Defeo v. Goodwin

• Decision Date: 06 July 1926
• Parties: MIKE DEFEO, RESPONDENT, v. F. C. GOODWIN, APPELLANT. [*]
• Court: Kansas Court of Appeals

287 S.W. 1075

221 Mo.App. 789

MIKE DEFEO, RESPONDENT, v. F. C. GOODWIN, APPELLANT. ^[*]

Court of Appeals of Missouri, Kansas City

July 6, 1926

Appeal from the Circuit Court of Jackson County.--Hon. Charles R Pence, Judge.

REVERSED AND REMANDED.

Judgment reversed and remanded.

Benj. W. Grover and Joseph R. Lasson for respondent.

Beardsley & Beardsley and E. L. Noyes for appellant.

BLAND J. Arnold, J., concurs. Trimble, P. J., absent.

OPINION

BLAND, J.--

This is a suit for the conversion of the furniture of the Hendryx Hotel located at 414 East 8th street in Kansas City Missouri. There was a verdict and judgment in favor of plaintiff in the sum of $ 2500 and in favor of defendant upon his counterclaim in the sum of $ 1000 and defendant has appealed.

The evidence shows tat plaintiff was a tenant of defendant under a lease of the above-mentioned hotel, not including the furniture. The lease, which by its terms was to expire on February 14, 1922, provided for a rental of $ 165 per month, payable in advance. The lease recited that the tenant should keep the premises in good repair and at the end of the term he should yield them up to the landlord "in as good condition as when the same was entered upon by lessee, loss by fire, unavoidable accident and ordinary wear excepted. " Plaintiff owned the furniture in the hotel. The lease contained a chattel mortgage upon said furniture to secure the payment of the rent and for the performance of the covenants and agreements in the lease. The mortgage provided that "in case of default in payment of the debt on day when same ought to be paid" the landlord might take possession of the property and sell the same at public sale to the highest bidder for cash, first giving ten days public notice of the sale.

There was storeroom adjoining the hotel, belonging to defendant, not covered by the lease. This room was rented by plaintiff under a tenancy from month to month at $ 85 per month. By reason of the fact that whiskey was sold by the plaintiff in the storeroom which, evidently, was a part of the premises on which the hotel was located, the United States District Court, on September 30, 1921, permanently enjoined the plaintiff, together with Nick Defeo, J. M. Johnson and the defendant herein, F. C. Goodwin, from keeping or selling on the premises known as the Hendryx Hotel any intoxicating beverages containing more than one-half of one per cent of alcohol by volume, and further enjoined said persons, their agents and servants "from occupying said building in any manner for one year from date of decree or until further order of the court." On December 27, 1921, plaintiff herein pleaded guilty in the Federal court to the selling of the intoxicating liquor aforesaid and his punishment was assessed at imprisonment in the county jail of Jackson county, Missouri, for a period of two months. A part of the sentence was served in the Jackson county jail and a part in the Pettis county jail.

The Federal court permitted the opening of the hotel by the W. J. Bland Post of the American Legion from October 30 to November 3, 1921, on account of the holding of the American Legion convention in Kansas City about that time. The record does not show at whose instance the hotel was opened. Following this, the premises remained closed until defendant herein gave a bond under which the court permitted him to take possession of the property on February 16, 1922. During the time the hotel was closed under the decree of the Federal court the water pipes and some of the radiators in the hotel froze and burst. This was caused by the fact that there was no heat in the hotel. The bursting of the water pipes caused the ceilings in some of the rooms to give way and damage to the furniture. To repair the building defendant, after he took possession of the premises, spent $ 538. When defendant took possession of the hotel under the order of the Federal court, he opened it up for business, using the furniture in controversy, and when plaintiff was released from jail he demanded the furniture of the defendant which defendant refused to deliver to him, and this suit was filed on March 1, 1922. Plaintiff paid the rent to October 13, 1921, but did not pay any rent thereafter. On May 10, 1922, defendant procured the furniture to be sold in pursuance of the chattel mortgage contained in the lease. At this sale defendant purchased the property, paying therefor the sum of $ 356.25. The notice of sale recited that forfeiture of the lease was declared on the ground that plaintiff had "failed and refused and neglected to pay the rent."

The petition alleged that between the dates of July, 1921, and February, 1922, defendant appropriated to his own use the furniture in the hotel and the fixtures in the storeroom, which furniture and fixtures were the property of plaintiff; that the reasonable value of said furniture and fixtures was the sum of $ 5850, judgment for which plaintiff prayed and in addition the petition asked for the sum of $ 2500 as punitive damages. Defendant's answer consisted of a general denial and the setting up of his mortgage upon the property, that the mortgage was given to pay the rent which might accrue and that the mortgage was foreclosed and the property legally and lawfully sold under the mortgage; that the proceeds of the sale were applied to the rent which plaintiff owed defendant; that a part of the bar room fixtures was placed in storage for plaintiff and the other part was in the basement of the rented premises and the petition stated that defendant tenders said bar fixtures to plaintiff. The answer further consists of a counterclaim for the unpaid balance of the rent to the expiration of the lease, amounting to $ 660 and an additional sum of $ 510 alleged to be due on account of the rental of the store in question, which was rented from month to month at $ 85 per month. In the counterclaim it was alleged that the lease of the hotel provided that plaintiff should keep the premises in repair and deliver up the same to the defendant at the end of the term in as good condition as when received by plaintiff, etc.; that plaintiff failed to keep this condition of the lease and that when defendant recovered possession of the premises the same was damaged in the sum of $ 500. Defendant prayed judgment in the sum of $ 1670 less the sum of $ 356.25, received at the sale of the property under the mortgage, or a balance of $ 1313.75. In the reply it was pleaded that "plaintiff on numerous occasions offered to tender the rent money to defendant and still offers to tender said money to defendant but that defendant at all times had refused said offer." The reply further consists of a general denial.

Defendant insists that his instruction in the nature of a demurrer to the evidence at the close of all the testimony should have been given for the reason that it is claimed that when plaintiff made demand for the furniture on or about February 28, 1922, defendant was in possession of the same after conditions of the chattel mortgage were broken and for this reason he had the absolute title to the property subject only to the equitable right of plaintiff to redeem, which could only be enforced in a court of equity. Plaintiff admits that, after condition broken, the chattel mortgagee in possession of the property is the legal owner of the property and that the mortgagor cannot make a tender of the debt releasing the mortgage lien when such conditions are present. But insists that in the case at bar that no condition of the mortgage was broken when demand for the furniture was made, and in support of this contention states that plaintiff was willing to pay the rent but that defendant waived the tender which "kept the right of possession" in plaintiff and that defendant "could not thereafter claim a breach of the condition of non-payment having himself made it impossible for" plaintiff to pay. And in this connection it is insisted that defendant at no time relied up on any other breach of the mortgage than that of failure to pay rent as an excuse for taking possession and selling the property.

In reference to the tender of the rent, plaintiff testified as follows: That in the latter part of July, 1921, after the government had raided the premises and "caught us" he found that the place was going to be closed and at that time stated to defendant that, "I was willing to pay the rent and wanted the hotel;" that he would pay the balance of the rent under the terms of the lease, "Every dime I owed him, four months' rent," "If you will give me my furniture back;" that defendant said, "No" and the witness then asked, "Why do you want to keep my furniture" and defendant replied, "If you want to get your furniture, you will have to go to court about it;" that plaintiff "would have to go to law about it." At this time the rent had been paid to October 13th. It will be noted that at this time defendant did not say anything indicating that he would refuse to take the rent under any conditions but merely refused the conditional offer of plaintiff to pay the balance of the rent.

Plaintiff had a second conversation with defendant in reference to the payment of the rent. There is some conflict in plaintiff's testimony as to when this was, but there was room for the jury to say that it was after October 13, 1921 or at a time when a month's rent was due. For although plaintiff testified that the second conversation was two or three weeks after the first, he said that at the time of the second conversation he owed $ 165 for one month's rent on the premises. As before stated, the rent was paid to October 13th. As to the second conversation plaintiff testified that he again talked to defendant about the furniture--

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