Delmar Investment Co. v. Blumenfield

• Decision Date: 24 April 1906
• Citation: 94 S.W. 823,118 Mo.App. 308
• Parties: DELMAR INVESTMENT COMPANY, Respondent, v. BLUMENFIELD et al., Appellants
• Court: Missouri Court of Appeals

94 S.W. 823

118 Mo.App. 308

DELMAR INVESTMENT COMPANY, Respondent, v. BLUMENFIELD et al., Appellants

Court of Appeals of Missouri, St. Louis

April 24, 1906

Appeal from St. Louis City Circuit Court.--Hon. O'Neill Ryan Judge.

AFFIRMED.

Judgment affirmed.

Lee Sale and David Goldsmith for appellants.

(1) The use made by the Feldman Pants Manufacturing Company of the premises from May, 1904, until after July 12, 1904, on which day defendants vacated the premises, was a breach of the lessor's covenant not to lease or allow any portion of the premises not in possession of defendants to be used for manufacturing or the sale of clothing, and constituted a constructive eviction as a matter of law. Wheeler v Earle, 5 Cush. 31; Miller v. Prescott, 163 Mass. 12; Ex. parte Eyston, 7 Law Rep. (Ch. Div.) 145; Roffey v. Bent, 3 L. R. Eq. Cas. 758; Warberton v Wood, 6 Mo. 8; Commonwealth v. Curtis, 9 Allen (Mass.) 266. (2) The failure of the plaintiff to furnish first-class passenger elevator service between the hours of 7 a. m. and 6:30 p. m. was a breach of a covenant of the lease and constituted an eviction. Jackson v. Eddy, 12 Mo. 209; Duff v. Hart, 16 N.Y.S. 163; Herpolsheimer v. Funke, 95 N.W. 668; Hoveler v. Flemming, 91 Pa. St. 222; Hotel Co. v. Philbin, 96 Md. 487; Butler v. Newhouse, 85 N.Y.S. 373.

Kinealy & Kinealy for respondent.

(1) There is no evidence of any eviction in this case, because an eviction, actual or constructive, must be some act or conduct which interferes materially with the enjoyment of the physical possession of the premises. 18 Am. and Eng. Ency. of Law, p. 298; Barrett v. Boddie, 158 Ill. 479; Meeker v. Spalsbury, 66 N. J. L. 60.; Talbot v. English, 156 Ind. 299; Gray v. Gaff, 8 Mo.App. 329; Jackson v. Eddy, 12 Mo. 209. (2) There was no constructive eviction shown by reason of the alleged competitive use of a portion of the fourth floor by the Feldman Pants Manufacturing Company. Wright v. Lattin, 38 Ill. 293; Doty v. Lawson, 14 F. 892; Thurman v. Adams, 82 Miss. 204; Behen v. St. Louis Transit Co., 186 Mo. 430. (3) The evidence as to the elevator service did not tend to establish any constructive eviction. Ethridge v. Osborn, 12 Wend, 529; Koehler v. Schneider, 11 N. Y. St. 676; Seaboard R. So. v. Fuller, 67 N.Y.S. 146; Orcutt v. Isham, 70 Ill.App. 102; 1 Taylor's Landl. and Ten., sec. 379; Bales v. Roberts, 189 Mo. 49; Lavin v. Grand Lodge, 86 S.W. 600. (4) Appellants cannot complain of any conflict in instructions, if any there be, caused by their own erroneous instructions. Francis v. Railroad, 127 Mo. 658, 28 S.W. 842, 30 S.W. 129; Reardon v. Railway, 114 Mo. 384, 21 S.W. 731; Summers v. Insurance Co., 90 Mo.App. 691. The judgment being the only one which could be sustained in the case, the instructions are immaterial. Jones v. Brownlee, 161 Mo. 258, 61 S.W. 795; Cass Co. v. Bank, 157 Mo. 133, 57 S.W. 736; Bowman v. Lickey, 86 Mo.App. 47; Wagner v. Edison, E. I. Co. 82 Mo.App. 287; Link v. Prufrock, 85 Mo.App. 618.

OPINION

GOODE, J.

This is an action for an installment of rent due January 1, 1905, for the use by appellants as tenants of the second and third stories of a building in the city of St. Louis, designated as Nos. 1819 and 1821 Washington avenue. The demand was filed with a justice of the peace and an appeal taken to the circuit court where, on a trial anew, judgment was given for respondent and appellants appealed to this court. Respondent is an incorporated company and at present the owner of the building in which are the leased stories. When the lease was executed the building was owned by Alexander Frankenthal, who afterwards conveyed it to the Frankenthal Investment Company, which company, on April 21, 1903, sold and conveyed it to the Delmar Investment Company. The lease passed by assignment to the latter company. The letting was by a written instrument executed March 31, 1900, by Alexander Frankenthal to appellants, who are partners constituting the firm of Martin Blumenfeld & Bros. The term created was for five years to begin June 1, 1900, and end June 1, 1905, and the rent was $ 3,400 a year, or $ 283.33 a month, to be paid on the first day of each month of the term.

Besides other covenants the instrument contained these:

"Lessor hereby agrees to furnish to said lessees access to their said floors by means of a modern, first-class passenger elevator, to be operated by the lessor from 7 a. m. to 6:30 p. m., and staircases to be reached through a vestibule entrance on Washington avenue as per sketch submitted to lessees and approved by them, and also the use of a freight elevator in the rear of said building, and access to the same from the alley entrance; said elevator to be used jointly with other tenants occupying the upper part of said building; also steam heat during the year when it is necessary to make said premises comfortable for occupancy.

"It is agreed, however, between the parties hereto, that if at any time during the term of this lease, any accident shall happen to the machinery in said building, lessor shall not be liable for damages on said account, if he shall forthwith have said machinery repaired so as to comply with his obligations to furnish heat and power as herein provided.

"The said premises shall be used by the said lessees exclusively for the purpose of manufacturing and the sale of clothing at wholesale, and the lessor binds himself not to lease or allow any other portion of the premises during the continuance of this lease, not in possession of the lessees, to be used for manufacturing or sale of clothing."

At the trial in the circuit court the attorney for appellants, on being called on by the court to know what the defense was, stated that it was an eviction and that to establish the eviction appellants relied on the failure of respondent to furnish the passenger elevator service required by the lease, and also a constructive eviction by allowing a concern to occupy part of the building for the purpose of manufacturing and selling pants, in violation of the covenant not to lease or allow any portion of the premises not held by appellants to be leased during their term for use in the manufacture and sale of clothing.

The testimony introduced regarding the sufficiency of the passenger elevator service was of a highly contradictory character. Appellants and their witnesses swore the service was very poor; that the elevator was often shut down on Saturday afternoons and closed before 6:30 o'clock in the evening of other days of the week; that the operators in charge of the elevator were negligent, did not respond to calls, forcing appellants and their customers to wait a considerable time or climb the stairs, and that generally the service was slow and unsatisfactory, entailing trouble on appellants and perhaps some loss. For respondent the testimony went to show that the service was reasonably good and about as efficient as in most other business houses in St. Louis; that there was prompt attention to calls, except now and then when an inefficient operator was in charge and that when complaint was made of bad service, the operator was promptly changed. For respondent, too, the testimony tended to prove the elevator was kept in operation continuously during the hours stipulated in the lease, except for a brief while now and then when repairs were made. The other tenants in the building testified in support of the contention that the elevator service was good. Letters which had been written by appellants were introduced. They contained complaints principally regarding the elevator service, but to some extent about the stairway being obstructed with brooms, mops and buckets, and also about the inadequate heating of the building. These complaints began early in the tenancy of appellants, before respondent owned the building, and continued until appellants vacated it in July, 1904. Another tenant was Walter Baach, who occupied the fourth floor. In May, 1904, this tenant sublet a portion of his floor to a concern known as the Feldman Pants Manufacturing Company. Baach's testimony was that he applied to C. A. Tilles, vice-president of the Delmar Investment Company, for permission to make the sublease and Tilles said he had no objection, provided appellants did not object. Baach said he spoke to one of more of the appellants about the matter and they agreed that he might let to the Feldman Company. Appellants contradicted this and introduced written remonstrances about the matter addressed to respondent, asserting that the manufacture of pants by the Feldman Company was a violation of the lease and demanding of respondent to put a stop to the violation. The outcome of the dispute was that an injunction suit was instituted by respondent against the Feldman Company to prevent the use of the premises for the manufacture of pants and the Feldman Company was ousted. It was engaged in manufacturing pants on the premises from the latter part of May, 1904, perhaps until appellants vacated; but mean-while the suit against them had been instituted and they quickly left. Respondent endeavored to oust the Feldman Company in compliance with letters written by appellants, demanding that their rights under the lease be restored. There were seven of these letters ranging in date from May 25th to June 9th. In the first one appellants declared that in consequence of the breach of the lease by permitting a competitor to do business in the building, they would not regard themselves as bound to continue in possession or pay rent after the end of May. In the other letters they asked for a restitution of rights under the lease. Testimony was introduced going to show that appellants had an opportunity to sublet the third floor of the building and in fact made an...