Garnhart v. Finney

• Decision Date: 31 March 1867
• Citation: 40 Mo. 449
• Parties: JOHN H. GARNHART, Respondent, v. JOHN FINNEY, Appellant.
• Court: Missouri Supreme Court

40 Mo. 449

JOHN H. GARNHART, Respondent,

v.JOHN FINNEY, Appellant.

Supreme Court of Missouri.

March Term, 1867.

Appeal from St. Louis Circuit Court.

The court gave the following instructions to the jury:

1. The plaintiff cannot recover in this cause unless he has proved to the satisfaction of the jury, that the lease read in evidence made by John Finney to Henry C. Brown was by written assignment transferred to the plaintiff with the assent of defendant; that within the time specified in said lease, or if the time was extended within such time as extended by John Finney, the lessee, or some person claiming under him, erected, or cause to be erected, on the ground mentioned in said lease, three good and substantial three-story brick houses, covering the entire southern front of said ground, and that all of the materials of every kind used in the erection of said houses were of good merchantable quality, and that the joists and timber used therein were of proper sizes for all such houses, and that all the outside walls were thirteen inch walls; or, that while said three brick houses were being erected on said premises, it was ascertained that they were not being built in conformity with the requirements of said lease, and that by reason thereof, and to save the forfeiture incurred thereby, Rhodes and the defendant agreed that if certain changes and alterations were made as determined upon by G. F. Barnett and L. D. Baker, and that such changes and alterations were made in accordance with the plans and directions of said Baker and Barnett, and that after such changes and alterations were made the said John Finney agreed to accept and did accept said houses, so altered and added to, as a full compliance with the terms of said lease in regard to the said three-story buildings.

2. If the jury, under the instruction No. 1, find the plaintiff is entitled to recover, they will assess his damages at the actual damage which they believe, from all the evidence, he has sustained by reason of the refusal of the defendant to renew said lease.

3. If the jury are satisfied from the evidence in this cause that said lease was not transferred by written assignments to said Garnhart, or that said three houses were not erected as specified in the instruction No. 1, or that said John Finney did not agree to accept, and did not accept, said houses, as altered and added to, as stated in said instruction No. 1, they will find for the defendant.

To the giving of these instructions the defendant excepted.

The defendant asked the following instructions:

1. If the jury believe from the evidence that on the 1st day of June, 1851, there had not been built on the lot demised by John Finney to H. C. Brown, by the lease read in evidence, three good and substantial three-story brick houses, covering the entire southern front of said lot, said houses being of proper depth for stores or dwelling houses--all materials of every kind used in their construction being of good merchantable quality, the joists and all other timbers being of proper size for such houses, and all outside walls being thirteen inches thick,--then the building covenant contained in said lease, to be performed by said Brown or his legal representatives, was broken, and in order to enable the plaintiff to recover in this action the said plaintiff must show that there was a new contract or agreement made between the legal representatives of said Brown and the said Finney stipulating for the renewal of said lease of the 1st of June, 1859, and there is no evidence of such a contract.

2. By the terms of the lease executed by defendant to H. C. Brown, and in evidence, the said Brown and his assigns covenanted to build on the lot demised within two years from the 1st of June, 1849, three good and substantial three-story brick houses, covering the entire southern front of said lot; said houses to be of proper depth for stores or dwelling-houses; all materials, of every kind, used in the erection of said houses, to be of good merchantable quality; the joists, and all other timbers, to be of proper size for such houses, and all outside walls to be thirteen inches thick. By another covenant in the lease the defendant agreed to renew the lease at the expiration of ten years, provided the lessee or his assigns should have performed all the covenants mentioned in the lease to be performed by said lessee or his assigns. The plaintiff brings this action in virtue of the last named covenant. The action can be maintained only in one of two cases: first, in case the said lessee or his assigns performed their covenants as stipulated in the lease; or, secondly, in case they did something which the defendant agreed to accept as an equivalent for such performance. After the 1st of June, 1851, no verbal agreement or promise between the defendant, on the one hand, and the holder of the lease-hold, on the other, could have the effect of enabling the plaintiff to maintain this action, provided that on the 1st of June, 1851, the said covenant to build was broken; and it was broken if on that day the houses called for by the lease had not been erected on the Morgan street front of said lot.

3. If the jury believe from the evidence that H. C. Brown, or his assigns, had not before the 1st of June, 1851, erected upon the lot demised by defendant, according to the lease read in evidence, three good and substantial three-story brick houses, covering the entire southern front of said lot, said houses being of proper depth for stores or dwelling-houses--all the materials of every kind used in their construction being of good merchantable quality, the joists and all other timbers being of proper size for such houses, and all outside walls being thirteen inches thick,--the building covenant contained in said lease, to be performed by said Brown or his assigns, was broken, and a covenant for a renewal of said lease, to be performed by the said defendant at the end of ten years from the 1st of June, 1849, was discharged; and the plaintiff cannot recover in this action without showing a new agreement in writing, signed by the defendant, expressly stipulating to renew the said lease, notwithstanding the breach of said building covenant. It will not be sufficient for this purpose that the jury should believe that some time after the 1st of June, 1851, the defendant agreed, either verbally or in writing, to extend for a specified time the period within which any of the covenants of the lease to be performed by the said H. C. Brown, or his assigns, might be completed. Nothing short of a contract in writing, signed by defendant, to renew the lease at the expiration of the ten years, will enable the plaintiff to maintain the action.

4. If, in putting up the building on the Morgan street front of the lot described in the lease in 1855, Rhodes, the owner of the leasehold, used materials and workmanship inferior to what are called for by the lease, as explained in a former instruction; and if some of the defects caused in the building thereby were visible and apparent to the defendant and objected to by him at the time, but others were for the time hidden from his observation, and for that reason not commented upon by him; and if by reason of inferior workmanship, care and materials so used by the said Rhodes, but not then known to the defendant, the buildings erected by him on said Morgan street front of said lot fell short of the description of the buildings called for by said lease, then the said building covenant was broken, and the plaintiff cannot recover.

5. If the jury believe from the evidence that after the 1st day of June, 1851, the covenant contained in the lease read in evidence respecting the building of the houses on the Morgan street front of said lot having been unperformed and broken, there was a conversation during the summer of 1851 between L. F. Hastings, then the owner of said leasehold, and the defendant, in which the defendant, as a matter of indulgence and favor to said Hastings, promised that if the said buildings were erected within three years of additional time, then that defendant would take no advantage of their not having been erected within the first two years of said term; and if the jury believe that this was the only extension of time granted by defendant for the erection of said buildings, and that the same were not completed until the month of October, 1855, then the plaintiff is not entitled to recover in this action.

6. If the jury believe from the evidence that in the year 1855, while Rhodes was engaged in building the houses on the Morgan street front of the lot demised to H. C. Brown by the lease read in evidence, the defendant objected to him that the same were not being built according to the lease, and threatened him with forfeiture of the said lease; and if the jury believe from the evidence that the said Rhodes was erecting houses on said front of a kind inferior in materials and workmanship to those called for in the lease; and if the jury believe that the said Rhodes and defendant did thereupon call on L. D. Baker and George Barnett to determine upon the changes, alterations and improvements of the said buildings to be made by the said Rhodes with the view of escaping the law of forfeiture; and if they further find that said Baker and Barnett did agree upon certain changes, alterations and improvements of said buildings to be made by said Rhodes under the supervision and to the satisfaction of said Baker, as the condition on which said forfeiture was to be waived,--then, unless the plaintiff has shown affirmatively that said changes, alterations and improvements were made by said Rhodes, and that the said Baker approved the same after they were completed, the plaintiff cannot recover in this action.

7. If the jury find from the evidence that the three three-story brick buildings required by the terms of the lease to be erected on the Morgan street front of the premises in...