Fred Wolferman Bldg. Co. v. General Outdoor Adv. Co.

• Court: Missouri Court of Appeals
• Writing for the Court: Barnett
• Citation: Fred Wolferman Bldg. Co. v. General Outdoor Adv. Co., 30 S.W.2d 157 (Mo. App. 1930)
• Decision Date: 18 June 1930
• Docket Number: No. 16945.,16945.
• Petition History: writ ref'd n.r.e.
• Parties: FRED WOLFERMAN BLDG. CO. v. GENERAL OUTDOOR ADVERTISING CO.

30 S.W.2d 157

FRED WOLFERMAN BLDG. CO. v. GENERAL OUTDOOR ADVERTISING CO.

No. 16945.

Kansas City Court of Appeals. Missouri.

June 18, 1930.

Appeal from Circuit Court, Jackson County; Darius A. Brown, Judge.

"Not to be officially published."

Suit by the Fred Wolferman Building Company against the General Outdoor Advertising Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

Frank M. Lowe, of Kansas City, for appellant.

McCune, Caldwell & Downing, of Kansas City, for respondent.

BARNETT, C.

This is a suit to recover rent. The plaintiff corporation let to the defendant corporation a strip of ground in Kansas City for a term of three years by a written lease in which it was provided that rent should be paid from June 1, 1927, provided a certain brick building on the premises had been removed by lessor by that date; otherwise the rent to become due on the date the building was removed. Lessee agreed to pay $175 per month for the term of the lease, and the instrument contained the following provision:

"It is further understood that in case Kansas City shall pass any ordinance restricting the location of signs or bill boards so as to prevent second party from being permitted to erect and maintain its bill boards on the premises hereby let, that then and in that case this rent which has been paid in advance by said party, shall be repaid to it by first party."

The lease provided that the land was let "for the purpose of erecting and maintaining electrical lighted signboards thereon."

The answer alleged that the lease was entered into on May 2, 1927, and there was then in force in Kansas City, Mo., Ordinance No. 54,006, which was passed on January 17, 1927, which ordinance provided that no ground signboard, roof signboard or wall bulletin should be erected by any person, firm, or corporation, except as prescribed by said ordinance, until after a permit to erect the same had been obtained from the commissioner of buildings and inspections and the required fee, as provided in said ordinance, paid; that the ordinance provided for a penalty for a violation thereof. The answer alleged that defendant had paid the plaintiff $175 as rent for the month of June, 1927, that it prepared and filed with the commissioner of buildings and inspections an application for a permit to erect an illuminated signboard upon the premises so leased from the plaintiff; that the application was in strict compliance with the provisions of the ordinance and was accompanied by the necessary fee to pay for the same; but that the commissioner of buildings and inspections refused to issue the permit; that thereafter defendant notified plaintiff of the above facts, thereby exercising its option to terminate the lease as provided therein, and the defendant prayed judgment in the sum of the amount of the rent paid.

Ordinance No. 54,006 of Kansas City, Mo., was introduced in evidence. It provided that no person, firm, or corporation shall engage in the business of outdoor advertising by means of ground signboards, roof signboards, wall bulletins, or commercial signs within the corporate limits of Kansas City until compliance with the provisions of the ordinance and until after such person, firm, or corporation shall have filed a bond with sureties to be approved by the director of finance, conditioned that such person, firm, or corporation shall fully comply with all the provisions of the ordinance and shall save and keep Kansas City and its officers harmless from damages, liabilities, losses, or judgments by reason of the installation, erection, construction, or maintenance of any such signs. The ordinance provides that no sign shall be erected without the written consent of the owner or agent of the owner of the premises upon which the sign is to be erected, which consent shall be filed with the division of buildings and inspection; that no sign shall be installed, erected, constructed, or maintained so as to obstruct any fire escape or any window or door leading thereto, nor shall any sign be attached to a fire escape; that the signs shall be plainly marked with the name of the person, firm, or corporation erecting and maintaining the same and shall bear the number of the permit issued therefor by the commissioner of buildings and inspections; that it shall be unlawful for any one except a public officer or employee in the performance of a public duty to put up any card, banner, handbill, sign, poster, advertisement, or notice of any kind on any curb stone, lamp post, pole, hitching post, watering trough, bridge, or tree upon a public street or highway or upon other public property in the city except as may be permitted by this ordinance until a license and a written permit from the property owner and the consent of the commissioner of buildings and inspections has been obtained; that no sign projecting more than twelve inches over public property should be erected, except as provided by the ordinance and until after a permit to erect the same had been obtained from the commissioner of buildings and inspections, and the fee therefor paid; that no such permit should be issued by such commissioner until after an application had been filed with him showing the plans and specific dimensions, materials of which said sign was to be constructed, and the details of construction thereof, and in the case of ground signboards the proposed location with reference to the street line and the walls of adjoining buildings, if any, which application should be accompanied by the written consent of the owner, lessee, or agent of the property upon which the sign was to be erected; that the commissioner of buildings and inspections might prescribe suitable regulations consistent with the provisions of the ordinance concerning the form and contents of all applications and permits.

The fees for permits for various signboards were fixed by the ordinance, and annual inspection of the signs was provided for, and it is provided that no ground signboard constructed entirely of wooden material should be at any point over 14 feet above the ground level, but when the facing of a ground signboard is constructed entirely of sheet metal, except only that the supports, braces, battens, ornamental platform, and decorative lattice work are of wooden construction, the ground signboard might be erected to a height not exceeding 24 feet above the ground level; that every ground signboard should have an open space of not less than 2 and not more than 4 feet between the lower edge of the signboard and the ground level, which...