Bryan v. Vaughn, s. 10101
| Citation | 579 S.W.2d 177 |
| Decision Date | 21 March 1979 |
| Docket Number | Nos. 10101,10102,s. 10101 |
| Parties | James BRYAN and Mabel Bryan, Plaintiffs-Respondents, v. Donald VAUGHN and Doris M. Vaughn, Defendants-Appellants. James BRYAN and Mabel Bryan, Plaintiffs-Appellants, v. Donald VAUGHN and Doris M. Vaughn, Defendants-Respondents. |
| Court | Court of Appeal of Missouri (US) |
Kenneth W. Johnson, Johnson & Sweeney, Springfield, for plaintiffs-respondents-appellants.
David L. Smith, Woolsey, Fisher, Clark, Whiteaker & Stenger, Springfield, for defendants-appellants-respondents.
This case arises out of a lease entered into by James Bryan and Mabel Bryan, plaintiffs, and Donald Vaughn and Doris Vaughn, defendants. The Bryans were owners of the Lone Star Motel, located in Springfield, Missouri, and the Vaughns were the lessees of said motel. On September 7, 1973 plaintiffs filed suit by attachment, seeking to recover rent for the month of September, 1973. On September 10, 1973 defendants filed a motion to dissolve the attachment and the same was ordered dissolved the following day. Defendants counterclaimed in three counts, all of which are involved in this appeal. In Count I they claimed, inter alia, the sum of $800.00 for overpayment of rent for the months of July and August 1973; $1,000.00 for the wrongful attachment of their personal property by plaintiffs; and $5,000.00 deposited by them as security at the execution of the lease, together with interest thereon. In Count II of defendants' counterclaim punitive damages were sought for eviction of defendants from the leased premises. Count III prayed for an award of punitive damages for unlawful attachment.
The amended petition filed on plaintiffs' behalf contained five counts, only two of which are involved on appeal. Count I sought the recovery of $2,400.00 as rent for the month of September 1973; Count II alleged that $7,200.00 was due plaintiffs as liquidated damages.
Trial was to the court, a jury having been waived, and findings of fact and conclusions of law were filed. Judgment was rendered in favor of plaintiffs and against defendants on Count I of plaintiffs' petition in the amount of $250.00. Judgment on all other counts of plaintiffs' petition was entered against plaintiffs and in favor of defendants. On Count I of the counterclaim the judgment was in favor of defendants and against plaintiffs in the amount of $5,000.00, with interest of 5% Per annum from September 1, 1972. On Count II of the counterclaim judgment was in favor of plaintiffs and against defendants; and on Count III judgment was entered in favor of defendants and against plaintiffs for $275.00 actual damages, $1.00 nominal damages and $250.00 punitive damages. Cross appeals were filed with this court. We affirm.
The trial court found that a landlord-tenant relationship was created by the written lease agreement between the parties; that defendants took possession of the leased premises on or about September 3, 1972; and that under the lease defendants agreed to pay as rent, $2,000.00 per month, in advance, on the first day of each month. Further, it was found that as of August 31, 1973 defendants were current on their obligation for payment of rent.
It was not until September 1, 1973 that a dispute developed between the Bryans and the Vaughns. The basis of the dispute was Paragraph 4(a) of the lease, which read: In addition to the $2,000.00 rent payment per month, and the increase in the above-quoted paragraph, the trial court found that the parties had entered into an oral agreement by which plaintiffs would provide furniture for the new rooms for which defendants would pay $100.00 per month rent. Thus, the maximum amount due from defendants on September 1 would have been $2,500.00.
It was undisputed that defendants paid $400.00 rent under Paragraph 4(a) for each of the months of July and August 1973. On the first day of September, 1973, defendants tendered a check for September rent in the amount of $1,700.00, which was refused by plaintiffs. Defendants' contention was then, as it is now, that $800.00 was properly deducted from the September rent because they had not owed the $400.00 they paid under Paragraph 4(a) in July and August, as all seven units had not then been completed and ready for occupancy. The seven units referred to in Paragraph 4(a) consisted of two groups of rooms: (1) five rooms which were completed by July 1, 1973 about which there is no controversy, and (2) two basement rooms which did not have private baths and which were used for storage. It was the two basement rooms which defendants allege were never completed in accordance with the lease.
On September 1 or 2, 1973, plaintiff Mr. Bryan told defendant Mrs. Vaughn not to rent any more rooms, but at least one room was rented thereafter. At some point on September 2, plaintiff Mr. Bryan pulled a backhoe across the driveway to the leased premises; a sign placed on the backhoe read: "Motel closed, lease not paid." The defendants rented a truck on September 4 in which they loaded their personal belongings. These personal effects were attached along with other personal property when this suit commenced on September 7, 1973.
The judgment of the trial court is attacked in several respects by the two parties. The first two points relied on by plaintiffs involve the attachment of defendants' personal property, and are combined in defendants' brief for the purpose of argument. Plaintiffs' third and fourth points are likewise argued together, and they relate to those portions of the trial court's judgment concerning the legal effect of defendants' failure to tender $2,500.00 as rent on September 1. Defendants' points relied on attack the judgment on the ground that the trial court's decision on Counts I and II of the counterclaim rested on an erroneous finding that defendants had defaulted in the payment of rent. We shall discuss the points in the order just set out.
The plaintiffs refer us to the early case of Chamberlain v. Heard, 22 Mo.App. 416 (1886), which they believe to stand for the proposition that a landlord is entitled to his lien for rent if some statutory ground exists, "without regard to whether he believes that he is in jeopardy of not getting paid." Chamberlain, in fact, does not go so far; it states that the requirement of the statute of an affidavit stating the landlord's belief that he is in danger of losing his rent does not present an issuable fact so that such belief must be proved to sustain the attachment. But this is much different from a statement that attachment lies "without regard to" the plaintiff's belief that he will lose his rent unless the attachment issue. § 441.240, RSMo 1969, requires plaintiff to make an affidavit averring such belief, and we cannot believe the Chamberlain case was meant to encourage the swearing of false affidavits.
As recognized by Heidemann v. Hellrung, 220 S.W.2d 737, 738 (Mo.App.1949), "(t)he purpose of the statute authorizing attachment when the tenant intends to remove his property from the premises is To secure to the landlord the payment of his rent." (Emphasis ours). If the collection of rent is not endangered, and such fact is shown, the attachment should be dissolved. Whether actual or intended removal of property from leased premises will endanger the landlord in the collection of his rent is a question for the trier of fact. Morris v. Hammerle, 40 Mo. 489 (1867), Kleun v. Vinyard, 38 Mo. 447 (1866). In the case before us the trial court, sitting as the trier of fact, found that "the attachment of defendants' personal property was unlawful and not made in good faith, but was malicious in that, at the time the attachment was made, plaintiffs had in their possession $5,000.00 belonging to defendants, plus one year's interest, which had been deposited as security for their performance of the lease agreement, and even under plaintiffs' interpretation defendants owed them only the sum of $2,500.00." There is substantial evidence to sustain this finding. No danger of loss of rent existed in fact, and the attachment was properly dissolved; this answers plaintiffs' first point. Further, as to the second point relied on by plaintiffs, the trial court's determination above rested on sufficient evidence and the imposition of damages for wrongful attachment under Count III of defendants' counterclaim was therefore proper.
We now turn to a discussion of plaintiffs' third and fourth points. Point III charges the trial court with error in its judgment on Counts I and II of the amended petition; the award of $250.00 to plaintiffs...
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