Herrmann v. Kaiser

• Decision Date: 10 September 1935
• Docket Number: No. 23162.,23162.
• Citation: 85 S.W.2d 928
• Parties: HERRMANN v. KAISER et al.
• Court: Missouri Court of Appeals

85 S.W.2d 928

HERRMANN v. KAISER et al.

No. 23162.

St. Louis Court of Appeals. Missouri.

September 10, 1935.

Rehearing Denied October 1, 1935.

Error to St. Louis Circuit Court; Robert W. Hall, Judge.

"Not to be published in State Reports."

Action by Arthur C. Herrmann, doing business as Mound City Provision Company, against Flora Kaiser and another. To review the judgment, plaintiff brings error.

Affirmed.

Dunbar & Dubail and Bryan Wilson, all of St. Louis, for plaintiff in error.

Leon M. Feigenbaum and Edward Hupert, both of St. Louis (Robert L. Aronson, of St. Louis, of counsel), for defendants in error.

SUTTON, Commissioner.

This is an action for the specific performance of a contract, for a lease, dated October 27, 1931, entered into between plaintiff and defendant Flora Kaiser on a packing plant located at 3910-3918 Cote Brilliante avenue, in the city of St. Louis, at a rental of $400 per month, and for a loan to be made by plaintiff to defendant Flora Kaiser of $3,000 to be evidenced by five notes executed by her, secured by a second deed of trust on the plant; the notes to be payable in one, two, three, four, and five years, respectively.

An injunction is also sought restraining defendant herein Flora Kaiser from prosecuting a suit brought by her before a justice of the peace in the city of St. Louis against the plaintiff herein for rent owing by him to defendant herein Flora Kaiser for the month of April, 1932, and for possession of said packing plant.

Plaintiff commenced this action on April 25, 1932, by filing in the office of the clerk of the circuit court of the city of St. Louis his petition, wherein he alleges that prior to October 27, 1931, he was renting the property at 3910-3918 Cote Brilliante avenue at a monthly rental of $250; that the property not being adequate for conducting plaintiff's business, defendants agreed to improve said property so as to be suitable for the conducting of plaintiff's business provided plaintiff would lend to defendants the sum of $3,000, and that plaintiff would lease of defendants the property when it was so improved for a period of five years at a yearly rental of $4,800, payable in installments of $400 per month, it being agreed between the parties that the property when so improved would be in first-class condition, and that defendants would furnish to plaintiff all the requirements needed in his business in the way of space, slaughtering house, hog house, office, and refrigeration, and that defendants would execute and deliver to plaintiff a second deed of trust on said property for the sum of $3,000 due in five years to be paid off at the rate of $600 per year, and that defendants would execute and deliver to plaintiff a lease on said property for the sum of $4,800 per year for a term of five years; that plaintiff pursuant to said contract lent to defendants the sum of $3,000; that defendants thereupon improved the property in accordance with the terms of said contract; that plaintiff has paid to defendants as rent under said contract the sum of $400 per month up to and including the month of March, 1932; that although plaintiff has often requested it, defendants have refused to execute said lease and said second deed of trust; that the refrigeration furnished by defendants to plaintiff was inadequate, and that plaintiff has so notified defendants on numerous occasions since February, 1932, and that defendants have failed to provide plaintiff with proper refrigeration; that on April 1, 1932, plaintiff demanded of defendants that they furnish him with proper refrigeration, and that they execute to him promissory notes and a second deed of trust and a lease in accordance with said contract; that defendants refused to execute the same; that defendants refused to furnish plaintiff proper refrigeration, and refused to execute such notes, deed of trust, and lease, but have instituted and prosecuted a landlord's suit against plaintiff before a justice of the peace in the city of St. Louis for the monthly rental of said property for the month of April, 1932.

On May 5, 1932, a temporary restraining order was issued enjoining defendants from the further prosecution of said suit pending in the justice court. On the same day plaintiff deposited in court $800 to be held pending the action of the court on the merits, and subject to the order of the court. Pursuant to stipulation, there was paid out of this deposit $200 on account of water license and electric service.

On August 20, 1932, defendant Flora Kaiser filed her separate answer and return, wherein she alleges that she is the owner in fee of the property numbered 3910-3918 Cote Brilliante avenue in the city of St. Louis, which consists of an office, slaughterhouse, coolers, sausage rooms, and hog house; that she entered into an agreement with plaintiff on October 27, 1931, whereby plaintiff agreed to lend her the sum of $3,000, and she agreed to execute to plaintiff five promissory notes of $600 each and a second deed of trust on the packing plant securing said notes, and whereby it was further provided that defendant would execute and deliver to plaintiff a lease on said property for a rental of $4,800 per year for a term of five years, and that she agreed to lease to plaintiff the buildings mentioned as and when completed by her, including the hog house and coolers; that she has complied with all the terms of said contract and has completed said building with all the rooms and cooler rooms and other improvements required, and that immediately upon said completion she offered and tendered to plaintiff the lease required by said contract; that in addition thereto she made, offered, and tendered to plaintiff the notes and deed of trust in the total sum of $3,000 in compliance with said contract after the completion of said building, but that plaintiff refused to accept said lease and sign said lease as required by him in the said contract and likewise refused to accept said notes and deed of trust; that she is willing and able to execute to plaintiff the lease, notes, and deed of trust as called for in said contract and tenders such lease, notes, and deed of trust into court. She prays for damages and for such other and further relief as to the court may seem just and proper.

The contract in question contains the following clause: "The party of the first part, Flora Kaiser, will well and truly proceed to furnish the improvements known as the hog house, which party of the first part hereby agrees to erect and finish as soon as possible; also cooler to be erected up to building occupied by Mrs. Buerke."

It is said that this contract was prepared by plaintiff's counsel, but the record does not show who prepared it. It was signed by the parties to it in plaintiff's office. When the contract as prepared by counsel was presented to the parties for their signatures, the clause, "also cooler to be erected up to building occupied by Mrs. Buerke," was at the suggestion of plaintiff interlined in the contract with pen and ink by plaintiff's bookkeeper, and the words, "and cooler," were also interlined in the same manner in several subsequent clauses of the contract as prepared by counsel, before it was finally executed by the parties.

The defendant Flora Kaiser, whom we will hereinafter refer to as the defendant, is the daughter of defendant Harry Kaiser. Defendant inherited the packing plant from her mother, and was still the owner of the plant at the time of the trial of this cause. Harry Kaiser has no interest in the plant or in the contract in suit.

For a number of years prior to October 27, 1931, plaintiff had been renting all or a part of the old packing plant. He rented from defendant's mother in her lifetime, and after her death from defendant. At times there were several tenants of the plant, each tenant renting a designated part of the plant; the aggregate rentals amounting to at least $300 per month, the several tenants jointly furnishing their own refrigeration. For some months prior to the execution of the contract in suit, plaintiff was renting the whole plant at $250 per month; the defendant furnishing the refrigeration. It appears from the record that the improvements made under the contract of October 27, 1931, were such that the value of the plant as thus improved was about double its value prior to the making of the improvements. The old packing plant had no refrigeration plant of its own, but an arrangement had been worked out with an adjoining packer named Sokolik to furnish refrigeration piped from his plant to defendant's old packing plant, for which Sokolik received $50 a month. However, Sokolik had informed defendant that he was no longer in a position to furnish her refrigeration and served her with notice that he would discontinue the arrangement. Of this defendant promptly advised plaintiff.

To make the new improvements provided for in the contract would cost as estimated by the architects and engineers $15,000. Defendant was a journalist and book editor for a St. Louis newspaper. She knew nothing about the packing business or the tenants of the plant she had inherited from her mother, and permitted her father to manage the plant and collect the rents for her. In this state of affairs, Mr. Kaiser went to the plaintiff and showed him the estimates of the architects for the new improvements, which showed the cost at $15,000. Plaintiff hold Mr. Kaiser he would advance $5,000 and take a five-year lease and a second deed of trust for his loan if defendant could raise the additional $10,000. Mr. Kaiser asked a rental of $500 a month. Plaintiff offered $400 per month, which was finally agreed upon. Later on and before the signing of the contract it developed that plaintiff was not able to raise the $5,000 that he had promised and was only able to raise $3,000.

The contract, which was executed by the parties and later recorded in the office of the recorder of deeds in the city...