Crane v. Berman

• Decision Date: 06 July 1927
• Docket Number: No. 4257.,4257.
• Citation: Crane v. Berman, 297 S.W. 423 (Mo. App. 1927)
• Parties: CRANE v. BERMAN
• Court: Missouri Court of Appeals

297 S.W. 423

CRANE v. BERMAN

No. 4257.

Springfield Court of Appeals, Missouri.

July 6, 1927.

Appeal from Circuit Court, Jasper County; Grant Emerson, Judge.

Action by W. S. Crane against Paul Berman. Judgment for defendant in justice of the peace court, and plaintiff appealed to the circuit court. On trial anew in the circuit court there was judgment for plaintiff, and defendant appeals. Affirmed.

Roy Coyne, of Joplin, and Ryland, Boys, Stinson, Mag & Thompson, of Kansas City, for appellant.

Howard Gray, of Carthage, for respondent.

COX, P. J.

Action of unlawful detainer for possession of a certain storeroom in the city of Joplin, Mo. This suit was begun and tried in a justice of the peace court, where judgment went in favor of defendant. Plaintiff appealed, and on trial anew in the circuit court the judgment was for plaintiff under a peremptory instruction by the court. Defendant appealed to this court.

Plaintiff had leased to defendant by written lease a storeroom now in controversy for a period of five years at a rental of $175 per month payable in advance on the 1st of each month. This lease contained the following provision:

"It is further agreed that at the expiration of this lease said second party shall have the right and option to rent said building for a further term of five years upon such terms as may be agreed upon between the parties hereto at or before the expiration of this lease."

No other written lease was executed. The defendant remained in possession and paid rent at $175 per month for more than three years after the expiration of the written lease. Plaintiff, acting upon the theory that the tenancy of defendant after the expiration of the written lease was from month to month, gave defendant notice to quit. Defendant; acting upon the theory that he had exercised the option granted him in the written lease and had thereby extended his lease for another term of five years, refused to vacate. This suit followed.

Defendant, to sustain his contention that the lease had been renewed or extended for another term of five years, testified, over the objection of plaintiff, that in February before the lease expired on March 1st he spoke to plaintiff about a renewal of his lease and stated to plaintiff that he wanted it renewed on the five years' provision, and that plaintiff replied: "Let it go ahead as it is on the same rental of $175 per month." To this defendant replied: "All right." That is all that was done toward a renewal of the lease. After that defendant paid and plaintiff accepted rent at $175 per month, the same price provided in the written lease, for three years and eight months, and then plaintiff served defendant with notice to quit.

The merits of this case rests upon the proper construction to be given to the provision above set out giving the defendant the "right and option to rent said building for a further term of five years upon such terms as may be agreed upon between the parties hereto at or before the expiration of this lease." Appellant contends that this provision gave a right to him to another term of five years if he desired it and that the oral agreement between him and plaintiff, as testified to by him, by which it was orally agreed that he should continue at the same rental of $175 per month and the acceptance of rent by plaintiff at that price after the expiration of the written lease, operated to extend the renewal and hold the lease for another five years. Respondent contends that the provision in the written...