Clemens v. Knox

• Decision Date: 22 May 1888
• Citation: 31 Mo.App. 185
• Parties: JERE W. CLEMENS, Respondent, v. THOMAS KNOX, Appellant.
• Court: Missouri Court of Appeals

31 Mo.App. 185

JERE W. CLEMENS, Respondent, v. THOMAS KNOX, Appellant.

Court of Appeals of Missouri, St. Louis.

May 22, 1888

Appeal from the St. Louis Circuit Court, HON. JAMES A. SEDDON Judge.

Affirmed.

MAURICE MCKEAG, for the appellant: The court improperly sustained the demurrer of plaintiff to part of defendant's answer. It appeared by the plaintiff's petition that as a condition precedent " the rate of rent for the extended term had to be agreed upon," and it nowhere appeared in said petition that such agreement was made. If any of the matter pleaded tendered any defence, in whole or in part, to the action, the demurrer was improperly sustained. Justice v Town, 20 Mo.App. 559; County v. Sappington, 64 Mo. 72. It was stated in the answer of defendant substantially, that Clemens induced Knox to pay six hundred dollars for improvements, etc., placed by Carroll and Levy which by the lease were only bound for rent and taxes, upon the theory that there was a lease and the right of removal of the improvements. The improvements are admitted by defendant, by his demurrer, to be of the value of one thousand dollars; that after the defendant had paid his money and been in possession he was told by Clemens he had no lease, and these improvements of the defendant were converted by Clemens to his own use. The answer also averred that Clemens and Knox agreed there was no lease, and entered into a negotiation for a new lease. All of these matters were well pleaded and a good defence. Bigelow on Estoppel, 578; Stewart v. Goodrich, 9 Mo.App. 125; Yate v. Hines, 24 Mo.App. 619; Greenway v. James, 34 Mo. 328; Cavender v. Waddingham, 2 Mo.App. 557. The memorandum signed by Clemens without fixing any rate of rent at which the premises were to be re-let for the proposed renewal term is void for uncertainty. Taylor, L. and T. [8 Ed.] p. 386, sec. 333; Pray v. Clark, 113 Mass. 283; Abeel v. Radcliff, 13 Johns. 299. The mere facts that the defendant occupied the premises and paid the rate of rent in the lease mentioned, after the expiration of the lease, do not, as a matter of law, show that there was such an agreement as provided for by Clemens in his writing. Bradford v. Patten, 108 Mass. 153. Even if there are sufficient averments in the petition to show that there was a renewal, notwithstanding that fact, the averment in the answer that Clemens, through his duly authorized agent, and the defendant Knox, in the early part of the term contemplated by the extension in 1885 and 1886, agreed that there was no lease, etc., was a good defence. Any lease under seal may be surrendered or changed by parol. Prior v. Kiso, 81 Mo. 241; Hutchinson v. Jones, 79 Mo. 496. The party paying is always at liberty to explain how, why, and in what capacity he pays and the circumstances under which the payments were made, for the purposes of repelling any implication that might be inferable from these payments. Taylor L. and T. [8 Ed.] p. 26, sec. 23. The writing signed by Clemens about the time Carroll sold, June 16, 1880, did not provide that in addition to the rate of rent for the extended term to be thereafter agreed upon, Carroll should pay taxes, assessments, etc., or comply with any of the stipulations in former lease. It fixed a minimum for the rate of rent, but no maximum, thus reserving in himself the right to do or not to do. This was no agreement as is required by section 3078, Revised Statutes. King v. Howard, 27 Mo. 21; Hug v. Van Bukels, 58 Mo. 202; City v. Gas Co., 70 Mo. 103. The writing signed by Knox at the time of the assignment only bound him to try and agree as to the rate of rent. Clemens was not bound by his writing, and as no mutual binding existed, neither was bound. Furthermore, Knox signed his writing and paid his money in the belief induced by Clemens of the existence of a lease and of the right of removal of the improvement. These were the acting motives on the part of Knox, but according to Clemens' showing, and in fact, these did not exist; hence, there was a failure of consideration. Kerr on Mistakes and Fraud, 408; Blair v. Railroad, 89 Mo. 383, 392; Yeates v. Hines, 24 Mo.App. 619. The provision in the lease relied upon by plaintiff is " to pay all assessments and taxes * * * that may be levied on or claimed * * * during the term of the lease," not that might be charged, assessed, or become a lien during the term-- assessment, etc., and levy or claimed different things. Valle v. Fargo, 1 Mo.App. 344; Waterman v. Harkness, 2 Mo.App. 494; Strohmeyer v. Zeppenfeld, 28 Mo.App. 268. The special tax bill offered in evidence was issued on the eighteenth day of December, 1886, and paid by Clemens January 27, 1887. It was not competent evidence in this case. The claimed extension expired thirty-first of December, 1886, when demanded, if ever, before the payment on the twenty-seventh day of January, 1887, there is no evidence. No suit was brought on it, and in fact, according to the provision of section twenty-five, of article six, of the scheme and charter of the city of St. Louis, it was not collectible until thirty days from demand of its payment date. The assessment and levy of a special tax is an exercise of the taxing power, and some time is given the owner of the land after the assessment is made, before a levy can be made for the enforcement of the payment of the assessment. In the general taxes an assessment is made more than a year before any penalty is attached for nonpayment. The special tax, only thirty days from demand, and as between landlord and tenant it is when the taxes may be paid without penalty is the time fixed to determine who shall be liable for them. This is the proper time, under the language of the original lease, if it was in force.

VALLE REYBURN, for the respondent: The court properly sustained plaintiff's demurrer to affirmative matter contained in defendant's answer. Dougherty v. Mattnews, 35 Mo. 520; Dunn v. White, 63 Mo. 186; Parker v. Marquis, 64 Mo. 38; Wilkerson v. Farnham, 82 Mo. 678; Taylor's Landl. & Ten. [8 Ed.] sec. 551. The amount of rental provided for the renewal period was sufficiently defined, and was established by the acts of the lessor and the assignee of the lease. Arnot v. Alexander, 44 Mo. 25; City v. Gas Co., 70 Mo. 111; Webster v. Nichols, 104 Ill. 171, 172; Hermann on Estoppel, sec. 1048, p. 1175; Insurance Co. v. Bank, 5 Mo.App. 333; S. C., 71 Mo. 58. The special tax bill, being payable December 18, 1886, at its date was " levied on, or claimed from, said lot of ground, during the term of this lease." Rev. Ord. 1887; City Charter, sec. 25, p. 368; sec. 26, p. 369. The lessee, both by payment of the former rate of rental and by payment of taxes, as by the lease provided, as well as by his prior acceptance of the assignment of the leasehold, and his entry thereunder, during the period of extension, and subsequent to the original term, precluded himself from denying, against the plaintiff, the existence of such renewal term. Insurance Co. v. Bank, 5 Mo.App. 333; S. C., 71 Mo. 58. The special tax bill bore date December 18, being thirteen days prior to the expiration of the renewal term. It then became a lien due and payable forthwith, though it bore no interest, or, perhaps, only six per cent., till thirty days had elapsed from the date of the demand for payment. This grace or indulgence vouchsafed by the city charter did not make the amount other than a demand against the property existing, and even then payable, though not then in default, in absence of demand for payment thereof. The lessor was entitled to pay this bill the date of its issuance and sue forthwith for its amount, as the bill was a burden imposed on the property by legal authority; nay, more, a cause of action accrued to him at once on nonpayment of the bill, even without payment on his own part. Taylor's Landl. & Ten. [8 Ed.] sec. 399.

OPINION

THOMPSON J.

The plaintiff, by a written lease, demised to one Carroll a lot in the city of St. Louis, for a term of two years and ten months, beginning March 1, 1879, and expiring December 31, 1881, at a rental of four hundred dollars per annum, payable quarterly in advance. The lease contained the following provision:

" That, in addition to the annual rent aforesaid, the said party of the second part, or his legal representatives, shall pay all assessments and taxes, of every description, nature or kind whatsoever, whether general or special tax, that may be levied on, or claimed from, the said lot of ground and buildings thereon by the state or city authorities, or any other legal authorities, during the term of this lease."

The lease further provided:

" It is also understood and agreed, by and between the parties hereto, that any failure on the part of the said James P. Carroll, party of the second part, or his legal representatives, in the payment of the said rent, assessments and taxes, within ten days after the same shall become due and payable, etc., shall make and create a forfeiture of the same."

" At the expiration of the term of two years and ten months, the said party of the second part agrees, for himself, his heirs and representatives, to deliver up quiet and peaceable possession of said lot of ground and the buildings thereon to said party of the first part, or his legal representatives."

" The said James P. Carroll, party of the second part and all who hold under him, hereby agree to pay double rent for every day that he or any one else in his name shall hold on to the whole, or any part of said lot of ground or buildings thereon, after the expiration of this lease or after the forfeiture thereof."

" All buildings and improvements made or erected on said lot of ground by the party of the second part, or any one claiming under him, are bound for the payment

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