Charter Oak Inv. Co. v. Felker

• Decision Date: 31 May 1933
• Docket Number: No. 22376.,22376.
• Court: Missouri Court of Appeals
• Parties: CHARTER OAK INV. CO. v. FELKER.

60 S.W.2d 655

CHARTER OAK INV. CO. v. FELKER.

No. 22376.

St. Louis Court of Appeals. Missouri.

May 31, 1933.

Rehearing Denied June 13, 1933.

Appeal from St. Louis Circuit Court; John W. Calhoun, Judge.

"Not to be published in State Reports."

Action by Charter Oak Investment Company against Arthur F. Felker. Judgment for defendant, and plaintiff appeals.

Affirmed.

Banister, Leonard, Sibley & McRoberts and Earl Susman, all of St. Louis, for appellant.

Garvey & Felker, of St. Louis, for respondent.

BENNICK, Commissioner.

This is an action in unlawful detainer, brought by plaintiff, Charter Oak Investment Company, a corporation, against defendant, Arthur F. Felker. From a judgment which was entered upon a directed verdict for defendant, the plaintiff has duly appealed.

On September 22, 1930, the parties entered into a lease for the first floor west apartment in an apartment building located at 4905 Lindell boulevard in the city of St. Louis. Plaintiff was the lessor, and defendant the lessee. The term of the lease proper was for one year, commencing October 1, 1930, and ending September 30, 1931, and rent was reserved in the sum of $200 a month.

The controversy had its inception in a dispute arising regarding the rights and liabilities of the parties under the following two clauses or provisions which were inserted in and made a part of the lease:

"(1) The Lessee shall have the right to terminate said lease at any time after May 1, 1931, upon 30 days' written notice to the Lessor of his intention to terminate the lease 30 days thereafter, provided he shall by that time have completed a residence, or purchased a residence all ready for his occupancy.

"(2) In case said Lessee shall not, on or before September 15, 1931, have commenced the construction of a residence, to be occupied by him when same is completed, or purchased a residence, then this lease shall be automatically extended for a term of one (1) year from October 1, 1931, at the same rental and terms in said lease, but such extended term of said lease may be cancelled at any time after May 1, 1932, upon 30 days' written notice to the Lessor of his intention to terminate said lease 30 days thereafter, provided he shall by that time have completed a residence or purchased a residence all ready for his occupancy."

On August 26, 1931, defendant wrote plaintiff, advising the latter that, as of the following September 1st, he intended to take advantage of the above provision affording him the right to terminate the lease. Thereafter, in conversations with plaintiff's representative, defendant represented that he had acquired title to a small house in St. Louis county, his theory being that he was thereby authorized to terminate his lease by virtue of having "purchased a residence all ready for his occupancy." However, he did not have the deed available to show to plaintiff's representative as evidence of the truth of his representation; and because of that fact, and also upon the theory that even if he had purchased a small house in the county it was not his actual intention to use it for a residence, plaintiff refused to recognize the lease as terminated, but instead took the position that it had been automatically extended for a second year according to its terms.

Notwithstanding the notice which he had given of his intention to terminate the lease, defendant did not remove from the premises within the thirty-day period, but remained in the apartment, and, in fact, was still living in it at the time of the trial in February, 1932. In the controversy with plaintiff which followed, defendant argued that the lease had been terminated pursuant to his notice, and that he was holding over as a month to month tenant, while plaintiff's insistence was as we have heretofore indicated. But though the parties were in disagreement over defendant's status, the controversy was a very friendly one, and, in fact, negotiations, partly oral and partly written, were conducted with a view to the execution of a new lease with a reservation of rent at $180 a month, but with other terms and conditions more favorable to plaintiff. Indeed, the matter appeared so near a satisfactory conclusion that in December, 1931, defendant tendered plaintiff his check for $540 in payment of the rent for the months of October, November, and December at the rate of $180 a month, which check was refused and returned by plaintiff.

Negotiations failing with regard to the execution of a new lease, plaintiff, in December, 1931, filed suit in a justice's court for the rent, in the sum of $600, due under the terms of the lease for the months of October, November, and December, thus affirming its position that defendant's notice of termination had been unavailing, and that he was holding over under an extension of the original lease for a further term of one year. Defendant's deposition was thereupon taken, in the course of which he testified that he had purchased the residence in St. Louis county as he had previously stated to plaintiff's representative, and that, in his own opinion (the advice of counsel not having been sought), the lease had been canceled, and he was holding over as a month to month tenant.

Following defendant's testimony under oath that he had purchased the St. Louis county residence, plaintiff...