Blake v. Shower

• Decision Date: 09 June 1947
• Docket Number: 40161
• Citation: Blake v. Shower, 202 S.W.2d 895, 356 Mo. 618 (Mo. 1947)
• Parties: David R. Blake and Betty Hammel Blake, Co-Partners, d.b.a. the Continental Development and Engineering Company v. Conrad Shower and Eva Shower, Appellants
• Court: Missouri Supreme Court

202 S.W.2d 895

356 Mo. 618

David R. Blake and Betty Hammel Blake, Co-Partners, d.b.a. the Continental Development and Engineering Company v. Conrad Shower and Eva Shower, Appellants

No. 40161

Supreme Court of Missouri

June 9, 1947

Appeal from Circuit Court of City of St. Louis.

Transferred to St. Louis Court of Appeals.

Edward K. Schwartz for appellants.

G M. Rebman for respondents.

Van Osdol, C. Bradley and Dalton, CC., concur.

OPINION

VAN OSDOL

Action instituted by plaintiffs for specific performance of an alleged agreement whereby defendants were to accept plaintiffs as tenants of the first floor and basement of a fivestory building in St. Louis, and for other relief. The trial court found "plaintiffs herein became vested with an interest in the (described) real estate . . . and more particularly with an interest in and to the first floor and basement in said property for a period of two years starting from February 21, 1945, at a rental of $ 250.00 per month, and ending February 20, 1947, all in accordance with that certain memorandum of agreement dated the 20th day of February, 1945 (Plaintiffs' Exhibit 6)." The trial court ordered defendants to specifically perform the agreement by giving plaintiffs peaceable possession of the first floor and basement, on condition plaintiffs pay rental as set out in the agreement. The trial court by its decree further adjudged an adjustment of rental moneys to the sum of $ 250 per month, rendering judgment for plaintiffs in the sum of $ 150, an excess amount paid as rental, and enjoined defendants from further prosecuting actions to recover rent in sums greater than $ 250 per month. Defendants have appealed.

The evidence shows plaintiffs, who were originally the owners entered into a contract under date of January 6, 1945, to sell the building to defendants. Pending the consummation of the contract by the delivery of plaintiffs' warranty deed, dated February 20, 1945, plaintiffs became desirous of continuing in possession of portions of the building as tenants of defendants and negotiated with defendants with the view of procuring a lease. Plaintiffs were residents of Detroit, and negotiations were carried on, at least in part, by correspondence between plaintiffs and defendants' agent at St. Louis. On the day after plaintiffs conveyed the title to defendants, the defendants' agent mailed plaintiffs the alleged "agreement," Plaintiffs' Exhibit 6 (dated, as stated, February 20, 1945), signed by defendants. This exhibit, in so far as its language is material herein, reads as follows,

"In consideration of your delivering to my Agent, T. J. Mullin of Mullin-Walters-Realty Co., the Warranty Deed properly signed by Mr. David R. Blake and his Wife, covering (described) property . . . the undersigned agree to accept your Company, as a tenant, covering the first floor and basement in the above described building, for a period of Two (2) years, starting from February 21st, 1945, you to pay a rental of $ 250.00 per month . . ."

It is contended by defendants-appellants, (1) the agreement is unilateral, lacking in mutuality of obligation and unenforceable; (2) considered as an instrument of lease, the agreement is unenforceable because of the provisions of Section 3352 R.S. 1939, Mo. R.S.A. sec. 3352, since the instrument is unsigned by plaintiffs; (3) properly, the agreement should be construed with documents enclosed with it when mailed to plaintiffs and, if so construed, the agreement required plaintiffs and defendants to execute an enclosed form of written instrument of lease; (4) and, even though a tenancy for years became vested in plaintiffs, the tenancy was subsequently abrogated and terminated by the mutual consent of the parties. On the other hand, it is contended by plaintiffs-respondents that Plaintiffs' Exhibit 6, when considered with other writings introduced into evidence, "constitutes a present contract of renting" and creates an estate in land; and that under the evidence there has been no voluntary abandonment of the premises by plaintiffs, nor has there been a termination of the tenancy by mutual consent.

From these general statements of the issues, of the facts, of the contentions of the parties, and of the trial court's decree, it seems to us the controversy herein involved is on the question whether plaintiffs have the rights of ownership of a leasehold estate (an estate for years) in defendants' land, which rights a court of equity should recognize and enforce by decree.

Defendants-appellants, in making a statement in their brief of the grounds on which the appellate jurisdiction of this court is invoked [as required by Supreme Court Rule 1.08 (a) (1)], have said this court has jurisdiction of the appeal because the case involves title to real estate. Plaintiffs-respondents have not challenged this court's jurisdiction of the appeal; nevertheless, before reviewing the contentions of the parties upon the merits of the appeal, we have the duty of examining the record to determine this court's jurisdiction of the appeal, whether jurisdiction is challenged or not. Fanchon & Marco Enterprises v. Dysart, Mo. Sup., 189 S.W. 2d 291; Harrell v. Surface, 349 Mo. 370, 160 S.W. 2d 756.

It has been held that an action involving the ownership of an undivided interest in a leasehold for a term of years in real estate is not a case involving title to real estate within the meaning of the constitutional provision (Section 5 Amendment of 1884, Article VI, Constitution of Missouri, 1875; see now, Section 3, Article V, Constitution of Missouri, 1945) giving ...