Craig v. Donnelly

• Decision Date: 24 December 1887
• Citation: 28 Mo.App. 342
• Parties: CORYDON F. CRAIG, Appellant, v. BERNARD DONNELLY et al., Respondents.
• Court: Kansas Court of Appeals

28 Mo.App. 342

CORYDON F. CRAIG, Appellant, v. BERNARD DONNELLY et al., Respondents.

Court of Appeals of Missouri, Kansas City.

December 24, 1887

APPEAL from Jackson Circuit Court, HON. TURNER A. GILL, Judge.

Reversed and remanded.

Statement of case by the court.

This is an action of forcible entry and detainer, begun before a justice of the peace, and removed by certiorari to the circuit court. At the close of the plaintiff's case a demurrer to the evidence was sustained and defendant appeals. It appears from the testimony that the controversy is over the possession of the " Gillis Opera House" in Kansas City; that plaintiff entered into the possession of the property under the following written paper: " This agreement, made and entered into this, the fifth day of September, 1883, by and between Bernard Donnelly and Francis M. Black, executors of the last will of Mary A. Troost, and William S. Gregory and John Campbell, trustees under said will, parties of the first part, and Corydon F. Craig, party of the second part; witnesseth: The parties of the first part do hereby constitute and appoint said second party general business manager of the Gillis Opera House, at Kansas City Missouri, for a period of five years, with the right to make contracts with companies and to employ assistance in his own name and not in the name of the parties of the first part, or any of them; said party of the second part takes charge and control and possession of the opera house (not including the storerooms), and agrees to conduct the business therein for which it has been constructed, with such attractions and entertainments only as are adapted to and approved by first-class opera houses; to employ and pay, himself, all help and assistance needed and required in the conduct of such business, and pay, himself, all expenses, including fuel, gas and water bills, in the conduct of such business to take all needful care and caution for the protection and preservation of the house, its machinery, fixtures, and furniture of every description, and to that end will keep some suitable person or persons in and about the house at all times when fire or lights are kept therein. He is not required to insure the buildings or apparatus, but will do all such things in the way of care and precaution against fire that good responsible insurance companies may require to be done. He is to have full and complete control of the house, run and manage the same for himself and in his own name, with these limitations, that is to say: He is to consult with the parties of the first part, or some of them as to the class of attractions, the percentage allowed to companies and persons using the house, the method of selling tickets, the person or persons employed by him to handle the moneys, and the number of deadheads allowed, and as to all of these things mentioned in these limitations the parties of the first part are to have a superintending control and the right of final decision. It is agreed that the parties of the first part shall have thirty-three and one-third per cent net, after deducting the percentage and amount going to companies, person, or persons giving the entertainment, to be paid to them daily, of the entire proceeds of the opera house, and of the moneys taken in on account of the same, and the remainder shall belong to said party of the second part. The party of the second part will pay all help promptly, and pay the same in full at the end of each and every week, and the failure to comply with these provisions with respect to the payment of bills and help shall, at the option and election of the parties of the first part, render this contract void, and the party of the second part will, within thirty days of this date, give to the parties of the first part a bond with good security, in the sum of one thousand dollars, for the faithful performance of these provisions with respect to payment of help and expenses of the house. The executors agree to proceed with all reasonable dispatch with the completion of said house, and complete and furnish the same as now contracted and contemplated. Any new and additional improvements which the parties of the first part deem advisable to make shall be made at their expense, but the said party of the second part agrees to keep the house, scenery, apparatus, and fixtures in good repair at his own expense, he not being liable to repair damages done by the elements without his negligence. The trustees and executors reserve absolutely for their own use box number one and four seats in the auditorium at all times. If the tenants in the storeroom desire to heat by steam they shall make their arrangements therefor with said second party and pay him a reasonable compensation for the heat. It is understood that the executors are in debt on account of building and furnishing the house, and every reasonable effort will be made to discharge the debt as fast as possible, and until that is done the executors are to be taken and regarded as parties of the first part, and after that the trustees alone. Should said house be destroyed by fire, wind, water, or lightning, or thereby become so damaged as to be wholly unfit for the purposes of an opera house, then this agreement shall be at an end on all hands unless continued in force by subsequent agreement."

The bond provided for in said writing is as follows: " Know all men by these presents, that we, Corydon F. Craig, as principal, and H. H. Craig and Jas. C. Dunn, as his securities, are firmly held and bound unto Bernard Donnelly and Francis M. Black, executors of the last will of Mary A. Troost, and unto William S. Gregory and John Campbell, trustees under said will, and unto each and all of them, jointly and severally, in the sum of one thousand dollars, for the payment of which, well and truly to be made, we do hereby bind ourselves, our heirs, executors, and administrators, which said obligation is upon this consideration; that, whereas, said Craig has been given the charge and management of the Gillis Opera House, and is to run and manage the same for himself and in his own name; and he has agreed to pay all help promptly, and pay the same in full at the end of each and every week, and all other expenses of said house he agrees to pay monthly. Now, if the said Craig shall faithfully comply with, perform, and carry out these agreements, each and all of them above set forth, then this obligation is to be void, otherwise to remain in full force and effect. This bond is made pursuant to said agreement, which is in writing and dated fifth of September, 1883, and is not to affect any of its provisions, but is in compliance therewith. In testimony whereof, we have hereunto subscribed our names and affixed our seals this the twenty-eighth day of September, A. D., 1883."

The evidence showed that plaintiff occupied and run the house for three years, and until he was forcibly put out by defendants; that he hired the necessary servants, engaged and exhibited theatrical and other companies, during all this time. Plaintiff stated in his testimony that he took actual possession and control of the house on September 10, 1883, and that, in the summer of 1886, he went to New York, as was his custom, to engage companies for the ensuing season; that he had control and possession of the house at that time, and left his brother in charge, to act for him in his absence; that, having heard of some dissatisfaction on the part of defendants, and that they contemplated some sort of action, he went to one of them and asked if it was true, stating that if it was, he would not go to New York as he intended, but would stay and " fight it out; " that he would not go if he was to have any trouble, but would remain and " fight; " that, being assured nothing was contemplated by defendants, he left; on departing for New York he placed his brother, who had been in his employ for some two years, in charge. Other testimony showed that during plaintiff's absence, defendants gave notice of the termination of the agreement, by leaving it with one of the servants in the building, who handed it to plaintiff's brother; that, on the same day, defendants came in and demanded of the brother that he leave the house, which demand was refused, and instructions given to the servants not to get out, unless they were " dragged out or put out by law; " that defendants returned again the same day and said to plaintiff's brother that they had decided to take charge of the house; that he was laying himself liable to a fine and imprisonment, and in various other ways tried to intimidate him; that he told them he would not go out unless he was put out by force; that, finally, defendants took out a warrant for his arrest, and had him arrested and taken out by an officer. The complaint was, as is stated by the witness, " that they were in fear of their lives; that I was armed with a deadly weapon, and had taken forcible possession of the house; " that he gave bail, and, on returning to the house, found that new locks had been put on and that the doors were locked against him.

CRITTENDEN, MCDOUGAL & STILES, for the appellant.

I. The agreement under which plaintiff took possession and control was, in effect, a lease. At all events, it invested him with the right of possession. Mason v. Clifford, 4 F. 177; Fiske v. Mf'g. Co., 14 Pick. 491; Offerman v. Starr, 44 Am. Dec. 211; Rooks v. Moore, 57 Am. Dec. 569; Stanley v. Hotel Co., 29 Am. Dec. 485; Porter v. Merrill, 124 Mass. 534; McHose v. St. Louis F. I. Co., 4 Mo.App. 514; Jolly v. Single, 16 Wis. 298.

II. But whether a lease or not, the writing certainly invested the plaintiff with the right of possession. And in any view his actual possession shielded him from invasion. Rev. Stat sec....