgment affirmed.
Wilkinson & Wilkinson and Frank Lee Wilkinson for appellants.
Henry S. Julian for respondents.
Trimble, P. J., absent.
This is an action in unlawful detainer. The case was tried before the court without the aid of a jury. The court rendered a judgment containing a special finding of facts but thereafter set aside the judgment containing said finding, made a finding of "not guilty" and rendered judgment in favor of defendants. Plaintiffs have appealed. There was no finding of facts or declaration of law requested or given and, under the circumstances, if the judgment can be upheld upon any theory it is necessary for us to sustain it. [Weber Engine Co. v. Lehrach, 262 S.W. 457.]
The facts taken in their most favorable light to defendants are as follows: Plaintiffs owned a combined residence and business building in Kansas City, the store building being on the ground floor and an apartment, consisting of five rooms and a bath, with a separate entrance in the rear, on the upper floor. Connected with the property was a garage.
On the back of the lease was the following:
. . . .
. . . .
Mrs. Snyder, the lessee, moved into the property and opened up a bakery therein. She paid the rent up to January 1, 1929. About Christmas time in 1928 she called upon the plaintiff, John Bauer, who evidently acted, in all of the transactions involved herein, as agent of the plaintiff, Thresia Bauer, as well as for himself. At this meeting Mrs. Snyder told Bauer that she desired "to get out of business" and asked him "if it was agreeable with him for me to assign the lease over to Mr. Maddox." Bauer replied "it was." She sold the business to Maddox and having a duplicate copy of the lease she indorsed the same in blank, signing her name on the first blank line for signature in the blank form of the assignment on the back of the lease. Maddox did not sign on the second line, nor was his name signed anywhere upon the lease, nor inserted in the assignment. Mrs. Snyder delivered the lease to Maddox but plaintiffs did not at any time agree in writing to the assignment of the lease to him or anyone else. Maddox entered into the property and was there about two weeks when he sold the business to one Middleton. Nothing was written upon the lease when the sale was made to Middleton, but Maddox delivered the lease, with the existing indorsements thereon, to Middleton at the time he sold out to the latter, saying to him:
"Mr. Bauer had told Mrs. Snyder it would be all right for me to take it over and 'I suppose it will be all right for you to take it.'"
Maddox and Middleton did not take up with Bauer the matter of the assignment at the time of the sale to Middleton.
Bauer testified that he did not know whether Maddox had accepted the lease and entered into the business or not, but on the next rent paying time, which was the first or second of January, 1929, Middleton came to him and said that he was "running the place," but that the witness did not know whether Middleton was running the place for himself or some one else; that the witness was "looking for a man by the name of Maddox," as Mrs. Snyder had said she had sold to a man of that name; that the witness desired that whoever was to take the property should sign the lease and he expected Mrs. Snyder and Maddox to come to see him with the request that he assign the lease to Maddox. However, at the first interview that the witness had with Middleton the latter paid the rent with his own check. The witness at this time did not request Middleton to sign the lease because he did not know whether or not the latter was the proprietor of the place or operating it for some one else. Later Mrs. Snyder called the witness over the telephone and told him that she believed Middleton was taking the lease. The next time the witness saw Middleton he told him what Mrs. Snyder had said and Middleton stated that "he couldn't and wouldn't take the lease." The witness asked him several times thereafter "to take it" but Middleton refused to sign it but paid the rent for February and March.
The witness further testified that on the 23rd of April the rent had not been paid. He went to the store to ask Middleton the reason for this. Middleton was not there but the man who was working there said that Middleton had been gone more than three weeks, and a man by the name of Maddox "has the place." The witness then had Otto Schmidt call Maddox over the telephone. Mr. Schmidt reported to the witness that Maddox stated that he would pay the rent and that he would send a check for it the next day. The witness received a check from Maddox through the mail and in the early part of May he again received a check for the rent signed by Maddox. The witness did not at any time see Maddox personally until the latter and the defendant, Edward White, came to see him about White's buying out Maddox. White came to see Bauer about the 8th or 9th of May in regard to buying out Maddox and obtaining the consent of the witness to the assignment of the lease to White. The witness admitted that he verbally consented to the transfer.
White testified that at the time he saw Bauer in May he "had a deal" with Maddox in reference to buying out the latter, but before consummating the transaction he saw Bauer about getting the latter's consent to the assignment of the lease, and asked him if he would make certain repairs on the inside of the store building. Bauer agreed to do this and some painting but refused to do anything else. This was satisfactory to White and the next day he and Maddox called upon Bauer, taking with them Mrs. Snyder's copy of the lease which White had procured from Maddox, and Bauer verbally consented to the assignment from Maddox to White. White handed Bauer the lease and asked him to sign it at the proper place but Bauer did not comply with this request, saying "I will get my copy from the bank and sign both copies together." White further testified that he did not see any object in Bauer signing both copies together and paid no further attention to it and did not obtain Bauer's signature; that "so long as he had accepted me as a tenant under this lease that was all that I was interested in." There after he consummated the purchase with Maddox and went into possession of the premises and paid Bauer the rent, White and his wife operating the business together. When Maddox sold to White, and apparently when Middleton sold to Maddox, nothing was written upon the lease in the way of a signature or otherwise, but it was delivered by the seller to the buyer with the blank assignment of Mrs. Snyder upon it.
During July, 1929, White had a proposition from one Hanauer to buy the store. Hanauer finally offered White a bonus of $ 150 for the lease, provided the former could get an extension of the lease from Bauer. Hanauer saw Bauer and reported to White that "Mr. Bauer says you haven't any lease and won't let me make this deal with you." So the deal fell through. Bauer, either before or after Hanauer saw him, heard of the negotiations between Hanauer and White and went to the store to interview White in reference to the matter. Bauer testified that he said to White: " Mr. White said, 'I couldn't stay here.' Mrs. White was sick and they couldn't stay here.'" White said, "Let me sell out so I can have my investment." Bauer told White he could "move over in the next block and sell out;" that "I give you the benefit and he (Hanauer) give you $ 100."
On July 31, 1929, Bauer served notice upon White to vacate the premises on September 1, 1929. White testified that the night before Bauer served this notice upon the witness the latter was at the store claiming that the defendants did not have any lease. The witness then said, "we have." Bauer stated, "you never have signed it." The witness replied "there is nothing there for me to sign." The witness testified that he would have been willing to have signed a lease "because he was making every effort to keep the place" but he maintained to Bauer that he already had a lease and he had not signed it because there was no place upon the lease for him to sign. He afterwards told plaintiffs' attorney that he would not make any other lease "than the one we had." He did not recall that he was ever requested to sign the lease in question....
To continue reading
Request your trial
-
Mutual Drug Co. v. Sewall
...is obligated to pay the rent only while it remains in possession of said leasehold. Dean v. Lee, 227 Mo.App. 206, 52 S.W.2d 426; Bauer v. White, 29 S.W.2d 176; Joseph & St. L.R. Co. v. St. Louis, I.M. & S. Ry. Co., 135 Mo. 173; Entroth Shoe Co. v. Johnson, 85 S.W.2d 686; Crow v. Kaupp, 50 S......
-
In re Scott's Estate
... ... Life Ins. Co., 64 S.W.2d 748, 752; Cooper v ... Gunter, 215 Mo. 558, 114 S.W. 943; Freeland v ... Freeland, 19 Mo. 345, 355; White v. McFarland, ... 148 Mo.App. 338, 128 S.W. 23, 27; Brier v. State Exch ... Bank of Macon, 225 Mo. 673, 125 S.W. 469; Badger ... Lumber Co ... [ Nevil v. Wahl, 228 Mo.App ... 49, 55, 65 S.W.2d 123; U. S. F. & G. Co. v. Goodson, ... 227 Mo.App. 456, 459, 57 S.W.2d 754; Bauer et al. v ... White et al., ... ...
-
Buddon Realty Co. v. Wallace
... ... Mansur v. Chamberlin, 162 Mo.App. 155, 144 S.W. 510; ... Board of Trade Co. v. Shannon Grain Co., 223 Mo.App ... 1199, 21 S.W.2d 913; Bauer v. White, 225 Mo.App ... 270, 29 S.W.2d 176; Frank v. Dodd (Mo. App.), 130 ... S.W.2d 210; Wollard v. Schaffer Stores Co., 272 N.Y ... 304, ... ...
-
Mortgage Inv. Co. v. Robinson
... ... viewed in a light most favorable to plaintiff. St ... Louis-San Francisco Ry. Co. v. Dillard, 328 Mo. 1154, 43 ... S.W.2d 1034; Bauer v. White, 225 Mo.App. 176, 29 ... S.W.2d 176; General Motors Acceptance Corp. v. Thomas ... (Mo. App.), 33 S.W.2d 1033; Alexander v. Alexander ... ...