Herboth v. American Radiator Co.

• Decision Date: 17 November 1909
• Citation: 123 S.W. 533
• Parties: HERBOTH v. AMERICAN RADIATOR CO.
• Court: Missouri Court of Appeals

123 S.W. 533

HERBOTH v. AMERICAN RADIATOR CO.

St. Louis Court of Appeals. Missouri.

November 17, 1909.

Rehearing Denied December 14, 1909.

1. LANDLORD AND TENANT (§ 152) — REPAIRS — SURRENDER — WAIVER OF PERFORMANCE.

Where a lease for a fixed term binding the lessee to surrender, at the expiration of the term, the premises in the condition received except natural wear and decay, and to repair from time to time any damage done to the premises by the negligence of employés, etc., was before its expiration extended by a new agreement stipulating that the covenants in the lease should remain in force during the term extended, the lessee could not escape liability for nonperformance of the covenants on the ground that he was discharged therefrom by the new agreement, as the new agreement bound him to perform the covenants in the lease, and against an express agreement the law will not imply from a surrender, if one occurred, a waiver of performance.

2. LANDLORD AND TENANT (§ 109) — LEASE — SURRENDER — WAIVER OF PERFORMANCE.

A bare acceptance by a landlord of a surrender of a prior lease and the granting of a new one to the tenant do not amount to a waiver of liability, existing at the time against the tenant on the covenants of the lease, but such acts extinguish the right to demand performance, or damages for nonperformance, of covenants which the tenant might have performed after the date of the surrender, and, unless performance of such covenants is required by express or implied stipulations in the new lease, it is waived.

3. LANDLORD AND TENANT (§ 152) — REPAIRS — COVENANTS — CONSTRUCTION.

A covenant in a lease binding the lessee to make repairs from time to time is not satisfied by making repairs at any time before the premises are surrendered to the landlord, but repairs must be made when needed.

4. LANDLORD AND TENANT (§ 152) — REPAIRS — COVENANTS — CONSTRUCTION.

A covenant in a lease binding the lessee to make repairs from time to time runs with the land and is binding on the assignee of the lessee.

5. LANDLORD AND TENANT (§ 152) — REPAIRS — COVENANTS — CONSTRUCTION — "ANY OTHER CAUSE WHATEVER."

A covenant in a lease binding the lessee at the expiration of the term to surrender the premises in the condition received except natural wear and decay, and to repair from time to time any damage done to the premises by the negligence of his employés, careless usage or from "any other cause whatever," does not bind the lessee to make repairs caused by natural wear and decay, for the words "any other cause whatever" mean any other cause except natural wear and decay.

6. LANDLORD AND TENANT (§ 160) — REPAIRS — COVENANTS — CONSTRUCTION.

A covenant in a lease binding the lessee at the expiration of the term to surrender the premises to the lessor, his heirs, assigns, or successors in the condition received, except natural wear and decay, runs with the land and is binding on the assignee of the lessee.

7. LANDLORD AND TENANT (§ 160) — CONDITION OF PREMISES AT TERMINATION OF LEASE — CONSTRUCTION — RENEWAL.

A lease for a fixed term bound the lessee to surrender the premises at the expiration of the term in the condition received. A renewal lease executed before the expiration of the term stipulated that the lessee should take the buildings in their present condition and should surrender possession thereof in as good condition as received. The lessee had altered the buildings before the renewal. Held, that the lessee was not required to return the premises at the end of the new term in the original condition, but must return them in the altered condition at the time of the renewal lease.

8. CONTRACTS (§ 245) — CONSTRUCTION — SUBSEQUENT CONTRACT.

Where a later contract is entered into between the same parties in relation to the same subject-matter as the earlier one, and fully covers the terms of the earlier one, the later contract supersedes the earlier one.

9. LANDLORD AND TENANT (§ 160) — CONDITION OF PREMISES AT TERMINATION OF LEASE — CONSTRUCTION — RENEWAL.

A lease for a fixed term bound the lessee to surrender the premises at the expiration of the term in the condition received. A renewal lease executed before the expiration of the term stipulated that the lessee should take the premises in their present condition and should, at the expiration of the new term, return them in the condition received. The lessee had altered the buildings before the renewal. Held, that performance of the covenant in the original lease was waived by the execution of the renewal lease because the lessee or his assignee had until the end of the original term in which to restore the premises to their original condition.

Appeal from St. Louis Circuit Court; Geo. H. Williams, Judge.

Action by Charles Herboth against the American Radiator Company. From a judgment for defendant, plaintiff appeals. Affirmed.

John A. Gilliam, for appellant. Geo. L. Edwards, for respondent.

GOODE, J.

Frederick C. Bonsack leased to the St. Louis Radiator Manufacturing Company by an instrument dated February 17, 1896, a tract of land with buildings on it in the city of St. Louis, which tract fronted 335 feet on the west side of Talmadge avenue where it intersected the Missouri Pacific Railroad Company's tracks, and had a depth of 146 feet along the north line of said railroad. On the premises stood a brick foundry and warehouse building which were included in the leasehold. The term was to run nine years and seven months and expire September 24, 1905, and the rental was to be $235 a month, payable in advance. The lessor Bonsack had erected the warehouse building for the use of the lessee and in accordance with its plans and specifications. One of the clauses of the lease was as follows: "And it is hereby covenanted that at the expiration of this lease the said premises are to be surrendered to said lessor, his heirs, assigns or successors, in the condition received, only excepting natural wear and decay or the effects of accidental fire; and it is hereby covenanted that said second party will, from time to time, repair, at its own expense and to the satisfaction of said lessor, any damage done to the said buildings, by negligence of its employés, careless usage or from any other cause whatever; and upon failure to do so, then it is agreed that said lessor, his heirs or assigns shall or may repair or remedy the same and the amount expended for the performance thereof, shall be repaid to him or them on demand."

The St. Louis Radiator Manufacturing Company assigned the lease on February 1, 1899, to Robert F. Hall, and the latter assigned it on February 11, 1899, to defendant, the American Radiator Company. These assignments were assented to by the lessor Bonsack by an instrument signed by him, by the original lessee, the St. Louis Radiator Manufacturing Company, and by defendant, on June 28, 1899, wherein, to quote from defendant's brief, "the American Radiator Company expressly agreed to be bound by all the conditions, stipulations, and penalties thereby imposed upon the St. Louis Radiator Manufacturing Company thereafter." Bonsack, the lessor, sold the premises to plaintiff Charles Herboth June 25, 1900, and on the same day assigned the lease to Herboth. On December 28, 1905, by an agreement in writing, executed by plaintiff and defendant, the original lease, which would not expire until September 24, 1905, was extended beyond the date of the expiration to December 31, 1905, or about three months. This instrument recited the making of the lease and its assignment to defendant, the acquisition of the fee to the premises by plaintiff, and that the parties had agreed to and did extend the term to expire December 31, 1905. In it was this clause: "It is further agreed and understood that all of the remaining covenants and agreements in said lease contained be and remain in full force and effect, except as herein modified, during the term thus extended."

Afterwards, on September 8, 1905, and while the original lease was still in force, plaintiff and defendant entered into articles of agreement by which plaintiff leased to defendant for three years from January 1, 1906, the premises let in the original lease, and at the same rental of $235 a month. The term created by the last agreement was for three years with a privilege to the lessee (defendant) to cancel the lease at the end of the second year by giving four months' written notice of its intention to do so. The lessor (plaintiff) was also allowed to cancel the lease at the end of the second year by giving four months' notice. Defendant exercised its option to cancel the lease by giving notice, and in consequence thereof the term ended December 31, 1906, and defendant removed from the premises. Among other terms of the last lease, to wit, the one executed September 8, 1905, between plaintiff and defendant, were the following: "And finally, at the end of its term it (i.e., defendant) will surrender to said Charles Herboth, his heirs or assigns, the peaceable possession of the said houses and premises, with all the keys, bolts, latches and repairs, if any, in as good condition as it received the same, the usual wear, use and providential destruction, or destruction by fire excepted. The said lessee and all holding under it, hereby engage to pay the rent above reserved, and double rent for every day, it or any one else in its name shall hold on to the whole or any part of said tenement after the expiration of this lease, or its forfeiture for nonpayment of rent, etc. * * * It is further agreed that the lessor shall not be liable for any damage done or occasioned by or from plumbing, gas, water, or other pipes, or sewerage in, above, upon or about said buildings or premises, nor from any damage arising from acts or neglect of co-tenants or other occupants of the same building, or from any owners or occupants of adjacent or contiguous property. * * * Lessee takes building and premises in their...