D. A. Schulte, Inc. v. Haas
| Decision Date | 06 July 1926 |
| Docket Number | No. 15718.,15718. |
| Citation | 287 S.W. 816 |
| Parties | D. A. SCHULTE, Inc., v. HAAS. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Jackson County; James H. Austin, Judge.
Action by D. A. Schulte, Inc., against Sig Haas. From a judgment for plaintiff, defendant appeals. Affirmed.
Ringolsky, Friedman & Boatright, of Kansas City, for appellant.
Cooper & Neel and W. E. Kemp, all of Kansas City, for respondent.
This is a suit for rent. There was a verdict and judgment in favor of plaintiff in the sum of $1,838.75, and defendant has appealed.
The facts show that on April 21, 1922, plaintiff leased in writing to defendant a certain store room in a building located at the northeast corner of Tenth and Main streets in Kansas City, Mo., for a term beginning on May 15, 1922, and ending on January 31, 1925. The stipulated rental was $550 per month. Among other things the lease provides:
"In event of the nonpayment of rent or the failure of the lessee to carry out any other obligations of this lease, then after giving the lessee five (5) days' notice of forfeiture in writing specifying such default and if the lessee shall then still continue in default for three (3) days the lessor shall have the right to reenter, and retake said premises and, on obtaining possession, relet the same at its own will to any person or persons, for any amount, and the lessee shall continue liable for any deficiency of rentals or other default hereunder and all expenses incurred by the lessor."
The lease also contains the following:
"Provided always, that these presents are upon the condition that in case of a breach by the lessee, or those claiming under him, of any of the covenants and agreements in this lease contained to be complied with and performed by the lessee, or those claiming under the lessee, or in case the estate hereby created should be taken from the lessee by process of law, or if the lessee go into bankruptcy, voluntarily or involuntarily, or if a receiver is appointed for the lessee's business, or if the lessee becomes insolvent, the lessor may, at its election, while default or neglect continues, or any time after the commencement of such proceedings at law or in equity, without notice or demand, enter upon the demised premises and thereby terminate the estate hereby created; and this lease shall thereupon become forfeited, null and void; but for this cause the lessee's obligation to pay shall not cease."
After the execution of the lease defendant entered into possession of the premises and paid the rent to July 1, 1922, but on June 25, 1922, without any previous notice, vacated and abandoned the premises, and on the next day left the keys thereto at the office of plaintiff's agent in Kansas City. Accompanying the keys defendant left with plaintiff's agent a letter addressed to the latter, giving its reasons for vacating and abandoning the premises, and stating that he no longer recognized any tenancy as existing, and suggesting that plaintiff could lease the premises for as much or more than the rent paid by defendant, "and thus save yourself from any loss."
Immediately upon receipt of the keys and letter from defendant the agent notified plaintiff, whose offices were in New York City, by wire and letter of defendant's action, and notified plaintiff that the Baltimore Shirt Company had offered to rent the premises at $400 per month, and advised that the shirt company's proposition be accepted. On July 1 plaintiff s agent, acting on its behalf, wrote defendant, acknowledging receipt of his letter of June 26, and advising him that plaintiff had instructed it to attempt to secure another tenant for the premises at the earliest possible date and at the best rental that could be secured, and if there should be any loss in rent accruing under the unexpired term of defendant's lease plaintiff would expect defendant to account for the same.
Negotiations were carried on by the agent with the Baltimore Shirt Company, culminating in the signing of a lease for the premises by the latter on July 1, 1922, dated at that time. The lease provided a rental of $400 per month and 10 per cent. of the shirt company's sales above $4,000 per month, the term to expire at the same date as defendant's term under his lease. The agent who negotiated the lease with the shirt company had no authority to execute a lease on behalf of plaintiff, so the lease was drawn up and signed by the shirt company on July 1st and then forwarded to the plaintiff in New York City for execution, but was not delivered to the shirt company until July 15th. On July 10, 1922, plaintiff's agent again wrote defendant, advising him that a lease was being made with the Baltimore Shirt Company for the property at a guaranteed rental of $400 per month, and in addition thereto 10 per cent. of all sales of the shirt company above $4,000 per month, and that "when we have received a report for the month of July we shall arrange to bill you for the deficiency, if any." The shirt company entered into possession of the premises and plaintiff collected the rent from it under the lease to it and each month thereafter until this suit was brought sent a statement to the defendant for the rent due under defendant's lease, after first allowing a credit for the amount that was collected from the shirt company. All of these statements were ignored by the defendant.
On January 4, 1924, without the knowledge of the defendant, and, of course, without his consent, plaintiff leased to the shirt company the same premises together with two additional store rooms adjacent to the premises for a term expiring February 1, 1928. The rent reserved under this lease was $600 per mouth and 10 per cent. of the aggregate business done by the shirt company in excess of $72,000 per year. The evidence shows that the rental value of the two additional store rooms included in the second lease to the shirt company was at least $200 per month, and that they were charged at that rental value in arriving at the rental in the second lease of $600 for the three rooms. Plaintiff continued to allow $400 per month as rental received on the premises originally leased to the defendant, and sought to recover from the defendant the difference between the rental stipulated in defendant's lease and said amount for the balance of defendant's term.
It is insisted that the court erred in failing to sustain defendant's demurrer to the evidence. In this connection it is claimed that the action of plaintiff in taking possession of the premises, under the circumstances shown in the evidence, amounted to a surrender of defendant's lease as a matter of law. In addition to this it is contended that the possession of the premises was taken by the plaintiff under the second provision of the lease quoted supra, providing that plaintiff, in case of a breach of the lease, might, at its election, enter upon the demised premises and thereby terminate the estate created, and thereupon the lease should become forfeited, null, and void, and defendant says that, owing to the fact that plaintiff did enter upon the premises and did take possession of the same and relet it, thereby forfeiting the lease and causing it to become null and void, the relation of landlord and tenant ended, and there can be no recovery of further rent...
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