Fredeking v. Grimmett

• Decision Date: 20 May 1955
• Docket Number: No. 10666,10666
• Citation: 140 W.Va. 745,86 S.E.2d 554
• Court: West Virginia Supreme Court
• Parties: , 50 A.L.R.2d 1346 Helene Marle FREDEKING, an Infant, etc., et al. v. O. R. GRIMMETT et al.

Page 554

86 S.E.2d 554

140 W.Va. 745, 50 A.L.R.2d 1346

Helene Marle FREDEKING, an Infant, etc., et al. v. O. R. GRIMMETT et al.

No. 10666.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 25, 1955.

Decided March 22, 1955.

Rehearing Denied May 20, 1955.

Syllabus by the Court.

1. When a contract is ambiguous and of doubtful and uncertain meaning, and the parties have by their contemporaneous or subsequent conduct placed a construction upon it which is reasonable, that construction will be adopted by the court.

2. 'If a lessor, with knowledge of a breach by the lessee of the restriction against the assignment of the lease, permits the assignee to remain in possession of the premises and accepts subsequently accruing rents from him, the breach is waived.' Point 1, syllabus, Kanawaha-Guley Coal and Coke Company v. Sharp, 73 W.Va. 427 .

3. A forfeiture provision in a contract of lease upon real estate owned jointly by tenants in common is indivisible and such lease can not be forfeited by less than all the owners of the undivided interests for the reason that if the lease could be forfeited by less than all the owners of the undivided interests the lessee would be bound by the lease as to some of such owners and discharged as to other such owners.

4. When it appears in a suit instituted by all the owners of undivided interests in real estate subject to a lease, which contains a forfeiture provision for breach of a condition of the lease by the lessee, that one of such owners has waived his right to enforce a forfeiture of the lease, forfeiture of the lease may not be had by the owners of the other undivided interests even though they have not waived their right to forfeit such lease or are not estopped from enforcing such right of forfeiture.

5. Under an express provision of a lease which requires the lessee to pay the rent provided in the lease, the liability of the lessee for the payment of such rent continues during the term of the lease, and an assignment of the lease without the consent of the lessor does not relieve the lessee from his liability to pay the rent which accrues after the assignment, in the absence of release by the lessor of such liability; and the assignee of the lessee is also liable to the lessor for rent which accrues after the assignment and while he holds the leased premises.

Ben K. Baer, Charles C. Wise, J., Charleston, Frederick W. Sawyers, Hinton, for appellants.

W. A. Brown, Hinton, for appellees.

HAYMOND, Judge.

In this suit in equity instituted in the Circuit Court of Summers County in May 1953, the plaintiffs Helene Marine Fredeking, an infant, Herbert A. Fredeking, an infant, by Nell Fredeking, their next friend and guardian, and Nell Fredeking, in her own right, seek a discovery and an accounting from the defendants O. R. Grimmett, J. Lynn Swiger and Three Hundred Taxi, Inc., for rent alleged to be due the plaintiffs from gasoline used on certain premises under a lease dated June 21, 1945, between J. G. Fredeking and the plaintiff, Nell Fredeking, husband and wife, and the defendant O. R. Grimmett, forfeiture and surrender of the lease, a recovery of damages for alleged violations of its provisions, and general relief. The original bill of complaint named only Grimmett and Swiger as defendants, but by amendment Three Hundred Taxi, Inc., was made a defendant in the suit. The case was heard upon the bill of complaint, as amended, the demurrer of the defendants Grimmett and Swiger, the separate answers of each of the defendants, the general replications to the answers, and the testimony of witnesses in the form of depositions filed in behalf of the respective parties. It does not appear from any decree in the case that the circuit court ruled upon the demurrer filed by the defendants Grimmett and Wiger but, as the final decree determined the merits of the cause, the demurrer will be regarded as having been overruled. Craig v. Craig, 54 W.Va. 183, 46 S.E. 371.

By final decree entered July 13, 1953, the circuit court denied the plaintiffs the relief prayed for, dismissed the suit, and awarded costs in favor of the defendants against the plaintiffs. For this judgment this Court granted this appeal upon the petition of the plaintiffs.

The present controversy originated from a written contract dated June 21, 1945, between J. G. Fredeking and the plaintiff Nell Fredeking, his wife, as lessors, and the defendant O. R. Grimmett, as lessee, by which the lessors leased a filling station and garage building owned by them as tenants in common located on Second Avenue in the City of Hinton to the defendant Grimmett for a period of ten years from July 1, 1945. The lease provided that the lessee should pay to lessors as rental for the leased premises twenty dollars per month, in advance, and one cent per gallon on all gasoline sold at the filling station and that the payments on such gasoline should be made on the first day of each month from and after August 1, 1945. The lease further provided that the lessee should purchase exclusively gasoline, kerosene and oil products from J. G. Fredeking who was then engaged in the business of selling gasoline; that the lessee should pay all expenses in connection with the operation of the filling station and maintain the building and the equipment in good repair during the term of the lease and at its termination surrender the premises in like condition subject to ordinary wear and tear; that the lessee should not assign or transfer the lease without the written consent of the lessors; and that upon default in the payment of rent for any month or the breach of any condition, which continued for fifteen days, the lessee should without notice immediately surrender the leased premises to the lessors.

Prior to the execution of the written lease of June 21, 1945, the defendant Grimmett had operated the premises as a service station in the name of Da & Nite Service Station under an oral lease from the owners J. G. Fredeking and Nell Fredeking who caused the property to be improved at a cost of several thousand dollars.

On August 5, 1945, J. G. Fredeking, who the owned an undivided one half interest in the property, died intestate, leaving surviving him the plaintiff Nell Fredeking as his widow and two children by a former marriage, J. G. Fredeking, Jr., and William Walter Fredeking, who were adults when this suit was instituted, and two infant children, the plaintiffs Helene Marie Fredeking the Herbert A. Fredeking, as his heirs. Prior to the institution of this suit J. G. Fredeking, Jr., and William Walter Fredeking each conveyed his undivided one eighth interest in the property and the lease to Nell Fredeking who when this suit was instituted owned and now owns an undivided three fourths interest and dower in one half of the undivided one half interest owned by her husband J. G. Fredeking, and each of the infants Helene Marie Fredeking and Herbert A. Fredking owned and still owns an undivided one eighth interest in the property, subject to the dower of Nell Fredeking. In 1947 Nell Fredeking qualified as guardian for the infants Helene Marie Fredeking and Herbert A. Fredeking and since that date she has continued to act as their guardian.

After the death of J. G. Fredeking his brother W. T. Fredeking qualified as administrator of the estate of J. G. Fredeking and continued to act as such until the estate was settled in October, 1948. While acting as administrator W. T. Fredecking, without any express authority from Nell Fredeking in her own right or as guardian, but in the mistaken belief, which was likewise shared by Nell Fredeking, that as administrator it was his right and duty to administer the leased property, generally managed and looked after that property, collected such rent as was paid by the defendants O. R. Grimmett and Three Hundred Taxi, Inc., and distributed the rent collected by him to Nell Fredeking personally and as guardian of Helene Marie Fredeking and Herbert A. Fredeking. From January, 1946, until the settlement of the estate in 1948, and afterwards until July, 1950, W. T. Frdeking expended $1,462.95 for improvements and repairs to the leased premises and after the settlement and until sometime in 1950 he continued to collect and distribute rent received from the premises. In 1950, after several demands upon W. T. Fredeking by Nell Fredeking for the records of the transactions conducted by him in connection with the leased premises she received the records and after examining them she and the two infants instituted this suit.

After the execution of the written lease the defendant O. R. Grimmett continued to occupy the leased premises and to operate the service station until July 1, 1948. While doing so he also maintained a fleet of taxicabs which were furnished with gasoline at the service station. He conducted the service station business and the taxicab business separately and operated the one as the Da & Nite Service Station and the other as the Three Hundred Taxi Company. He purchased the gasoline, which was sold at retail and furnished to his taxicabs at the service station, both before and after the execution of the lease, from a partnership known as Service Oil and Gas Company, in which J. G. Fredeking and Nell Fredeking were partners and of which J. G. Fredeking was the manager until his death in August 1945. After the death of J. G. Fredeking that partnership was dissolved and a partnership known as Fredeking Distributing Company, in which Nell Fredeking was a partner until sometime in 1950, and of which W. T. Fredeking was the manager, was formed and the defendant Grimmett purchased from the new partnership the gasoline used at the service station. Each partnership acted as the distributor of gasoline for Esso Standard Oil Company from which the gasoline used at the service station was obtained. Nell Fredeking, as a partner, had access to the records of each partnership but she did not request...