Carbonetti v. Elms

• Decision Date: 01 April 1924
• Docket Number: No. 18341.,18341.
• Citation: 261 S.W. 748
• Parties: CARBONETTI v. ELMS
• Court: Missouri Court of Appeals

261 S.W. 748

CARBONETTI v. ELMS

No. 18341.

St. Louis Court of Appeals. Missouri.

April 1, 1924.

Rehearing Denied May 10, 1924.

Appeal from St. Louis Circuit Court; Harry A. Hamilton, Judge.

"Not to be officially published."

Action by Frank Carbonetti against Cathryn Elms. Judgment for plaintiff, and defendant appeals. Reversed.

John C. Robertson, of St. Louis, for appellant.

Chilton Atkinson and Frank C. O'Malley, both of St. Louis, for respondent.

SUTTON, C.

This is an action of unlawful detainer to recover the possession of a store and. flat located at 5387 Arsenal street, in the city. of St. Louis. It is charged in the complaint that the defendant willfully and without force holds possession of said premises, after the termination of the time for which they were demised or let to her, and after demand made in writing for the delivery of the possession thereof. It is further charged that the plaintiff has sustained damages by reason of the unlawful detainer in the sum of $500, and that the value of the monthly rents and profits of the tenements is $100, and judgment is prayed for restitution of the premises, and for damages, and the value of the monthly rents and profits.

On July 7, 1920, plaintiff and defendant entered into a written lease duly executed by the parties, by which the premises were leased to defendant for a term of five years, commencing September 1, 1920, and ending August 31, 1925, at a rental of $3,600 for the full term of the lease, to be paid in equal monthly installments of $60 payable on the first day of each month during the term of the lease. As an additional rental it was agreed that defendant would pay plaintiff on demand one-half of the cost of coal used to heat the entire building at 5387-89 Arsenal street. It was agreed that defendant would not use the store to retail confections, sporting goods, soft drinks, or. stationery" There was a provision in the lease entitling the lessor to forfeit the lease for failure on the part of the defendant to pay the rent reserved in the lease as and when the same became due and payable.

In the spring of 1921 plaintiff undertook to forfeit the lease, claiming as ground for such forfeiture that the defendant was using the store to retail merchandise in competition with plaintiff, in violation of her covenant, and an unlawful detainer suit was brought to dispossess her. The suit was brought about March 1, 1921, and remained in court until February 27, 1922, when it was voluntarily dismissed by plaintiff. During the pendency of the suit the defendant was at all times willing to pay the rent as it fell due, and frequently tendered to do so, but the plaintiff refused to accept it. Immediately after the suit was dismissed the defendant's attorney informed the plaintiffs attorney that the defendant had the money ready for the payment of the rent due, and requested to know if the plaintiff would accept it, and was told by plaintiff's attorney that he had not made up his mind about the course he would take, but would, see the defendant's attorney later, and talk over with him a possible compromise which would settle the matter of acceptance of rent. Afterwards defendant's attorney twice called plaintiff's attorney by telephone, asking when the plaintiff was going to accept the rent, and was told by the plaintiff's attorney that he had not had time to give the matter sufficient consideration to advise his client in, the premises, but would take the matter up as soon as possible and come to some conclusion concerning it. Nothing further passed between the parties until April 27, 1922. On that date at 2 o'clock in the afternoon the plaintiff caused to be served upon the defendant at the leased premises a written demand for 14 months' rent at $60 per month from March 1, 1921, to May 1, 1922, amounting to $840, and for coal bill amounting to $90.48, making an aggregate of $930.48. The defendant declined to pay the rent until she saw her lawyers. On the same afternoon the defendant's attorney called the plaintiff's attorney by telephone, and a conference was arranged between them for the next day. The attorneys disagreed about what was said at that conference. The defendant's attorney testified that the plaintiff's attorney informed him that he was leaving the city that afternoon and would not be back until Monday., and asked defendant's attorney to obtain the money and pay it to him on his return to the city, and that defendant's attorney said he would do this; that plaintiff's attorney also suggested at the same time that the May rent would be due on Monday, and that defendant's attorney replied that the May rent would be ready also. Plaintiff's attorney testified that he did not say that the rent could be paid on the following Monday, and that he never consented or agreed to any delay whatsoever, and did not in any, way qualify the peremptory demand already made for the rent; that on the contrary he insisted that it should be paid at once; that the only reference made to the following Monday was that he said to the defendant's attorney, "Now don't forget that another installment of rent will become due next Monday." On the following day, April 29th, at 10:45 in the forenoon, plaintiff notified the defendant that by reason of her failure to pay the rental prescribed in the lease he had exercised his option to forfeit the lease, and demanded the delivery to plaintiff of the possession of the premises ten days from the date of the service of the notice as provided in the lease. The notice was in writing, signed by the plaintiff, and was served on the defendant at the leased premises. On the following Monday morning the defendant went to the bank, and withdrew sufficient money to meet plaintiff's demand, as well as the additional rent for the month of May which was then due, and delivered the money. to her attorney. The defendant's attorney thereupon called at the office of the plaintiff's attorney, and was advised that plaintiff's attorney was out of the city, and that it was not known when he would return. The defendant's attorney thereafter telephoned the office of plaintiff's attorney several times each day until May 5, 1922, and was advised that the plaintiff's attorney was still out of the city, and that it was not known in the office when he would return. He finally succeeded in the afternoon of May 22d in reaching the plaintiff's attorney by telephone, and informed him that he had the rent money due the plaintiff, and that he had had the money ready since May 1st, in accordance with the arrangement made with plaintiff's attorney on April 28th. Plaintiff's attorney denied having made any such arrangement, and declined to have any further dealings with defendant's attorney concerning the matter. On the following day, May 6th, the defendant's attorney tendered to the plaintiff $840 being the amount of accrued rent due from March 1, 1921, to May 1, 1922, and the sum of $93.48, being the amount of the coal bill, and the additional sum of $60, being the rent due under the terms of the lease for the month of May, 1922. The plaintiff declined to accept the money tendered.

Thereupon the plaintiff brought this action before a justice of the peace. The cause was removed to the circuit court by certiorari, where it was tried before the court sitting as a jury on July 6, 1922. At the trial defendant tendered to plaintiff $900, being the rent due from March 1, 1921, to July 1, 1922, $60, the amount of rent due for the month of July, 1922, and $90.48, being the coal bill incurred by plaintiff under the lease for heat furnished the premises occupied by defendant. The tender was refused by plaintiff. Thereupon the amount so tendered to plaintiff was tendered and paid into court. The court took the cause under advisement, and on October 4, 1922, gave judgment in favor of the plaintiff for restitution of the premises, for $576 (double the amount found by the court) as damages, for $120 per month (double the amount found by the court) for rents and profits from and after judgment until restitution be made, and also for the sum of $030.-48 as rent accrued to May 1, 1922, and coal bill. From this judgment the defendant appeals.

The question for decision here is whether or not under the facts disclosed by the record the plaintiff was entitled to a forfeiture of the lease under which the defendant holds the premises in suit.

It is the well-established rule of the common law that to authorize a forfeiture of a leasehold estate for nonpayment of rent demand must be made for the payment of the rent precisely on the day when the rent becomes due, and for the precise amount due, and the adjudicated cases show that the common-law rule is in all respects fully recognized by the American courts with much unanimity. Smith v. Whitbeck, 13 Ohio St. 471, loc. cit. 482; Byrane v. Rogers, 8 Minn. 281, loc. cit. 282 (Gil. 247); Camp v. Scott, 47 Conn. 300, loc. cit. 374; Woodward v. Cone, 73 Ill. 241, loc. cit. 243; Jackson v. Harrison, 17 Johns. (N. Y.) 66, loc. cit. 70; Connor v. Bradley, 1 How. 211, loc. cit. 217, 11 L. Ed. 103 ; McQuesten v. Morgan, 34 N. H. 400; Prout v. Roby, 82 U. S. (15 Wall.) 471, loc. cit. 476, 21 L. Ed. 58; Chapman v. Harney, 100 Mass. 353, loc. cit. 334; Jackson v. Kipp, 3 Wend (N. Y.) 23C, loc. cit. 232; Jenkins v. Jenkins, 33 Ind. 416, 30 Am. Pep. 220; Chapman v. Kirby, 49 Ill. 211, loc. cit. 215; Parks v. Hays, 92 Tenn. 161, 22 S. W. 3; Allen v. Dent, 72 Tenn. 679; Mining & Manufacturing Co. v. Chemical Co., 128 Tenn. 18, loc. cit. 25, 150 S. W. 1143 ; Kansas City Elevator Co. v. Union...