Crow v. Kaupp

• Decision Date: 13 June 1932
• Docket Number: No. 30474.,30474.
• Citation: 50 S.W.2d 995
• Parties: CROW v. KAUPP et al.
• Court: Missouri Supreme Court

50 S.W.2d 995

CROW v. KAUPP et al.

No. 30474.

Supreme Court of Missouri, Division No. 1.

June 13, 1932.

Appeal from Circuit Court, Vernon County.

Action by C. D. Crow against George A. Kaupp and another. From the judgment, plaintiff appeals.

Reversed, and cause remanded.

A. J. King, of Nevada, Mo., and E. H. Foster, of Amarillo, Tex., for appellant.

Hallett & Hallett, of Nevada, Mo., for respondents.

RAGLAND, J.

This is an action by a lessor's grantee against the assignee of the lessee to recover rents which accrued after the assignee had reassigned and vacated the demised premises, together with the remainder of the rents reserved under the lease. The circuit court sustained a general demurrer to the petition; plaintiff declining to further plead, judgment was entered on the demurrer. The cause comes here on his appeal from such judgment.

The facts necessary to an understanding of the questions presented, to be gathered from the petition, may be briefly stated.

One McMurtry was the owner of a three-story hotel building and the ground on which it was located, in the city of Amarillo, Tex. On the 12th day of April, 1926, he leased the premises by written lease to one Virginia Moore Wrather for a term of five years, beginning August 5, 1926, she covenanting to pay as rent for the demised premises the sum of $42,000, in installments of $700 each, payable monthly in advance. The lease contained the following provision: "Should there, at any time, be any default in the payment of any rent or installment thereof, or in the performance of any of the covenants, agreements or stipulations herein contained, then it shall be lawful for the party of the first part (lessor) to declare this contract canceled and terminated, * * * without prejudice to any legal remedies which may be used for the collection of rents; and in which event, party of the first part may relet said premises for the account of the second party, for and during the remainder of the term of this lease."

The lease further provided that it could not be assigned without the permission of the lessor first had and obtained in writing.

The lease entered into possession of the premises on August 5, 1926, pursuant to the terms of the lease, and so continued, operating a hotel thereunder, until the 27th day of May, 1927. On the latter day she assigned the lease and the leasehold estate to the defendants, George A. and Lydia E. Kaupp, having previously obtained the consent in writing of McMurtry, the lessor, so to do. The instrument by which such assignment was effected contained the following: "And in further consideration of the sale to them of said (hotel) furniture, and the assignment of said leasehold estate, the second parties (defendants Kaupp) hereby further bind and obligate themselves, their heirs and assigns, to assume the payment of all rent payments and sums of rent due and to become due to the said R. L. McMurtry, or the owner or owners of the above described lands and premises, by virtue of the above mentioned Virginia Moore-R. L. McMurtry contract, it being understood that the second parties hereto assume the above mentioned contract, together with all liabilities and obligations created thereby and hereby promise and agree to perform all of the covenants and conditions, duties and obligations created by said contract against the said Virginia Moore Wrather, the said second parties hereby promising to pay all rent installments now due or to become due under said contract, according to the terms thereof."

In the writing giving his consent to the assignment McMurtry stipulated: "It is understood, however, that I do not release the said Virginia Moore Wrather from her personal liability for said rent payments."

Following the assignment just mentioned, the defendants went into possession of the leased property, and conducted a hotel business therein until the 5th day of June, 1928, on which date they assigned the leasehold to G. E. Litten and Joseph C. Litten, and delivered to them possession of the premises. This last assignment was made with the written consent of the plaintiff, Crow, who had become, and was then, the owner of the fee. In giving such consent, plaintiff made the following reservations: "It is understood, however, that nothing herein contained shall operate as a modification or change of the terms of the said original lease contract, and that I do not release the said original lessee from her personal liability for the said rent payments."

The Littens went into possession June 5, 1928, and paid the rent for June and July, but defaulted as to part of the installment due August 1. They wholly failed to pay the September and October installments. On October 23, 1928, "the plaintiff (according to the allegations of the petition) exercised his right and option under the terms and provisions of the original lease contract of April 12, 1926, and re-entered and repossessed said premises * * * and after re-entry and repossession of said * * * premises, * * * for the account of said defendants, plaintiff did, upon the best terms and conditions obtainable relet said premises for a term of six months beginning November 1, 1928, and ending April 30, 1929, for the total consideration of $2,900."

As to whether plaintiff notified either Virginia Wrather or the defendants at the time he re-entered and took possession of the demised premises that he did so for the purpose of reletting the same for the account of the lessee, the petition is silent. Nor does it appear therefrom that plaintiff made any further reletting of the premises after April...