Gary Realty Co. v. Kelly

• Decision Date: 28 March 1919
• Docket Number: No. 19836.,19836.
• Citation: 278 Mo. 450,214 S.W. 92
• Parties: GARY REALTY CO. v. KELLY et al.
• Court: Missouri Supreme Court

214 S.W. 92

278 Mo. 450

GARY REALTY CO. v. KELLY et al.

No. 19836.

Supreme Court of Missouri, Division No. 2,

March 28, 1919.

Rehearing Denied June 3, 1919.

Motion to Transfer to Supreme Court in Banc Denied July 5, 1919.

Appeal from Circuit Court, Jackson County; Thomas B. Buckner, Judge.

Action by the Gary Realty Company against E. P. Kelly and others. Judgment for plaintiff, and defendants appeal. Affirmed.

This is an action under our forcible entry and unlawful detainer statutes for the possession of certain premises situate in Kansas City. Plaintiff had judgment for possession; for damages, assessed at $2,000, which sum was doubled by the court; for future rents and profits assessed at $650 per month, pending appeal and till possession be delivered to plaintiff, which sum was likewise doubled. Whereupon, defendants Kelly, Le Marquand, and Le Doux appealed in the conventional way.

The action originated before a justice of the peace and was begun by filing a complaint which, formal parts and signature of counsel omitted, reads thus:

"Gary Realty Company, a corporation, duly organized and existing according to law, plaintiff, complains of E. P. Kelly, Paul Le Marquand, A. Le Marquand, O. Le Doux, F. G. Bonfils, Harry H. Tammen and Empress Theater company, a corporation, defendants, and says that on the 29th day of October, A. D. 1915, and long before that time, he was in the lawful and peaceable possession of the certain premises situated in Kansas City, Jackson county, Mo., described as the certain (formerly store) room at the northwest corner of Twelfth and McGee streets in said city having a frontage of 20 feet, 10 inches on said Twelfth street and extending back northward the full depth of lot 134, Swope's addition in said city, and still further north beyond the north line of said lot, approximately 16 feet, said room having been used as a part of the lobby of the Empress Theater in the city of Kansas City, Kaw township, of the county of Jackson; state of Missouri, and has ever since been and still is entitled to the possession thereof; that on the said 29th day of October, 1915, the defendants willfully and unlawfully held over and detained possession of said premises, or wrongfully and without force, by disseizin, obtained possession of said premises, and have ever since held and still hold possession thereof wrongfully and unlawfully; and although the plaintiff did, on the 30th day of October, 1915, demand in writing the possession of said premises of the de fendants, they, the said defendants, refused and neglected to quit the possession thereof, to the plaintiff's damage in the sum of two thousand ($2,000.00) dollars. Wherefore plaintiff demands judgment for the possession of said premises and for said damages."

Thereafter, by certiorari under the statute defendants caused the proceedings to be removed to the circuit court of Jackson county. In the latter court, and at the December term, 1915, semble, a stipulation waiving trial by jury was duly filed in the case. This stipulation, omitting formal parts and signatures of counsel, reads thus:

"Come now the parties hereto and by their attorneys hereby stipulate and agree that the trial of this cause by jury is hereby waived and that said cause may be set for trial on any day during the first week of January, 1916, term of court or thereafter, according to the convenience of the court."

On the same day on which the above stipulation was filed, defendants Kelly, Le Marquand, and Le Doux filed formal answers, which consisted in all pertinent parts of (a) general denials except of the fact of possession, which defendants Kelly, Le Marquand, and. Le Doux admitted; (b) a plea of ownership and possession under a purchase by said defendants of the lease at a sale by the receiver of the Empress Theater Company, pursuant to an order of the circuit court; (c) a tender, as such tenants so in possession, of all rent due according to the tenor of the instrument of lease evidencing the term so purchased; and (d) a waiver of forfeiture by plaintiff of conditions broken, arising, it is averred, from the acceptance of the rent and the recognition of the receiver as plaintiff's tenant. Defendants Bonfils and Tammen filed general denials which included, of course, negation of the fact of possession.

Thereafter, defendants Kelly, Le Marquand, and Le Doux (who, since they alone have appealed, we shall hereinafter call defendants), filed a motion to require plaintiff to elect, for that the allegation in plaintiff's complaint that "the defendants willfully and unlawfully held over and detained possession of said premises, or wrongfully and without force, by disseizure, obtained possession of said premises, and have ever since held and still hold possession thereof wrongfully and unlawfully," was "an attempt to charge the defendants with both unlawful detainer and forcible entry and detainer," and that "said causes of action being entirely separate and distinct cannot under the law be charged in the same cause of action." This motion to elect was overruled. Thereafter, on January 29, 1918, defendants filed a demurrer to the complaint, which demurrer, in addition to the customary allegation that the facts set forth in the complaint are not stfficient to constitute a cause of action, further averred "that several causes of action have been improperly united." While this demurrer was overruled, plaintiff on the same day asked and was given leave to file an amended complaint within four days thereafter. Whether the demurrer, as the practice is, was overruled upon and because of the request of plaintiff for leave to file an amended complaint, does not affirmatively appear, since no reason is given in the record for the trial court's action in this behalf. Afterwards, and within the four days allowed by the court, plaintiff filed an amended complaint in two counts. The first count charges the holding over of the possession of the premises willfully and without force after the expiration of the term; while the second count charges the obtention of possession and the withholding thereof wrongfully and without force by disseizin after demand therefor made in writing. Since the court found in favor of plaintiff upon the first count only, no necessity is seen for burdening this necessarily lengthy statement with a recital of the second count. But the first count is pertinent, since about it as a storm center rage well-nigh the whole of the contentions made. It reads thus:

"Comes now the complainant, Gary Realty Company, and for its first cause of action against defendants, states that complainant is and was at all times hereinafter mentioned a corporation organized and existing under the laws of Missouri, and complains to the above-entitled court that on or about the 30th day of October, 1915, and at the time of the institution of this action, complainant had the legal right to the possession of the certain premises (together with the improvements thereon) situated in Kansas City, Jackson county, Missouri, and in Kaw township in said city, described as the certain room at the northwest corner of Twelfth and McGee streets in said city having a frontage of twenty feet, ten inches on said Twelfth street and extending back northward therefrom the full depth of lot one hundred thirty-four (134) Swope's addition in said city, and still further north, beyond the north line of said lot, approximately sixteen feet, said room having formerly been used as a store room but more recently and at the present time being used as a part of the lobby of the Empress Theater conducted by defendants in said city; that complainant has been ever since the date aforesaid and still entitled to the possession of said premises and improvements; and that defendants wilfully and without force hold over the possession of said premises after the expiration of the time for which they were let to one H. C. Robertson and his assignee, Empress Theater Company (another and different corporation than the defendant of the same name) and also to one Cyrus Jacobs, receiver, as a month to month tenant, and after demand, made in writing for the delivery of the possession thereof; and complainant says that it is ignorant whether or not defendants claim right to possession of said premises under and through said Robertson, Empress Theater Company and Cyrus Jacobs, receiver, but complainant believes and therefore alleges the fact to be that defendants hold possession claiming either under said Robertson, Empress Theater Company and Cyrus Jacobs, receiver, or some other person or corporation unknown to complainant, and in either event defendants hold over possession of said premises after the expiration of the time for which same were let to any one whomsoever.

"Complainant further states that it has sustained damages by reason of the unlawful detainer aforesaid in the sum of five thousand ($5,000.00) dollars and that the value of the monthly rents and profits of said tenements is eight hundred ($800.00) dollars.

"Wherefore, the complainant prays judgment of restitution and for his damages and the value of the monthly rents and profits of the premises aforesaid."

To the above complaint defendants filed an amended answer—in fact, two amended answers—in which, in addition to the pleas heretofore set forth, they raised the issue of estoppel bottomed on the allegation that plaintiff had filed, in the proceeding for a receiver brought by defendants Bonfils and Tammen against the Empress Theater Company, an intervening petition for damages accruing on account of past-due rent.

The facts of the case, apart from the very complicated nature of the pleadings, are, briefly: That plaintiff leased the premises in dispute to one Robertson, who sublet them to the Empress Theater Company for a term of five years (with an option of five years more upon certain conditions) from the 1st day of October, 1914, at a rental of $500...