Blond v. Hoffman
| Decision Date | 16 November 1938 |
| Docket Number | 35574 |
| Parties | Abe Blond and Louis Blond, Appellants, v. B. L. Hoffman and United States Fidelity & Guaranty Company, a Corporation |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court; Hon. Emory H. Wright Judge.
Affirmed.
I J. Ringolsky, Wm. G. Boatright, Harry L. Jacobs and Ringolsky, Boatright & Jacobs for appellants.
(1) Appellants are entitled to recover the full amount of the bond. It contemplated and provided for recovery in case of forfeiture of both actual and liquidated damages in respect to the nonerected building and unperformed lease covenants. Such provisions were applicable and enforceable in the event of repudiation, abandonment and renunciation, which the evidence shows occurred here. (a) The bond provided for recovery of actual damages and also for recovery of liquidated damages in amount of $ 10,000. Under either view and the evidence, the full amount was recoverable here. (b) A contract preserving liability for loss and damages attending following and ensuing upon a forfeiture for the fault of the tenant, is valid and enforceable. Cooper v. Casco Merc. Trust Co., 186 A. 888; Liggett Co. v. Wilson, 224 Mass. 456, 113 N.E. 184; In re McAllister-Mohler Co., 46 F.2d 95; Filene's Sons Co. v. Weed, 245 U.S. 597, 38 S.Ct. 211; Gardiner v. Butler & Co., Inc., 245 U.S. 603, 38 S.Ct. 214; Irving Trust Co. v. Perry, Inc., 293 U.S. 307, 55 S.Ct. 150; City Bank Farmers Trust Co. v. Irving Trust Co., 299 U.S. 433, 57 S.Ct. 292; Schwartz v. Irving Trust Co., 299 U.S. 456, 57 S.Ct. 303; Galbraith v. Wood, 124 Minn. 210, 144 N.W. 945, 50 L. R. A. (N. S.) 1034; Pollock v. Ives Theatres, 174 Wash. 65, 24 P.2d 396; Stott Realty Co. v. United Amus. Co., 195 Mich. 684, 162 N.W. 283; Blanke Bros. Realty Co. v. Amer. Sur. Co., 297 Mo. 41, 247 S.W. 797; Sharon v. Fidelity Co., 172 Mo.App. 309, 157 S.W. 972; Producers Packing Co. v. Fisher, 221 Mo.App. 639, 283 S.W. 747; Blond v. U. S. F. & G. Co., 336 Mo. 684, 80 S.W.2d 675, 99 A. L. R. 36. (c) The petition was amended after the previous judgment was reversed and the cause remanded and new evidence was introduced showing that the lessee had abandoned, renounced and repudiated the lease and had taken bankruptcy, thereby disabling himself from performing his obligations. Title & Trust Co. v. Durkheimer Inv. Co., 63 P.2d 909; Central Trust Co. v. Chicago Auditorium Assn., 240 U.S. 581, 36 S.Ct. 412; In re Neff, 157 F. 61; Gabriel v. Brick Co., 57 Mo.App. 526; Porto Rico v. Title Guar. Co., 227 U.S. 382, 33 S.Ct. 362; Sharon v. Amer. Fidelity Co., 172 Mo.App. 309, 157 S.W. 972.
Harris & Koontz for respondents.
(1) The additional allegation of appellants' second amended petition and the additional testimony introduced in connection therewith did not present any new or materially different issues and presents no ground or reason to distinguish or change the decision heretofore rendered by this court. Title & Trust Co. v. Dierkheimer, 63 P.2d 909; Central Trust Co. v. Chicago Auditorium Assn., 240 U.S. 581; Rehkopf v. Wirz, 161 P. 285; Sheaffer v. George, 171 P. 881; In re United Cigar Stores, 83 F.2d 209; Weller v. Cronendonk, 200 P. 1025; Blond v. Hoffman, 80 S.W.2d 675. (2) The appellants cancelled and fully and finally determined the lease as of date of May 9, 1929, for the express default of nonpayment of rent and nonpayment of taxes and appellants are not entitled to recover any rent or taxes which accrued after May 9, 1929, and masmuch as there was no default for the alleged failure to erect the building provided for in the lease, the liquidated damage clause never came into effect and plaintiffs are only entitled to recover the amount of the rent accrued and the amount of taxes which accrued up to May 9, 1929, which was allowed to them by the lower court. Blond v. Hoffman, 80 S.W.2d 677; Filene's Sons Co. v. Weede, 245 U.S. 594; Gardiner v. Butler & Co., 245 U.S. 597; Producers Packing Co. v. Fisher, 221 Mo.App. 639; Jennings v. First Natl. Bank, 30 S.W.2d 1049; Blanke Bros. Realty Co. v. American Sur. Co., 237 S.W. 797; Sharon v. Fidelity Co., 172 Mo.App. 309; Smith Bill Posting Co. v. Stanton, 172 Mo.App. 40; Von Schleinitz v. North Hotel Co., 23 S.W.2d 64; Bernard v. Renard, 175 Cal. 230; Jones on Landlord & Tenant (1906 Ed.), sec. 555, pp. 916-917; Babcock v. Rieger, 76 S.W.2d 31; Schulte v. Haas, 287 S.W. 816; Waller v. Wilson, 282 Ill.App. 218; Stogop v. National Sur. Co., 207 N.Y.S. 785; Kanter v. New Amsterdam Cas. Co., 187 N.Y. 544; Michigan v. Fishel, 169 N.Y. 381; Fidelity & Deposit Co. v. Walker, 76 F.2d 115; Burns Trading Co. v. Wellborn, 81 F.2d 691.
This is the second appeal in this case. On the first appeal a judgment in plaintiffs' favor in the sum of $ 10,000 was reversed and the cause remanded. On a second trial plaintiffs obtained a judgment in the sum of $ 1843.61, and plaintiffs appealed.
Plaintiffs sued respondent, United States Fidelity & Guaranty Company, on a surety bond. The principal in the bond, B. L. Hoffman, was made a defendant, but because he had been discharged in bankruptcy the judgment was stayed as against him. For a full detailed statement of the facts see the opinion on the former appeal reported in 336 Mo. 684, 80 S.W.2d 675, 99 A. L. R. 36. A short statement will suffice for an understanding of the issues on this appeal. B. L. Hoffman leased a vacant lot from plaintiffs for a term of ninety-nine years. He agreed to pay the taxes, a stipulated sum as rental, and also agreed to erect a building upon the lot at a cost of not less than $ 30,000. The building was to be constructed within five years. Another proviso, however, required the building to be completed within one year after the commencement of construction. Hoffman defaulted in the payment of rent and taxes. On March 7, 1929, Hoffman was notified, by plaintiffs, that the contract had been breached. A part of this letter read as follows:
On May 11, 1929, Hoffman was notified that the lease had been forfeited. The letter of notification concluded as follows:
Plaintiffs then took complete possession of the premises and placed "for sale" and "for rent" signs thereon. This occurred at a time when, under the terms of the contract, Hoffman still had fourteen months in which to erect a building. No provision of the contract with reference to the erection of a building had been breached at the time defendants forfeited the lease. Th contract and bond sued on provided in substance that in case of a failure on Hoffman's part to comply with the terms of the contract with reference to the construction of the building, then, because of the difficulty to compute the damages, it was understood that plaintiffs should be paid $ 10,000, which was agreed to be liquidated damages.
We held in the former opinion that a forfeiture of a lease by the lessor, and his taking possession of the...
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