Gekitner v. Johnson

• Citation: 270 S.W. 442
• Decision Date: 03 February 1925
• Docket Number: No. 18800.,18800.
• Parties: GEKITNER v. JOHNSON.
• Court: Missouri Court of Appeals

270 S.W. 442

GEKITNER v. JOHNSON.

No. 18800.

St. Louis Court of Appeals. Missouri.

February 3, 1925.

Appeal from St. Louis Circuit Court; Charles B. Davis, Judge.

"Not to be officially published."

Action by John H. Gentner against Jesse J. Johnson with counterclaim by defendant.

Judgment for defendant on plaintiff's cause of action and on the counterclaim, and plaintiff appeals. Reversed and remanded.

George Eigel, of St. Louis, for appellant. Keil & Keil and Coffman & Jackson, all of St. Louis, for respondent.

NIPPER, J.

Plaintiff brought this action in a justice court to recover rent for certain premises leased by plaintiff to the defendant. This suit was instituted by plaintiff filing the following statement before the justice:

                To amount due plaintiff "for rent of premises
                20081,E Market street from March 1 to March
                31, 1921, at $75 per month, according to the
                terms of lease .............................. $ 75 00
                To amount due plaintiff for rent of premises
                from April 1 to April 30, 1921, and from
                May 1 to June 1, 1921, at $100.00 per month
                according to the terms of the lease..........  200 00
                                                              _______
                  Total ..................................... $275 00
                

Defendant filed the following answer and counterclaim:

"Comes now the defendant in the above-entitled cause, and for his answer thereto denies each and every allegation therein contained.

"Counterclaim.

"The defendant by way of counterclaim states that he has a just and meritorious claim against the plaintiff's cause of action aforesaid; that on or about the — and before the commencement of this action the plaintiff was indebted to the defendant as hereinafter set out.

"That the defendant agreed when renting the premises known as 2008 Market street from the plaintiff and subtenant that the plaintiff would purchase from him all the fixtures and equipment connected with the Regina Shoe Shining Parlor and would release the defendant from further payment of rents if the business failed to be a paying project, and at the same time would reimburse the defendant for any sums paid out while making his test of the profits from this undertaking.

"That a month after going into the premises the defendant notified the plaintiff that the business was not profitable, then one named Sam Prussen offered to buy, but this plaintiff refused to negotiate with him and has ever since refused to carry out his original agreement with the defendant; that this defendant signed an agreement to this effect, and which the plaintiff now refuses to carry out. "That this defendant is not indebted to plaintiff on account of his breaching his agreement and entering into a partnership agreement thereafter, failing to purchase the equipment and fixtures on the agreed time and terms; that the defendant has been damaged in the sum of $500.

"Wherefore defendant prays judgment on plaintiff's cause of action and judgment in the sum of $500 on his counterclaim against the plaintiff and for costs expended."

The case was taken by appeal to the circuit court. Plaintiff, to sustain the issues, offered in evidence a lease, dated the 24th day of November, 1920, by the terms of which plaintiff, leased to the defendant a certain room located on the first floor, and known as 2008% Market street, for a term of two years, to be used as a shoe-shining parlor. The rent to be paid plaintiff was $75 a month until April 1, 1921, after which defendant was to pay the sum of $100 a month. The lease was in proper form, and executed by the parties to this action.

According to plaintiff's testimony, defendant took possession of the premises and failed in the payment of the rents for the periods mentioned in the statement filed. In fact, it is conceded that defendant did not pay the rent. Defendant leased the premises from one Lowenstein, who was acting as agent of plaintiff in the transaction.

Over the objections of plaintiff, the court permitted the defendant to testify...