Hamburger. v. Hirsch

• Decision Date: 06 May 1919
• Docket Number: No. 15420.,15420.
• Citation: 212 S.W. 49
• Parties: HAMBURGER et al. v. HIRSCH et al.
• Court: Missouri Court of Appeals

212 S.W. 49

HAMBURGER et al. v. HIRSCH et al.

No. 15420.

St. Louis Court of Appeals. Missouri.

Argued and Submitted April 7, 1919.

Opinion Filed May 6, 1919.

Appeal from St. Louis Circuit Court; William T. Jones, Judge.

"Not to be officially published."

Action by Solomon Hamburger and others against Ralph Hirsch and others. Verdict for defendants. Plaintiffs' motion for new trial sustained, and defendants appeal. Reversed and remanded, with directions.

Henry H. Furth, of St. Louis, for appellants.

Greensfelder & Levi, of St. Louis, for respondents.

Statement.

REYNOLDS, P. J.

This is an action to recover rent for an unexpired term under a written lease, the lease executed between the parties demising to the defendants certain premises on the second floor of a building in St. Louis for a term commencing February 1st, 1911, and ending December 31st, 1915, subject, however, to the terms of another lease under which plaintiffs held the premises, by the original lease the rental being fixed at $780 per annum, or $65 per month, the installments payable in advance each month. By a subsequent agreement between the parties, and in consideration of increased space, the rental was changed from $65 to $75 a month. The lease contains this clause:

"The lessee is hereby given the option to cancel this lease as of the 31st day of January, 1913, provided it gives to the lessor written notice of its desire to cancel said lease on or before the 15th day of November, 1912, and if such notice is given by the lessee to the lessor, said lease shall then and thereby be terminated as of the 31st day of January, 1913, otherwise said lease shall remain in full force and effect for the full period thereof.

"If such notice is not given by the lessee to the lessor as herein provided, then said lease shall remain and be in full force and effect for a period terminating the 31st day of December, 1915."

It is averred in the answer that after the execution of the lease, and in the month of September, 1912, defendants (lessees) proposed to plaintiffs (lessors) to extend the option of terminating the lease from November 15th, 1912, the time provided in the lease, to the following month of December, to which proposition of the lessees, it is averred, plaintiffs then and there agreed, and it is averred that it was thereupon understood by and between the parties to the lease that the lessees would not exercise the option given them in the lease on or before November 15th, 1912, but would defer exercising said option until the month of December, 1912, and that the lessees, in consideration of the consent of the plaintiffs (lessors) to extend the term of the option, refrained from exercising the option to terminate the lease within the time named therein, that is to say, on or before November 15th, 1912, and thereafter, in the month of December, 1912, the lessees duly gave notice to the lessors of the intention of the former to terminate the lease as of January 31st, 1913, and the lease thereupon terminated, as it is averred, on that date. It is averred in the answer that this modification of the lease was not in writing and the lease as modified was not in writing and no note or memorandum of the parol modification or of the lease as modified by parol was made, signed by the parties to be charged therewith or by any person thereto by them lawfully authorized. It is further averred, in substance, that acting upon this parol variation of the term of the lease, defendants had refrained from giving a written notice on or before November 15th, 1912.

The reply took issue on these as well as upon other affirmative averments of the answer, which are substantially as above stated, although in different language.

Over the objection of plaintiffs at the trial of the cause the court admitted evidence of a parol agreement to the effect stated in the answer, defendants' testimony further being to the effect that all of the members of their firm were about to leave the city of St. Louis in September and expected to be absent until some time in December, and on that account, as they were not able to determine, owing to business complications, whether they would want an extension at the time they left the city; that they left St. Louis in September and did not return until the middle of December, when they gave the written notice, which plaintiffs refused to accept, insisting that it had not been given in writing at the time specified in the lease. It was also in evidence that on the surrender of possession of the premises by defendants to plaintiffs, although endeavoring to lease the premises to other parties, plaintiffs had been unable to do so until some time afterwards, when they had rented them to another party at a reduced rental. All this testimony as to the parol agreement claimed was objected to by plaintiffs as varying by parol the terms of an instrument required under the statute to be in writing. The objections were overruled and exception duly saved.

At the instance of plaintiffs the court instructed the jury that plaintiffs were entitled to recover, unless the jury found "from the evidence that prior to November 15th, 1912, the plaintiffs waived the provision of the lease, requiring the defendants to give notice on or before November 15th, 1912, of their intention to terminate said lease and consented that such notice might be given after the return of the defendants from their trip in December, 1912, and you will find that a written notice was given by the defendants upon their return from their trip in December, 1912, of their intention to terminate said lease on the 31st day of January, 1913."

At the instance of plaintiff the court also instructed as to the measure of damages.

At the instance of defendant the court instructed the jury that if they believed from the evidence that plaintiffs, "prior to November 15th, 1912, waived the provision of the lease requiring defendants to give notice before November 15th, 1912, of their intention to terminate said lease by consenting that such notice might be given after the return of defendants from their trip in December, 1912; and if the jury believe and find from the evidence that in reliance upon said waiver, defendants forbore to give such notice until after the 15th day of November, 1912, and that they gave such notice after their return in the month of December, 1912, then the verdict should be for defendants."

Of its own motion the court gave other instructions and also refused certain instructions asked by defendants as well as by plaintiffs which it is unnecessary to notice.

There was a verdict for defendants. Plaintiffs filed a motion for new trial, which set out ten grounds, two of them, numbered 8 and 9, the 8th being as follows:

"Eighth. That the court erred in admitting oral evidence for the purpose of showing an alleged change and modification of a written contract, which, under the law, to be binding and effective upon all parties, had to be in writing, and any modification, change or alteration thereof, to be binding and effective upon both parties, should have also been in writing and signed by the parties to the contract."

The 9th ground was substantially to like effect, adding an absence of an allegation and proof of a consideration for the alleged waiver of the terms and provisions of the lease.

The court sustained the motion for a new trial on the 8th and 9th grounds set out in the motion. Whereupon, saving exceptions, the defendants have duly appealed.

Opinion.

Section 2783, Revised Statutes 1909, provides:

"No action shall be brought * * * upon any contract made for the sale of lands, tenements, hereditaments or any interest in or concerning them, or any lease thereof, for a longer time than one year, * * * unless the agreement upon which the action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person by him thereto lawfully authorized. * * *"

This statute, the "Statute of Frauds," as it is called, is not here pleaded. But the answer sets up the alleged contract and avers it was verbal, and the reply denies any such contract. It is the general rule that to avail one's self of the Statute of Frauds, it must be pleaded, as see Graff v. Foster et al., 67 Mo. 512, loc. cit. 521, and cannot ordinarily be raised by demurrer, as see Missouri Real Estate Syndicate v. Sims, 179 Mo. 679, loc. cit. 685, 78 S. W. 1006. But the reply takes issue as to the contract or agreement set up in the answer. Hence the Statute of Frauds is available, even without specially pleading it. Hurt v. Ford, 142 Mo. 283, loc. cit. 301, 44 S. W. 228, 41 L. R. A. 823; Hillman v. Allen, 145 Mo. 638, loc. cit. 643, and cases there cited (47 S. W. 509).

While the decision of our Supreme Court in Missouri Real Estate Syndicate v. Sims, supra, has been cited in 20 Cyc. p. 314, note 49, in support of the proposition that in our jurisdiction it has been held that the Statute of Frauds must be pleaded, an examination of that case does not support this. All that is there said is that if defendant, by his demurrer, admits the allegation as to the consideration being paid and "defendant thinks that the Statute of Frauds has anything to do with the case, it is his privilege to plead it."

So we proceed on the assumption that the question here presented involves the application of the Statute of Frauds, section 2873, Revised Statutes 1909, supra.

Judge Gantt, speaking for our Supreme Court, in Warren v. A. B. Mayer Mfg. Co., 161 Mo. 112, 61 S. W. 644, has given a very learned and exhaustive opinion on this section of our statute, and has there held that a subsequent oral agreement made on a new and verbal consideration before the breach of the written agreement between the parties, if not within the Statute of Frauds, may enlarge the time of performing the written agreement, or may vary any other of its...