Botto v. James

• Decision Date: 08 March 1948
• Docket Number: 40185
• Citation: 209 S.W.2d 256
• Parties: Joseph Botto, Respondent, v. Ella James, Appellant
• Court: Missouri Supreme Court

209 S.W.2d 256

Joseph Botto, Respondent, v. Ella James, Appellant

No. 40185

Supreme Court of Missouri, First Division

March 8, 1948

From the Circuit Court of St. Louis County, Civil Appeal, Judge Fred E. Mueller

Affirmed

OPINION

Dalton C.

Action by the lessee of described premises in St. Louis county to enjoin the lessor's alleged interference with the lessee's possession and use of the demised premises, and for other equitable relief, with a cross action in equity by the lessor against the lessee (1) to establish that the lessee had theretofore forfeited all rights under the lease; (2) to cancel the lease, require the surrender thereof and the surrender of the possession of the premises described therein: (3) to recover $10,000 compensatory damages for alleged breaches of the terms of the lease: and (4) for other and further relief in the premises.

Both actions involving alleged violations of the same lease were tried to the court at the same time without any attempt to limit any part of the evidence to the issues raised by the pleadings on either the action or cross action. Affirmative equitable relief was denied to both parties, both actions were dismissed and the costs were taxed against the plaintiff. Defendant has appealed from the judgment and assigns error on the finding against her on her cross action.

The described premises included West Lake Amusement Park together with a dance hall, refreshment stand, scooter building, skee-ball building, shooting gallery, fun house Gypsy fortune teller building, summer skating rink building, swimming pool and locker rooms, office building, water ride building, shelters and other improvements.

The buildings were wooden structures of park type. Some of them were mere roofs supported by upright posts. Some had roofs and floors without siding, while some had roofs and siding without floors. Others, with roofs and floors, were enclosed. Some had cement foundations, while others rested on blocks. In some cases the sills or posts rested upon or were very close to the ground. The buildings had various types of roofs, such as tar paper, tin, roll roofing, sheet metal and corrugated iron. Where corrugated iron roofing was used, the sheets were laid upon rafters without sheeting or other support. The different improvements were constructed at different times, but most of them were built between 1923-1926. The office building was built in 1931.

The lease was executed on August 11, 1941 and provided for a ten year term, from January 14, 1942 to January 14, 1952, with an option for a further period of ten years. The rental provided was $135 per month for the first five years, with increased rentals thereafter. The lessee was to pay the annual taxes assessed against the leased property up to $450 per year, and the additional taxes "caused by the erection of new buildings by lessee or by any sublessees, or concessionaires."

Other pertinent provisions of the lease, lettered for our own convenience, were as follows: (A) "The said lessee hereby covenants and agrees * * * that he will pay * * * double rent for every day he or any person or persons in his name or under him shall hold on to said premises or any part thereof after the expiration, cancellation, or termination of this lease; that he will not use the said premises nor suffer the same to be used for any business other than an amusement park, nor any purpose or proceeding prohibited by law or ordinance thereof, or by the terms hereof; that he will not, without the written consent of lessor, either assign this lease or any interest therein, or sublet said premises or any part thereof; that he will keep the said premises, including plumbing, in good order; keep the sewers unobstructed, and make as heretofore provided all repairs necessary to keep the said premises in good order and condition during said term, including repairs to the roof, gutters, and downspouts, and all other repairs of said premises; that he will keep the said leased premises clean, and remove therefrom all ashes, dirt, filth, and rubbish of every kind whatever; * * * (B) That at the end or other sooner termination of this lease, he will surrender and deliver up to said lessor, her assigns, or legal representatives, the said premises hereby leased and every part thereof, peaceably and quietly, in as good order and condition as when received, excepting natural wear and decay and the effects of fire or the elements or other matters over which said lessee has no control; * * * (C) The said lessee further agrees that the said lessor, or her legal representatives, may at all reasonable hours enter into said premises for the purpose of examining the condition thereof, * * * without hindrance or molestation * * *. (D) Lessee agrees to take the buildings in their present condition. * * * (E) Any buildings, rides, etc., erected respectively by the lessee or any sub-lessee, or concessionaire, may be removed by them at the termination respectively of this lease or any sub-lease. (F) Any continued violation by said lessee, or those under him, of any of the covenants, agreements or stipulations herein contained, after thirty (30) days' written notice, shall produce and work a forfeiture of this lease, if so determined by said lessor by notice in writing, which notice may be served upon said lessee by delivering to him a copy thereof or by posting a copy of such notice upon some conspicuous part of said premises. (G) No waiver of any forfeiture by acceptance of rent or otherwise shall waive any subsequent cause of forfeiture. (H) This lease does not cancel the lease between James C. E. James and Ella James, his wife, and the Frank Amusement Company dated January 15, 1939, and renewed for a period of five (5) years. The two leases are to run concurrently until the expiration of the first lease, and nothing herein shall be construed to release Joseph Botto from complying with the terms of his contract with the executors of Frank Guyton. * * *"

In his petition, filed September 27, 1945, the respondent alleged the execution of the above lease, referred to particular provisions therein, and charged that appellant had interfered with respondent's possession and use of the demised premises and had appropriated an electric cable, hereinafter mentioned. Respondent prayed that appellant be enjoined from using any portion of the premises; that she be required to return the electric cable; that she be prohibited from visiting the park for inspection purposes, except at times specified by the court; and that she be restrained from harassing appellant, his associates and employees.

On October 11, 1945, the appellant gave written notice to respondent that she had declared a forfeiture of the said lease, effective 30 days thereafter. No rent was accepted after September 1945. The grounds upon which the forfeiture was declared were fully stated in the notice and were restated in appellant's answer and cross complaint. Amended pleadings were filed on January 29, 1946. Appellant admitted the execution of the lease, as pleaded, but denied all other allegations of the petition.

In her cross action, appellant charged: That respondent, in violation of the provisions of the lease (subdivision "A", supra), has "suffered and permitted the premises to be used for a business other than an amusement park, has countenanced its use for purposes forbidden by law, and has sublet a portion of said premises without obtaining the written consent of defendant thereto, in the following particulars; that a large portion of said premises was without the consent of defendant sublet * * * (for farming purposes); * * * that during the winter season he rented, over the protests of defendant, a room under the dance-hall to a lodger * * * and similarly during the winter season rented the skating-rink building for living quarters to a lodger who * * * created a very dangerous fire hazard; that he rented a portion of said premises to a person who parked a trailer thereon and lived in the same on said premises; that the use of said premises was invited, countenanced and permitted by plaintiff for * * * unlawful games of chance expressly forbidden by law, and that in addition to the uses, subletting and renting of the premises as above set forth, he leased, without the written consent of defendant, the skating-rink on said premises to one Carl Trippi.'

Appellant further charged that respondent had after repeated notices and demands, failed and refused, "(a) To repair and replace banister on West side of porch and the exit steps to the dance hall. (b) To repair the down-spouts and gutters on all the various buildings; (c) To repair the uprights and supports in the fun house and rotted posts around 'Gypsy fortune teller stand.' (d) To repair the pavilion roof and the roofs on the fun house, skee-ball alley, refreshment stand and the various other buildings mentioned in said lease. (e) To repair and replace the supporting columns and rotted wooden supports of the said roofs on the said buildings. (f) To keep the plumbing in good repair and especially the two toilets in the men's room under the fun house. (g) To keep the sewers unobstructed. (h) To keep the premises clean. (i) To remove from said premises all broken glass, ashes, dirt, filth and rubbish of every kind. (j) To repair and replace the bandstand in the dance hall. (k) To replace the broken windows in the dance hall building around the ladies' and men's toilets, the locker rooms and elsewhere throughout the various buildings. (l) To repair open cracks in swimming pool. (m) To repair and replace floor in Penny Arcade. (n) To repair the ceiling in the lunch stand over the grill. (o) To repair and replace floors in rooms under dance hall."

That in...