Conservative Realty Co. v. St. Louis Brewing Ass'n.

• Decision Date: 20 October 1908
• Citation: 113 S.W. 229,133 Mo. App. 261
• Parties: CONSERVATIVE REALTY CO. v. ST. LOUIS BREWING ASS'N.
• Court: Missouri Court of Appeals

113 S.W. 229

133 Mo. App. 261

CONSERVATIVE REALTY CO. v. ST. LOUIS BREWING ASS'N.

St. Louis Court of Appeals. Missouri.

October 20, 1908.

1. LANDLORD AND TENANT (§ 134)—LEASES—CONSTRUCTION—USE OF PREMISES.

A lease bound the lessor not to lease "to another saloon or dramshop on said block during this lease," and that, if a saloon license could not be secured on the premises, the lease should be null and void on 90 days' notice. Held to show that the premises were let for a dramshop.

2. APPEAL AND ERROR (§ 1051)—REVIEW—HARMLESS ERROR—ADMISSION OF EVIDENCE.

Where a lease shows on its face that the premises were let for a dramshop, the admission of extrinsic evidence to show that that was the purpose, if error, is harmless.

3. LANDLORD AND TENANT (§ 37)—LEASES— CONSTRUCTION—INTENTION OF PARTIES.

In construing a lease, the court must give an effect to each clause which will promote the general purpose, if possible, in view of the language used, and to that end the intention of both parties regarding the purpose of the demise must be given great weight.

4. LANDLORD AND TENANT (§ 39)—LEASES—CONSTRUCTION.

If the language of a lease is clear, its meaning will be obligatory on the parties, though the consequences may be harsh and the stipulation contrary to the mode in which men ordinarily bind themselves by contract.

5. CONTRACTS (§ 147)—CONSTRUCTION—PATENT AMBIGUITIES.

The old rule that a patent ambiguity in a clause of a contract might render the stipulation void is no longer strictly observed, and, whether an ambiguity be patent or latent, a court will endeavor to glean the parties' intentions from the whole instrument, and the incidents attendant on its execution.

6. LANDLORD AND TENANT (§ 42)—LEASES— CONSTRUCTION—EVIDENCE.

Evidence held to show that a provision in a lease for five years that, if a saloon license should not be secured on the premises, the lease should be null and void on 90 days' notice, gave the lessee the right at any time during the term to terminate the lease on 90 days' notice, whenever it became impossible to obtain a license, and not merely in the event a first license could not be procured.

7. INTOXICATING LIQUORS (§ 58)—CONTRACTS —VALIDITY—LEASE OF PREMISES FOR SALE OF LIQUOR.

That a corporation cannot be licensed to keep a dramshop, does not make it unlawful for a brewing corporation to lease premises so as to have its beer sold in them.

Appeal from St. Louis Circuit Court; Geo. H. Shields, Judge.

Action by the Conservative Realty Company against the St. Louis Brewing Association. Judgment for defendant, and plaintiff appeals. Affirmed.

This appeal involves the interpretation of the following lease:

"This indenture made the twelfth day of October, in the year of our Lord nineteen hundred and three, between J. H. McClure of the one part and the St. Louis Brewing Association, a corporation, of the other part, witnesseth:

"That the said J. H. McClure in consideration of the rents, covenants and agreements hereinafter mentioned and reserved on the part of the said J. H. McClure, executors, administrators and assigns, has leased, and by these presents does lease to the said St. Louis Brewing Association, a corporation, building situated on the northwest corner of Twentieth and O'Fallon streets and known as No. 1301 North Twentieth street, in block No. 2302, in the city of St. Louis, to commence on the first day of December, 1903, for and during the term of five years at the yearly rental of nine hundred dollars, payable in equal monthly instalments in advance, seventy-five dollars.

"Said lessee to make all inside repairs necessary inside of building, pay water license assessed against the property.

"Any failure to pay each month's rent when due, and after a demand of the same, to produce a forfeiture of this lease, if so determined by said lessor or his successors. The lease of said tenement, or any part of it, is not assignable, under penalty of forfeiture, without the written consent of said lessor, and it is hereby covenanted that at the expiration of this lease, the said tenement and premises are to be surrendered to said lessor, his heirs, assigns or successors, in the condition received, only excepting natural wear and decay, or the effects of fire. All inside repairs deemed necessary by the lessee to be made at the expense of said lessee, with the consent of said lessor, and not otherwise.

"The said lessee, and all holding under it, hereby engage to pay the rent above reserved, and double rent for every day it or anyone else in its name, shall hold onto the whole or any part of said tenement after the expiration of this lease, or of its forfeiture for nonpayment of rent, etc.

"This tenement and premises to be kept free of any nuisance thereon, at the expense of said lessee. Said lessor agrees not to lease, rent, etc., to another brewery, saloon or dramshop, on said block, during this lease. Should said saloon license be not secured on said premises in said block, then this lease is null and void on ninety days' notice from said lessee.

"Made and signed in duplicate this twelfth day of October, 1903.

                      "J. H. McClure              [Seal.]
                      "St. Louis Brewing Association
                  "Per Henry Nicolaus, President. [Seal.]
                  "Attest: Philip Stock, Secy. [Seal of St
                Louis Brewing Association.]"
                

After the quoted lease had been executed, Henry Wuertenbacher conducted a dramshop on the premises under two licenses of six months each. Wuertenbacher had been an employé of the defendant company, and the record is doubtful as to whether he occupied the premises as a subtenant of the brewing company and was a bona fide proprietor of the saloon, or an agent of defendant. At the end of a year a petition was circulated among the property owners in the block for a third license to be issued to August Gorka, but, as the majority remonstrated against the saloon, the license was refused by the excise commissioner. Subsequent to the date of the lease, and on September 28, 1903, J. H. McClure, the lessor, sold and conveyed the premises to Amanda Twelker, who sold and conveyed them to plaintiff, the Conservative Realty Company, in June, 1905. Mrs. Twelker...