Handlan v. Stifel

• Decision Date: 21 June 1921
• Docket Number: Mo. 17371.
• Citation: 232 S.W. 245
• Parties: HANDLAN v. STIFEL et al.
• Court: Missouri Court of Appeals

232 S.W. 245

HANDLAN v. STIFEL et al.

Mo. 17371.

St. Louis Court of Appeals. Missouri.

June 21, 1921.

Rehearing Denied June 29, 1921.

Appeal from St. Louis Circuit Court; Vital W. Garesche, Judge.

"Not to be officially published."

Suit by A. H. Handlan against Otto F. Stifel and another. From judgment for defendants, plaintiff appeals. Affirmed. See, also, 219 S. W. 616.

Frumberg & Russell, of St. Louis, for appellant.

Lyon & Swarts, of St. Louis, for respondents.

ALLEN, P. J.

This is a suit in equity whereby plaintiff seeks to enjoin the defendants from removing certain seats from a "grand stand" in a baseball park formerly occupied by the defendants under a lease from plaintiff. At the time of the institution of the suit some of the seats in question had been removed from the grand stand, but under a stipulation of the parties they were restored to the premises, and a temporary restraining order theretofore granted by the court was dissolved. The trial below upon the merits resulted in a judgment in favor of the defendant, dismissing plaintiff's petition, from which judgment plaintiff prosecutes the appeal now before us.

There is but little, if any, dispute as to the facts. Plaintiff was the owner of a tract of land located at Grand and Laclede avenues in the city of St. Louis, suitable for a baseball park. On January 22, 1914, plaintiff leased the land to the defendant Stile], as lessee, for a term of three years, beginning April 10, 1914, at a yearly rental of $10,000, which lease was subsequently assigned by Stifel to his codefendant, the St. Louis Federal League Baseball Company. In addition to the rental the lessee agreed to pay all taxes, general and special, assessed against the leased premises, and as a further consideration agreed erect a "suitable grand stand" on the property during the term of the lease, at his own cost and expense. The lease does not prescribe the purposes for which the lessee shall use the premises; and there is no restriction or limitation upon the use thereof, except that the lessee shall not use the property, or suffer it to be used, for any purpose or proceeding prohibited by law or ordinance. The lease provided that the lessee should have no right to make any sublease, in whole or in part, or assignment of any of his right, title, or interest under the lease, until the above-mentioned grand stand had been erected and paid for by him. By the terms of the lease the lessee was granted the privilege of purchasing the property, at any time during the term, for $250,000. The lease further provided as follows:

"In the event of the failure of the lessee to exercise the privilege to purchase, then said grand stand and all improvements made on aforesaid property, during the term of said lease, shall be and become the absolute property of lessor at the expiration of said term."

Pursuant to the terms of the lease, Stifel, as lessee, erected a grand stand upon the property, and then assigned the lease to the baseball company, a Missouri corporation engaged in giving baseball exhibitions for profit. Thereupon said company installed in the grand stand more than 6,000 seats or chairs for the accommodation of its patrons, the seats being installed in rows conforming to the aisles and exits, and in order to prevent them from tipping over they were screwed to the floor of the grand stand by small screws, and were bolted together in such manner as to enable any seat to be readily removed. In the boxes which were in the forward part of the grand stand, there were loose or detached seats or chairs, but they are not here in controversy. In addition to the grand stand, the company erected other improvements on the leased premises, and in April, 1914, began giving baseball exhibitions there. The right of purchase given to the lessee was not exercised, and prior to the expiration of the term of the lease the baseball company began to remove the seats, resulting in the institution of this suit.

During the pendency of the appeal in this court, both plaintiff and defendant Stifel have died, and the cause has been duly revived in favor of Eugene W. Handlan, Alexander H. Handlan, and Edward W. Handlan, executors of the will of A. H. Handlan, deceased, and against Ella Stifel, executrix of the will of Otto F. Stifel, deceased.

The only question here involved is whether these seats remained personal chattels, or whether they became a part of the realty so as to pass to the plaintiff, as lessor, upon the expiration of the lease. What is termed the "floor" of the grand stand was of wood, and consisted of tiers of low platforms, each elevated perhaps 11 inches above that in front of it, upon which the seats rested. While the seats were fastened to the wooden surface beneath them by light screws, the evidence shows that they could be readily removed, with reasonable care, without doing any material damage to the surface upon which they rested. The argument for appellant is not here predicated, to any extent, upon the character of the annexation, but proceeds rather upon the theory that the agreement of the lessee, in the lease, to provide a "suitable grand stand," included the furnishing of seats or chairs therein. It is said that when the lessee contracted to erect a suitable grand stand he contracted to furnish everything necessary for that purpose; that "a grand stand without seats would be as useless and anomalous as a grand stand without a roof"; and that the lessee would have no more right to remove the seats than to remove the floor.

Whether a chattel which has been annexed to the freehold becomes a part of the realty or otherwise is in general a question depending for its solution upon what may appear as to the actual or presumed...