Crow Lumber & Bldg. Materials Co. v. Washington County Library Bd., 32833

• Decision Date: 16 April 1968
• Docket Number: No. 32833,32833
• Citation: 428 S.W.2d 758
• Parties: CROW LUMBER AND BUILDING MATERIALS COMPANY, a Corporation, Plaintiff-Appellant, v. WASHINGTON COUNTY LIBRARY BOARD, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 758

428 S.W.2d 758

CROW LUMBER AND BUILDING MATERIALS COMPANY, a Corporation, Plaintiff-Appellant, v. WASHINGTON COUNTY LIBRARY BOARD, Defendant-Respondent.

No. 32833.

St. Louis Court of Appeals, Missouri.

April 16, 1968.

Motion for Rehearing or to Transfer to Supreme Court Denied

May 14, 1968.

Application to Transfer Denied July 8, 1968.

Dearing, Richeson, Weier & Roberts, Hillsboro, for plaintiff-appellant.

Schnapp, Cooper, Graham & Reid, Fredericktown, for defendant-respondent.

JOHN C. CASEY, Special Judge.

This is an appeal from a judgment by the Circuit Court of Washington County, Missouri, tried by the court without a jury. Plaintiff had sued for unpaid balance of rent allegedly due under a written lease The first and principal point relied upon by plaintiff for reversal of the judgment entered below is that: 'The lease contained no provision excusing lessee from performance in the event of fire damaging the premises, thus, rent is due for the entire term, or until the lessor found a new tenant on equally advantageous terms. The Court erred in failing so to hold.'

for 'the street level floor only' of a business building used by defendant as a county library. An accidental fire, occurring during the term of the lease, greatly damaged the building rendering it untenantable for library purposes. The lease contained no covenant concerning rebuilding in the event of destruction, nor any provision relating to termination of the lease because of fire or other damage rendering the leased premises untenantable. In the trial below, the circuit judge, in a lengthy 'Order' entered judgment for defendant. Since plaintiff's claim was for nine months rent at $275 per month, a total of $2,475, jurisdiction is properly lodged in this court.

Defendant in its brief concedes that 'The general rule of law where there is no written provision in the lease about destruction of the premises by fire or otherwise, is that the lessee continues paying the rent for the duration of the lease. * * *' Defendant further contends that 'Exception to the general rule has been noted by the courts when the lease involves part of a building and not all of the building. However, we have been unable to find any Missouri cases where this question was presented to the court. * * *'

In effect, defendant contends that the exception to the general rule is so widely recognized as to become a part of the law of this nation and that, in the absence of Missouri cases on such exception, this court should follow the weight of modern authority. Defendant therefore asks this court to rule, under the facts of this case, that, as defendant quotes from 32 Am.Jur., Landlord & Tenant, § 495, p. 406, '* * * No liability for rent subsequently to accrue under a lease of a part of a building, which includes no portion of the ground upon which the building stood, exists after the accidental destruction of the building, since there is nothing left to which the lease can attach. * * *'

On independent research we conclude that the asserted exception to the general rule of law has not been passed upon in any reported Missouri decisions and this case will be treated, in that respect, as a case of first impression in this state.

THE EVIDENCE IN THIS CASE

There was little, if any, dispute with reference to the decisive facts of this case as presented here.

Plaintiff, Crow Lumber and Building Materials Company, a corporation, owned a one story and basement building on High Street in Potosi, Missouri. The building had one large room at the street level, with a basement of the same size below. There were two separate entrances to the basement. Plaintiff entered into a written lease with defendant, dated June 1, 1964, for use of '* * * the street level floor only of the brick business building at the following location in the City of Potosi, County of Washington, State of Missouri, to-wit: All of Lot Number Eighteen (18) in Block Number Four (4) of Deanes Addition to the Old Town of Potosi, now in the City of Potosi, Missouri.' The lease provided for a monthly rental of $275.00 payable in advance, for a term beginning June 1, 1964, and ending December 31, 1966. The lease also contained a provision that 'The Lessor reserves the basement of the described building from the terms of this lease, but Lessor agrees that it will make no use of the basement of said building which would interfere with or prevent the operation of a county public library in a normal and ordinary manner. The Lessee agrees that it will make no use of said building other than for the ordinary purposes of a Missouri Public Library District.' The lease contained no provision excusing lessee from paying rent in the event of fire After execution of the lease defendant entered into possession of the street level floor of the building, paid rent monthly and operated a public library there. Plaintiff continued to occupy the basement area of the building for storage purposes, 'We stored wire, fence wire down there and some wrought iron railings.'

or other damage to the premises, nor any covenant on the part of the owner to rebuild.

Such uses of the building by the parties continued until a fire occurred on the night of March 30--31, 1965. That fire, which both parties treated as accidental, caused extensive damage to the building. Although the joists between the basement and first floor remained intact the floor and subflooring had to be replaced. The brick walls were bowed out for about a day following the fire, but the walls settled back. The windows were blown out, and the roof so badly damaged that it required complete replacement, carrying the weight on new interior posts, as well as the exterior walls. For practical purposes, after the fire, only the basement, the joists and the four brick walls constituting the shell of the street level floor of the building remained.

This court finds from the evidence that the damage to the 'street level floor only' of the building was such as to render the premises untenantable, and so extensive that the demised premises had, as a practical matter, been totally destroyed.

PERTINENT MISSOURI DECISIONS

Before quoting from the Missouri cases cited by able counsel for both parties, and those reviewed in independent research, it should be noted that, none of the reported Missouri cases pertained to a leasehold of only a part of a building. Therefore, the broad language used by the Missouri courts in such reported cases should be considered in proper context, that is, as expressions of the law where the whole building, including the land itself was a part of the leasehold.

The earliest Missouri case on the subject, Davis' Adm'r v. Smith, 15 Mo. 468 (1852) was an action for rent of a building housing a grist, sawmill and carding machine. The lessees set up the defense that at the time the lease was made the main posts of the building were rotten and gave way, shortly after entering under the lease, causing destruction of the machinery. The trial court entered a directed verdict and judgment for the lessor. In the course of the opinion the court said (l.c. 469--470):

'The distinction between a duty created by law, and one created by the party is an established principle of our law. When the law creates a duty and the party is disabled to perform it without any default in him and he has no remedy over, the law will excuse him. But when the party, by his own contract, creates a charge or duty upon himself, he is bound to make it good, if he may, notwithstanding any accident, by inevitable necessity, because he might have provided against it by his contract, and therefore, if a lessee covenant to repair a house, though it be thrown down by a tempest or destroyed by enemies, yet he is bound to repair it, and if he covenant to pay rent for a house, though it be burnt down, yet he is liable for the whole rent; * * *.'

This case is somewhat noteworthy in that the court further said, by way of dicta:

'* * * That furnished rooms, let for a particular purpose, should answer the object in renting them is not unreasonable. * * *'

In the case of Gibson v. Perry, 29 Mo. 245 (1860), the leasehold was 'a storehouse in the city of Bonneville.' Suit was brought by the owner against the defendant tenants to recover rent. The defendants set up in their answer that the quarter's rent sued for accrued after the destruction by fire of the storehouse rented by them. The court on motion of plaintiff struck out this answer. On appeal defendants contended that the tenants were not bound to 'The law of this case has been long settled, and is supported by reason as well as authority.

pay rent after the destruction of the storehouse. In affirming the action of the trial court, the Supreme Court of Missouri, after summarizing the above quoted principles in the Davis case, supra, said (l.c. 246, 247):

'* * * a lessee of premises, which are burned by fire, has no relief on an express covenant to pay rent, either at law or in equity, unless he has protected himself by a stipulation in the lease, or the landlord has covenanted to rebuild. (3 Kent, 467.)'

The case of Lincoln Trust Co. v. Nathan, 175 Mo. 32, 74 S.W. 1007 (1903), was an action by the trustees under a will to recover from the defendant lessees and their assignees the sum of $1,200 rent for the land and buildings numbered 814 and 816 North Broadway, St. Louis, for the months of April and May, 1900. The buildings were totally destroyed by fire. In an opinion vigorously criticizing the old common law doctrine, Judge William C. Marshall wrote (l.c. 1009):

'* * * It is true that the fire did not, ex vi termini, terminate the lease. It is also equally true that the destruction of the leased premises does not, as a matter of law, terminate the lease, or relieve the lessee from his obligation to pay the rent. * * * This has been the rule of law so long that it were idle to attempt to change it now, but it may be doubted if it is...