Buchanan v. Louisiana Purchase Exposition Co.

• Decision Date: 11 July 1912
• Citation: 149 S.W. 26,245 Mo. 337
• Parties: VIRGINIA R. S. BUCHANAN et al., Appellants, v. LOUISIANA PURCHASE EXPOSITION COMPANY and MISSISSIPPI VALLEY TRUST COMPANY
• Court: Missouri Supreme Court

149 S.W. 26

245 Mo. 337

VIRGINIA R. S. BUCHANAN et al., Appellants, v. LOUISIANA PURCHASE EXPOSITION COMPANY and MISSISSIPPI VALLEY TRUST COMPANY

Supreme Court of Missouri, First Division

July 11, 1912

Appeal from St. Louis City Circuit Court. -- Hon. Hugo Muench Judge.

Statement. -- Plaintiffs sue on a bond executed by defendants to secure the performance of the covenants of a lease of about seventy-five acres of land, made by plaintiffs on the first day of July, 1902, to defendant, the Louisiana Purchase Exposition Company, for a term of three years. The rent reserved was $ 12,000 per year, payable in monthly installments. The contract of lease required the execution of the bond sued on before the lessee should enter into possession of the premises, and required the lessee to remove, at its own expense, all nuisances created on said lands with its permission or license, and all buildings put on them by defendants' permission or license, and all debris thereon before the end of the term; and also at the termination of the lease to deliver "the free and peaceable possession of every part of said lands" to the lessors. The contract contained a further clause binding the lessee to pay to the lessors sixty-six dollars for each and every day it failed to deliver said lands after the termination of the lease, whether by limitation or forfeiture.

The petition counts upon an alleged breach of the foregoing stipulations, claiming $ 3000 for failure of the lessee to comply with the obligation as to removal, and claiming further for an alleged breach of a covenant to surrender possession, damages in the sum of $ 9900, being sixty-six dollars per day for the 150 days after the termination of the lease during which there was a failure of delivery of the lands. The bond in suit was executed by the lessee and its codefendant in the sum of $ 50,000, and was made payable to plaintiffs in this action on condition to be void on the faithful performance of the covenants contained in the lease.

The answers of defendants were general denials, except the admission of their respective corporations. Jury was waived and the cause was submitted to the court. It appeared on the trial, that on the day of the cessation of the World's Fair (November 30, 1904) to whose use this land had been let the exposition company made a sale of all the buildings structures and materials situated on this land and elsewhere, which had been used by it for exposition purposes, to the Chicago Wrecking Company; that the purchaser of said property mortgaged it back to the exposition company to secure some deferred payments of the price; that the wrecking company took possession immediately and began the demolition of the agricultural building, which was situated entirely across the lands leased by plaintiffs to the exposition company. During the course of their work, the wrecking company received three letters from the exposition company, calling attention to the contract of the lease of the land in controversy and the provision therein as to the payment for each day the lessee should fail to deliver possession, and urging the wrecking company to expedite and conclude its work so that the lands could be surrendered as prescribed in the lease; and stating that unless this was done the exposition company would employ men for that purpose at the expense of the wrecking company; and adding, "We shall turn over the leased property to the owners thereof, and so far as the exposition company is concerned surrender complete possession" at the expiration of the lease. The wrecking company did not remove the property purchased by it before the date of the expiration of the lease to the exposition company (June 30, 1905) but continued the occupancy of said lands and the removal of property therefrom for 150 days after said date. When the wrecking company left the premises there remained thereon considerable debris and much of the foundations of the buildings, to remove which involved great expense to the lessors. On the date of the expiration of its lease the exposition company, by letter, June 30, 1905, informed the lessors that final payment of rent had been made according to the terms of the lease, and notified them that said lessee surrendered, yielded up and entirely withdrew from the possession of all parts of the land described in said lease. On the day following, July 1, 1905, the exposition company notified the wrecking company that the property in question had been turned over to the lessors, and advised it to arrange with the owners of the land for permission to move its property or to have it remain thereon. To the letter of June 30, 1905 to them, the plaintiffs replied calling the attention of the exposition company to the several clauses of its lease, and stating that there had been no delivery in fact of the premises notwithstanding what was stated in said letter to them. The exposition company did nothing further in the matter.

Upon these facts the trial court rendered judgment for $ 1200 in favor of plaintiffs as damages for the failure to remove the debris on the ground and 640 poles standing in the soil thereof, and other items. No appeal was taken from this finding. The trial court further held that the foregoing facts constituted no breach of the stipulation in the lease to surrender the premises, and that plaintiffs could recover nothing on that count of their petition. From a judgment in accordance, plaintiffs appealed.

Reversed and remanded.

Lyon & Swarts and W. M. Williams for appellants.

(1) The contracts between the exposition company and the wrecking company show the latter was to have possession of the land, and was a subtenant, at least for such time, up to June 30, 1905, as would be necessary for the removal of the structures on the land. (a) This is apparent from the language of the contracts and the conferences attending their execution. Meyer v. Christopher, 176 Mo. 580; County v. Wood, 84 Mo. 507; Pickering v. O'Brien, 23 Pa. St. 125; Heywood v. Falmer, 18 L. R. A. 49; Alcorn v. Morgan, 77 Ind. 184. (b) The construction given to the contracts by the parties is the best evidence of the meaning to be attributed to them. The letters from the exposition company demonstrate that a failure by the wrecking company to remove the buildings before the expiration of the lease would constitute a holding over by the exposition company. Myer v. Christopher, 176 Mo. 595; Rose v. Carb. Co., 60 Mo.App. 28. (c) It is apparent from the practical construction of the contract by the parties in giving the actual physical possession of the land to the wrecking company and in depriving the appellants of any opportunity to enter upon the land. Depot Co. v. Railroad, 131 Mo. 305; Dickson v. Railroad, 168 Mo. 90. (2) The possession of the land by the wrecking company, upon the termination of the lease and thereafter, is equivalent to the holding over by the exposition company, and that irrespective of the relation between them. Jones on Landlord & Tenant, Sec. 544; Kerr v. Simmons, 8 Mo.App. 431; Hughes v. Hood, 50 Mo. 353; Schilling v. Holmes, 23 Cal. 230; Mason v. Wierengo, 113 Mich. 153; Henderson v. Squire, 19 L. R. A. 601; Lubetkin v. Brewing Co., 21 Abb. N. C. 304; Sullivan v. Ringler, 171 N.Y. 593; Bacon v. Brown, 9 Conn. 334; Dimock v. Van Bergen, 12 Allen, 551; Morgenthau v. Beaton, 88 N.Y.S. 359; Brewer v. Knapp, 1 Pick. 355; Moffatt v. Smith, 4 N.Y. 126. (3) The various buildings and structures erected by the exposition company practically covered the land leased to it. The act of the exposition company in permitting all of this property to remain on the land after the expiration of the lease, and in the same condition as prior to such expiration constitutes a holding over. The law demands of the tenant, upon the termination of the lease, a delivery in fact, not theoretical, of free and peaceable possession. McAdam on Landlord & Tenant (3 Ed.), p. 90; Taylor on Landlord & Tenant, Sec. 524; Stevens v. Pautkind, 95 Mich. 145; Darr v. Barney, 12 Hun, 259; Oussani v. Thompson, 43 N.Y.S. 1061; Schuyler v. Smith, 51 N.Y. 309; Vosburgh v. Corn, 23 A.D. 147; Cavenaugh v. Clinch, 88 Ga. 610; Lubetkin v. Brewing Co., 21 Abb. N. C. 304. (4) The wrecking company was the agent of the exposition company to keep the latter's obligation to the appellant's to remove the buildings, structures and debris. Where a tenant remains in possession after the termination of the lease, either by himself or his agent, to remove property which the tenant is under obligation to remove, it is a holding over by the tenant.

Joseph H. Zumbalen and Ferris & Ferris for respondents.

(1) The record proper does not show any order of court directing the bill of exceptions to be filed and made part of the record hence there is nothing here for review but the pleadings and judgment. R. S. 1909, Sec. 2029; State v. Paul, 203 Mo. 685; Hill v. County, 195 Mo. 514; Harding v. Bedoll, 202 Mo. 634; Alt v. Dines, 227 Mo. 422; Dev. Co. v. Iron Co., 98 Va. 700; Hake v. Strubel, 121 Ill. 321; 4 Wait's Practice, 573; 15 Ency. Plead. & Pr. 340. (2) (a) By the contract of sale from the exposition company to the wrecking company, the latter acquired no interest in or right of possession to the land, but only a license to go upon the land for the purpose of dismantling and removing the buildings and other personal property. The exposition company by the terms of the contract, and as a matter of fact, retained complete possession of the demised land to the end of its term. 25 Cyc. 649; Tiedeman, Real Property, Secs. 651, 652, 18 Am. & Eng. Ency. Law (2 Ed.), 1127, 1128; Hanly v. Wood, 2 B. & Ald. 736; Lunsford v. Lead Co., 54 Mo. 426; Chynowitch v. M. & S. Co., 74 Mo. 173; F. & M. Co. v. Cole, 130 Mo. 1; Love v. Am. S....