Freund Motor Co. v. Alma Realty & Inv. Co.

• Decision Date: 03 July 1940
• Parties: FREUND MOTOR COMPANY, A CORPORATION, RESPONDENT, v. ALMA REALTY & INVESTMENT COMPANY, A CORPORATION, APPELLANT
• Court: Missouri Court of Appeals

142 S.W.2d 793

235 Mo.App. 587

FREUND MOTOR COMPANY, A CORPORATION, RESPONDENT, v. ALMA REALTY & INVESTMENT COMPANY, A CORPORATION, APPELLANT

Court of Appeals of Missouri, St. Louis

July 3, 1940

Motion for rehearing overruled September 13, 1940.

Writ of Certiorari denied November 9, 1940.

Appeal from Circuit Court of City of St. Louis.--Hon. Eugene J Sartorius, Judge.

AFFIRMED.

Judgment affirmed.

Dubail Judge & Winter and Robert G. Winter for appellant.

(1) Declaratory Judgment Act, Laws of Missouri 1935, pp. 218-220; Lich v. Lich, 158 Mo.App. 400, 138 S.W. 558; Williston on Contracts (Rev. Ed., 1937), p. 3672, sec. 1288; Hannibal Trust Co. v. Elzea et al., 315 Mo. 485, 296 S.W. 371; The County of Johnson v. Wood, 84 Mo. 489; Brendley v. Meara, 209 Ind. 144, 198 N.E. 301. (2) State ex rel. National Life Ins. Co. v. Allen, 301 Mo. 631, 256 S.W. 737. (3) The term "gross sales" does not make the lease in question ambiguous. Words used in a written instrument are to be interpreted according to their usual and ordinary meaning. The terms "gross sales," "gross" and "sales" are terms of common usage which have been defined by the courts. Maupin v. Southern Surety Co., 205 Mo.App. 81, 220 S.W. 20; Missouri Athletic Association v. Delk Investment Corp., 323 Mo. 765, 20 S.W.2d 51; State v Hallenberg-Wagner Motor Co., 341 Mo. 771, 108 S.W.2d 398; Seven Southerland Sisters v. McInnerney et al., 24 Misc. 720, 53 N.Y.S. 771; San Antonio Machine & Supply Co. v. Allen (Tex. Com. App.), 284 S.W. 542. (4) If terms of the lease are ambiguous, the practical construction placed thereon by the acts and conduct of the original contracting parties is of the greatest weight in determining their true meaning. New York Central R. R. Co. v. Stoneman, 233 Mass. 258, 123 N.E. 679; McFarland v. Gillioz, 327 Mo. 690, 37 S.W.2d 911; Eisenstadt Mfg. Co. v. Star Bldg. Co. (Mo. App.), 233 S.W. 285; Clayton v. Wells, 324 Mo. 1176, 26 S.W.2d 969; Scotten v. Met. Life Ins. Co., 336 Mo. 724, 81 S.W.2d 313; Schweitzer v. Patton (Mo.), 116 S.W.2d 39; Lacy v. American Central Life Insurance Co. (Mo. App.), 115 S.W.2d 193; John Deere Plow Co. v. Cooper, 230 Mo.App. 167, 91 S.W.2d 145. (5) Under the maxim expressio unius est exclusio alterius, since the lease expressly provided for the exclusion from "gross sales" of cars sold at cost to other Chevrolet dealers, the court may presume that the parties meant to include all other sales. 13 C. J., sec. 500, p. 537; Century Parlor Furn. Co. v. Harty Bros. & Harty Co., 141 Ill.App. 17; Thomas Beck & Sons v. Economy Coal Co., 149 Iowa 24, 127 N.W. 1109. (6) The rentals paid by the respondent to the appellant, not being made under duress, were voluntary payments and cannot, therefore, be recovered. Ferguson v. Butler County et al., 297 Mo. 20, 247 S.W. 795; Pritchard v. People's Bank of Holcomb, 198 Mo.App. 597, 200 S.W. 665; Douglas v. City of Kansas City, 147 Mo. 428, 48 S.W. 851; Emmons v. Scudder, 115 Mass. 367; Claflin et al. v. McDonough, 33 Mo. 412. (7) Palmer v. Welch, 171 Mo.App. 580, 154 S.W. 433; State ex rel. Moss v. Hamilton et al., 303 Mo. 302, 260 S.W. 466; State to use of Nee v. Tippin et al., 217 Mo.App. 480, 268 S.W. 665.

Arthur J. Freund for respondents.

(1) Laws of Mo. 1935, p. 218; Mo. Stat. Ann., par. 1097a et seq., p. 1388; Tolle v. Struve, 124 Cal.App. 263, 12 P.2d 61, 63; James v. Hall, 88 Cal.App. 528, 264 P. 516; Alfred E. Joy Co. v. New Amsterdam Cas. Co., 98 Conn. 794, 120 A. 684; Holly Sugar Corp. v. Fritzler, 42 Wyo. 446, 296 P. 206; Parkford v. Union Drilling & Petroleum Co., 118 Cal.App. 538, 5 P.2d 440; Cook v. Winklefleck (Cal. App.), 59 P.2d 463, 465-466; Town of Manchester v. Town of Townshend (Vt.), 192 A. 22; Continental Ins. Co. v. Riggs (Mo. App.), 126 S.W.2d 853, 121 A. L. R. 1421, 1424; U. S. Fid. & Guar. Co. v. Koch (C. C. A. 3), 102 F.2d 288; Ballard v. Mutual Life Ins. Co. of New York (C. C. A. 5), 109 F.2d 388, 391; Thompson v. Moore (C. C. A. 8), 109 F.2d 372, 373. (2) Seven Southerland Sisters v. McInnerney et al. (N. Y.), 53 N.Y.S. 771; State ex rel. National Life Ins. Co. v. Hyde, 292 Mo. 342, 241 S.W. 396; Amzi Realty & Bldg. Co. v. Kelly (Mo. App.), 49 S.W.2d 214; Burman v. Vezeau, 231 Mo.App. 1109, 1116, 85 S.W.2d 217. (3) 1 Am. Law Institute Restatement of Contracts, par. 236, p. 327; McCartney v. Guardian Trust Co., 274 Mo. 224, 238, 202 S.W. 1131; Burman v. Vezeau, 231 Mo.App. 1109, 1114, 85 S.W.2d 217; White v. Murphy (Mo. App.), 236 S.W. 674, 675; Stockham v. Leach et al., 210 Mo.App. 407, 418, 238 S.W. 853. (4) Emery Bird Thayer Dry Goods Co. et al. v. Williams (C. C. A. 8), 107 F.2d 965, 973; 21 R. C. L., pp. 154, 155; American Brewing Company v. City of St. Louis, 187 Mo. 367, 377, 86 S.W. 129; Link et al. v. Aiple-Hemmelmann Real Estate Co., 182 Mo.App. 531, 539, 165 S.W. 832; Brown v. Worthington, 162 Mo.App. 508, 516-517, 133 S.W. 93; Wells v. Adams, 88 Mo.App. 215, 225; Duke v. Force, 120 Wash. 599, 208 P. 67, 23 A. L. R. 1354, 1366. (5) Brinkerhoff-Faris Trust Co. v. Horn, 83 Mo.App. 114, 120; Blodgett v. Perry, 97 Mo. 263, 272-273, 10 S.W. 891; Grafeman Dairy Co. v. Northwestern Bank, 290 Mo. 311, 336, 235 S.W. 443; Charter Oak Inv. Co. v. Felker (Mo. App.), 60 S.W.2d 655, 657; American Life Ins. Co. v. Hutcheson (C. C. A. 6), 109 F.2d 424, 427.

SUTTON, C. Hughes, P. J., and McCullen, JJ., concur; Becker, J., not sitting, because absent when the cause was submitted.

OPINION

SUTTON, C.

This is an action in equity, commenced on March 3, 1937, for a declaratory judgment construing a lease and for the recovery of rents paid under the lease. The lease was executed on December 18, 1934, by defendant, Alma Realty & Investment Company, to the Edwards Chevrolet Company, demising a certain automobile salesroom, garage, and machine shop, located in the City of St. Louis, and known as 3806 South Kingshighway Boulevard, for a term commencing on March 23, 1935, and ending on March 31, 1940, "at a rental based upon an amount equal to one per cent of the total gross sales made by the lessee from all sources during the term of this lease, such rental to be payable on the 10th day of each month for the sales made during the previous month." The lease also gives the lessee an option to renew the lease for an additional term of five years on condition that in addition to the rent specified the lessee shall pay the lessor an additional sum of $ 50 per month, that is to say, that the monthly rental for the renewal period shall be based upon one per cent of the gross sales plus the sum of $ 50 per month.

After the execution of the lease, the Edwards Chevrolet Company conducted the business of a Chevrolet automobile dealer in the leased premises, selling at retail to the public Chevrolet automobiles, in conjunction with a repair shop and Chevrolet automobile service facilities, and general repair shop for all makes of automobiles.

On October 29, 1935, plaintiff purchased the business of the Edwards Chevrolet Company in the leased premises, including all of the right, title, and interest of the Edwards Chevrolet Company in the lease, and the lease was duly assigned to plaintiff by said Edwards Chevrolet Company. Upon the assignment of the lease an agreement in writing was entered into between plaintiff and defendant whereby defendant agreed and consented to the assignment with an amendment of the lease providing that the option given the lessee to renew the lease for a term of five years was on condition that the annual rental for the renewal period should be a minimum amount of $ 5400 in the event one per cent of the gross sales should not equal that sum, the lessee agreeing to use the demised premises only for the purpose of conducting the Chevrolet automobile agency.

The Edwards Chevrolet Company occupied the premises from March 23, 1935, to October 19, 1935, and during that period paid defendant a rental equal to one per cent of the total gross sales made by it, such one per cent of sales being computed by taking one per cent of the sale price of new cars to customers regardless of whether payment by the customer was made in cash or by cash and a used car, and by taking one per cent of the sale price of used cars to customers regardless of whether payment by the customer was made in cash or by cash and a used car.

The rents paid by the plaintiff on sales made by it during the period from October, 1935, to September 30, 1938, amounted to $ 11,937.43. These rents were paid on the basis of one per cent of the total gross sales calculated in accordance with defendant's construction of the lease, that is, that the term "total gross sales," as applied to the sale of a new automobile, means the sale price of the new automobile, without deducting the amount of the allowance made for a used automobile taken in trade on the sale price of the new automobile, and a like percentage on the resale of the used automobile so taken in trade. There was thus an overpayment of rents in the amount of $ 3357.67 according to plaintiff's construction of the lease, that is, that the term "gross sales," as applied to the sale of a new automobile is the sale price less the amount of the allowance made for a used automobile taken in trade on the sale price of the new automobile, so that defendant is entitled to one per cent on the sale price less the amount allowed for a used car taken in trade, and one per cent on the amount of the resale of the used car similarly determined.

The court found the issues in favor of plaintiff, construed the lease in accordance with plaintiff's construction of it, found that plaintiff had overpaid defendant $ 3357.67, and that plaintiff was entitled to interest thereon in the amount of $ 48.69, and gave judgment accordingly. Defendant appeals.

The bone...