Exchange Real Estate & B. Co. v. Schuchman Realty Co.

• Decision Date: 01 December 1903
• Court: Missouri Court of Appeals
• Parties: EXCHANGE REAL ESTATE & BUILDING CO. v. SCHUCHMAN REALTY CO. et al.<SMALL><SUP>*</SUP></SMALL>

78 S.W. 75

103 Mo. App. 24

EXCHANGE REAL ESTATE & BUILDING CO. v. SCHUCHMAN REALTY CO. et al.^*

Court of Appeals at St. Louis, Missouri.

December 1, 1903.

LANDLORD AND TENANT—RIGHT TO REMOVE BUILDINGS—ESTOPPEL—MEASURE OF DAMAGES—DECLARATION OF LAW—ERROR.

1. Where one purchases the leasehold of one in possession of real estate on the representation of the agents of the owner that he should have the right to remove the improvements, the owner is estopped to deny the right to remove the improvements, though at the time of the purchase the written lease granting the right to the tenant to remove the improvements had expired.

2. Where an action to recover the value of buildings which plaintiff, a tenant, is wrongfully prevented from removing, is tried on the theory that the measure of damages is the value of the material after the buildings had been wrecked and removed, and no evidence is offered as to their value standing on the premises, a declaration of law by the court from which it might be inferred that the damages were estimated to be the value of the buildings standing on the premises is not cause for reversal.

Appeal from St. Louis Circuit Court; Robert M. Foster, Judge.

Action by the Exchange Real Estate & Building Company against the Schuchman Realty Company and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Collins & Chappell, for appellants. E. W. Banister, for respondent.

BLAND, P. J.

This controversy arises out of the following clause in a lease of certain real estate in the city of St. Louis for a term of five years executed by Simon Rossi to William H. Dausman February 20, 1895, to wit: "At expiration of said lease in case the said lessor, his heirs or assigns, and the said lessee, his heirs or assigns, do not agree on terms for new lease of said lot, said lessor, his heirs or assigns, agree to allow the said lessee, his heirs or assigns, to remove all improvements put on lot by said lessee at his, said lessee's, expense." The lease by mesne assignments was acquired by the plaintiff. The lessees erected on the premises a one-story brick building, 30 by 50 feet, and a frame building 30 by 80 feet, and a 20-foot shed on the side of the brick building, and put up about 300 feet of fencing. The material in these improvements was estimated by plaintiff's witnesses to be of the net value of $500 at the time defendant took possession (November, 1901); that is, it was of that value after the buildings had been wrecked, and the material piled and removed from the premises. The defendant's evidence is that the material was worth, net, from $75 to $80. Hubert Gaesar, one of the assignees of the lease, was in the occupancy of the premises when the lease expired. Fisher & Co. were the agents of Rossi for the property, and collected the rents. A short time before the lease expired, Gaesar went to Rossi, the then owner, and wanted the lease renewed. Rossi told him he did not want to give a new lease, but that he could continue on in the occupancy of the premises. Gaesar said, if he could not get a new lease, he wanted to remove the buildings before the lease expired; and Rossi assured him that he might remove the buildings at any time in the future, and that when he (Rossi) wanted possession he would give him 90 days' notice, so as to give plenty of time to remove the buildings, and told him to see Fisher & Co., his agents, about a new lease. Gaesar went to Fisher & Co., and they refused to give a lease, but assured Gaesar that he might remain on the premises at a rental of $35 per month, and that so long as he paid his rent he might keep the premises, and agreed to give him 90 days' time in which to vacate and move off the improvements. This agreement, Gaesar testified, was indorsed on his receipt for rent for the month of February, 1900, and that he informed Fisher & Co. at the same time that he wanted to put up another improvement, and they told him to go ahead and put it up; that he had a right to remove the buildings on the premises, and no one would interfere with this right, and he should have 90 days' notice when they wanted possession of the premises, to give him time to move off the improvements. That on the faith of this agreement he put up a frame structure about 50 feet square on the premises. Fisher & Co. admitted that they agreed to give 60 or 90 days' notice to Gaesar to vacate, but denied that they recognized his right to remove the improvements after the expiration of the lease of 1895. Gaesar subsequently sold the improvements, and the tenant occupying the premises on October 23, 1900, paid Fisher & Co. for that month's rent. A receipt was given for the rent, and was indorsed, "Ninety days' notice to be given lessee in case of re-lease or sale," etc., and signed, "Fisher & Co." After this, defendant acquired the fee to the premises by mesne conveyances from Rossi. Gaesar sold his lease and the improvements to L. H. Lawrence, and Lawrence to the plaintiff. Before making the purchase from Lawrence, plaintiff sent E. W. Banister to the defendant for the purpose of finding out whether or not Lawrence had the right to remove the improvements from the premises at the termination of his tenancy. Banister and Lawrence went together to see the defendant, and they met Schuchman, of the Schuchman Realty Company, and had a conversation with him in regard to the matter. They both testified that...