Bernard McMenamy Contractor, Inc. v. Kitchen, 48082

• Decision Date: 02 April 1985
• Docket Number: No. 48082,48082
• Citation: 692 S.W.2d 817
• Parties: BERNARD McMENAMY CONTRACTOR, INC., Plaintiff-Appellant, v. Lovelace KITCHEN, Defendant, and Alton Box Board Company, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 817

692 S.W.2d 817

BERNARD McMENAMY CONTRACTOR, INC., Plaintiff-Appellant, v. Lovelace KITCHEN, Defendant and Alton Box Board Company, Defendant-Respondent.

No. 48082.

Missouri Court of Appeals,

Eastern District,

Division Five.

April 2, 1985.

Motion for Rehearing and/or Transfer to

Supreme Court Denied June 5, 1985.

Application to Transfer Denied Aug. 7, 1985.

Hal B. Coleman, Clayton, for plaintiff-appellant.

Thomas C. Walsh, St. Louis, for defendant-respondent.

CHANNING D. BLAEUER, Special Judge.

Bernard McMenamy Contractor, Inc. (McMenamy) brought suit against co-defendants Lovelace Kitchen (Kitchen) and Alton Box Board Company (Alton) to recover for services rendered clearing a tract of land on a Mississippi River island near Harvester, Missouri. McMenamy settled with Kitchen, and the trial court subsequently sustained Alton's motion for summary judgment. From the sustention of this motion, McMenamy appeals. We affirm.

Alton owned the tract of land, approximately 500 acres, which McMenamy cleared. On March 2, 1976, Alton and Kitchen executed a written "Farm Lease and Agreement" which called for Kitchen to clear and farm the land. Several weeks later, McMenamy entered into an agreement with Kitchen to clear the land at a cost of $75 per hour per tractor. Alton was not a party to the Kitchen/McMenamy contract, nor did Alton guarantee it. McMenamy's bill for work performed under the agreement with Kitchen exceeded $222,000.

McMenamy filed this action alleging that Kitchen and Alton were partners, and therefore jointly and severally liable for payment of the bill.

It appears from the record that Kitchen was unable to pay the bulk of the debt to McMenamy. McMenamy released its claim against Kitchen in exchange for some farm equipment, which it took subject to an outstanding security interest.

Subsequent to the release of McMenamy's claim against Kitchen, the trial court sustained Alton's motion for summary judgment, implicitly finding that the relationship between Kitchen and Alton was not a partnership.

In support of its motion for summary judgment, Alton submitted affidavits of Kitchen and Alton's corporate secretary to the effect that there were no collateral agreements between Alton and Kitchen, and that their relationship was fully governed by the terms of the "Farm Lease and Agreement" executed by them. Kitchen's affidavit further stated that he entered into the agreement with McMenamy without conferring with or requesting the approval of Alton, and that he was not an employee of Alton.

McMenamy offered no counter-affidavits to controvert these facts, and conceded the accuracy thereof. Summary judgment is an appropriate remedy where there exists no doubt as to material facts, Rule 74.04, Lammert Furniture Co. v. American National Stores, 619 S.W.2d 323 (Mo.App.1981), particularly where, as here, the issue to be resolved is the construction of a contract which is unequivocal on its face. Adzick v. Chulick, 512 S.W.2d 194 (Mo.App.1974).

With this appeal, McMenamy urges that we reverse the trial court's determination that Kitchen and Alton are not partners under the terms of the "Farm Lease and Agreement," the relevant terms of which are as follows:

FARM LEASE AND AGREEMENT

WHEREAS, Alton Box Board Company ... is the owner of a certain tract of land approximately 500 acres in size ...

WHEREAS, Lovelace Kitchen (KITCHEN) desires to lease said tract of land for farming operations, ...

ALTON hereby agrees to lease to KITCHEN, and KITCHEN hereby agrees to lease from ALTON, the aforementioned tract of land under the terms and conditions stated hereafter:

1. This lease shall be for a period of five years beginning February 16, 1976, and ending December 31, 1981.

It is agreed, however, that in the event ... any "Parcel" ... fails to produce a crop for one growing season ... this lease shall be extended for that Parcel only, for one additional growing season ... In no event, however, shall the lease be extended for any Parcel beyond the seventh growing season.... [A] "Parcel" shall be deemed to mean any contiguous area of land ... of apprximately twenty (20) acres ...

2. Rental for the land shall be One Dollar for the initial five seasons, except as mentioned below. Consideration to ALTON for the rental of the land is the improvement in the condition of the soil and the land surface, the application of fertilizer, and the treatment of the land in a husbandry-like manner, all as required by this instrument. All reports and accounts submitted to KITCHEN's auditors shall also be submitted to ALTON.

When and if KITCHEN realizes a total income from the farming operation under this Lease, during the entire initial five growing seasons period of this Lease, in excess of an amount equal to the total costs and expenses ... plus One Hundred Thousand Dollars ($100,000), then additional income shall be divided equally between the Parties after payment of costs and expenses. "Costs and Expenses" are defined as KITCHEN's total cost of production for the five years, excluding therefrom, however, his own labor expended or used directly on the land. No charge shall be entered in calculating said Costs and Expenses for the use of the land by KITCHEN, or for rent to ALTON, of which there will be none.... It is the intention of the Parties that the actual cash outlay by KITCHEN for the farming of this land over the period of the initial five growing seasons shall be recovered in its entirety by KITCHEN from the farming income attributable to the land, plus an additional One Hundred Thousand Dollars ($100,000.), before ALTON shall be paid any monetary payments. However, additional profit over said amount for such period shall be divided equally between KITCHEN and ALTON.

3. During the period of this Lease, KITCHEN will be responsible for the removal of substantially all of the roots, stumps and brush from the tillable portion of the land, fertilizing, and for the planting thereof into grain crops ... A part of the treatment shall consist of the application of lime and fertilizer, weed control chemicals and other approved practices which shall be deemed necessary in the opinion of the Parties hereto and of the consultant on the land, Doane Agricultural Service, Inc., to improve the quality of the land sufficiently to meet a standard of Soil Conservation Service test for grain crop land.

4. It is agreed by the Parties hereto that Doane Agricultural Service, Inc., may be retained as a consultant in the management of the land at a cost of not less than one hundred dollars ($100.00) per month, which amount shall be paid by KITCHEN....

6. It is agreed that KITCHEN shall have the right of first refusal of any renewal of any farm rental or purchase agreement on the subject tract during the term hereof and for a period of ten years after the termination of the initial term that is until February 15, 1991....

8. KITCHEN shall have no right to sublease all or any part of the subject property without the express written permission of ALTON.

9. KITCHEN shall not be...