Hough v. Jay-Dee Realty & Inv., Inc.

• Decision Date: 17 March 1966
• Docket Number: JAY-DEE,No. 8457,8457
• Citation: 401 S.W.2d 545
• Parties: Robert D. HOUGH and Jereda M. Hough, Plaintiffs-Respondents, v.REALTY AND INVESTMENT, INC., a corporation, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 545

401 S.W.2d 545

Robert D. HOUGH and Jereda M. Hough, Plaintiffs-Respondents, v. JAY-DEE REALTY AND INVESTMENT, INC., a corporation Defendant-Appellant.

No. 8457.

Springfield Court of Appeals, Missouri.

March 17, 1966.

William A. Wear, Wear, Wear & Coffman, Springfield, for defendant-appellant.

Arch M. Skelton, Donald E. Bonacker, Skelton & Bonacker, Springfield, for plaintiffs-respondents.

PER CURIAM:

This was an action for breach of the defendant's covenant to construct and deliver possession of a restaurant building to the plaintiffs. The plaintiffs have had judgment on a jury verdict for $3,100.00, and the defendant has appealed. This is a second opinion, the first having failed of adoption.

Stated most favorably to the result reached, the evidence was that in 1961 the defendant corporation was developing a small tract of land near Springfield, Missouri, for commercial use. As part of its general plan of development, the corporation had in view the construction of a restaurant building, a service station, a motel, and possibly other structures. Plaintiff Robert Hough, an experienced restaurant-keeper, was then running a 'tiny little restaurant, a one-man operation.' During the latter part of March or early in April 1961, Mr. Hough was introduced to Mr. John Dukewits, the defendant's president, and the two began negotiation of the lease or contract in issue.

The course of the parties' preliminary negotiation can only be determined by inference, since they reduced their agreement to writing, but we take it that Mr. Hough and Mr. Dukewits struck a bargain--made a deal--sometime before the contract was drawn. At any rate, believing it to be necessary, and anticipating the commencement of his new business, Mr. Hough closed the small restaurant on April 8, 1961, and began devoting his full time to preparations necessary for the establishment and operation of the new one. On May 8, 1961, having come to specific terms, Mr. Hough and his wife and the defendant executed a written 'Lease Agreement,' which is the basis of this action. Couched in terms of a lease to commence in the future, the memorandum is lengthy and involved, and it is unnecessary to set forth its terms in detail. It provides, among other things, that the defendant as lessor will construct a building for plaintiffs' occupancy and use as a restaurant, and that the building will be ready for use on June 1, 1961. The respondents, as lessees, are required to equip and furnish the restaurant, subject to defendant's approval of the equipment and furnishings, and to pay a variable or 'percentage' rental monthly, the amount ranging from a minimum of $235.00 to a maximum of $600.00, depending on plaintiffs' gross sales. The lease agreement is signed by both plaintiffs as lessees and by Mr. Dukewits for the defendant corporation as lessor. It was received in evidence without objection. Both parties treat it as a valid and binding contract on this appeal, and we shall regard it as such.

Basically, the plaintiffs' theory of recovery, as presented in this court, is that because the appellant failed to complete the promised construction and deliver possession of the premises they are entitled to reimbursement for all expense incurred in preparation for and in part performance of their obligations under the contract. As we understand them, they concede that their loss of profit because of the breach of contract cannot be ascertained, nor can their damages for breach of covenant to deliver possession be calculated according to the usual measure.

The plaintiffs had evidence that as soon as they had made their deal, or believed they had, Mr. Hough began preparation for performance of his obligation. The parties are not in agreement whether the defendant, or at least Mr. Dukewits, knew or anticipated that Mr. Hough would close his small restaurant to begin these preparations, but plaintiffs' evidence was that it was 'discussed,' and that Mr. Dukewits said he felt Mr. Hough should do so. Acting in reliance upon defendant's assurances, or upon what plaintiffs described as an antecedent oral contract, Mr. Hough began attempting to locate the furniture, fixtures, supplies and employees necessary to establish the new restaurant.

Neither party was very specific or precise as to the kind or type of establishment to be set up: there is no reference to other existing restaurants to guide us. However, from the testimony concerning the kind of equipment to be installed, its estimated cost, the number of prospective employees and the repeated vague references to a 'first class restaurant,' we take it that the parties had in view the establishment of a fashionable public eating house, at least by community standards. After April 8, Mr. Hough's activities consisted of contacting prospective employees, '* * * such as waitresses, dishwashers, cooks, and a hostees,' and he had to 'line up the kitchen equipment, not only the larger items such as stoves, refrigerators, but small items such as pots and pans and salt shakers, and things like that.' Mr. Hough also 'had to make arrangements for food products. I had to contact wholesale houses, places to purchase meats, groceries, and produce houses.' It was also necessary to make trips to St. Louis and Joplin, Missouri, to select fixtures and equipment, and to spend some time arranging the necessary financing for this equipment, which was finally obtained through a St. Louis supplier. Mr. Hough emphasized the necessity of selecting the equipment carefully, because Mr. Dukewits had said 'he just didn't want any sleezy, used old equipment,' and Hough's means were limited.

The defendant, and particularly its officers procrastinated. In spite of Mr. Hough's preparations, no progress was made toward the construction of the building. Although Mr. Hough 'went daily to the place to see what progress was being made,' 'it was a rare occasion when I could find anyone out there doing any work.' Though his approval of Mr. Hough's purchases was required by the contract, Mr. Dukewits was extremely difficult to locate and on one occasion went on an extended vacation. Mr. Hough's efforts to hasten construction were frustrated because of his difficulty in contacting Mr. Dukewits, and when Mr. Dukewits' permission or approval of something was required he was dilatory in giving it. On June 1, the proposed completion date, the building was 'totally inoperable.' Mr. Hough decided to continue performance, but advised Mr. Dukewits 'that I was becoming desperate, that I had no income * * * and that I desperately needed to get the place open.' Being assured that construction would be hastened, Hough waited, attempted to get some of the building done himself, and in fact did some of the decorating, for which he was paid. Still, the proposed restaurant was 'far from being completed' on July 31, 1961, sixty days after the agreed completion date, and the plaintiffs thereupon terminated the agreement in writing.

This, of course, states the evidence most favorably to the plaintiffs. The defendant's evidence was that the proposed restaurant was in fact substantially complete even on June 1, except for some minor details which could have been completed in ten days' time. The defendant's officers, including Mr. Dukewits, testified that the plaintiffs would have been put in possession very promptly had Mr. Hough given any convincing assurance that he had purchased the necessary equipment, and had he tendered the rent in advance, as the contract for lease required. As a matter of fact the defendant's evidence was the Mr. Hough had been financially unable to comply with his obligations under the lease agreement and begin operation of the restaurant. Some of plaintiffs' suppliers had asked the defendant to act as Hough's surety as a condition to extending him credit, but the defendant had refused because it had no interest in operating the restaurant and did not consider such an arrangement feasible. Considerable proof was adduced by both parties about the stage of completion the building had reached when Mr. Hough terminated the agreement on July 31. For present purposes, it is enough to say that the evidence was irreconcilably in conflict whether the building was, as plaintiffs maintained, so incomplete that it could not have been used as a restaurant, or whether, as Mr. Dukewits testified, the restaurant could easily have been put in operation by June 10, had Mr. Hough lived up to his agreement.

We take and consider the case solely upon the questions presented by the appellant: other issues were developed during the trial, but they have not been briefed and are therefore considered abandoned or waived and no longer in the case. Brackett v. Easton Boot and Shoe Co., Mo., 388 S.W.2d 842, 844(1); Pruellage v. De Seaton Corp., Mo., 380 S.W.2d 403, 405(3); White v. Kuhnert, Mo.App., 207 S.W.2d 839, 840(1). The appellant's first point is that the trial court should have directed a defendant's verdict at the close of all the evidence because the plaintiffs made no proof of actual compliance with their obligation to furnish the restaurant and tender the advance rent. The appellant concedes it was not prepared to comply with its obligations; their statement in argument is that 'the building was not 100 per cent complete as far as the Defendant's obligations were concerned.' They nevertheless assert that since the plaintiffs had made only the necessary arrangements to obtain equipment and fixtures, it cannot be said that the plaintiffs complied with the contract requirement, which was to supply '* * * all furnishings, fixtures and equipment used in said premises' at their 'sole cost and expense.'

The evidence bearing on this point was that after looking at a good deal of equipment at various places, the plaintiffs had been able to obtain restaurant fixtures on credit from a supplier in St. Louis, locally represented by a Mr. James Cole. Mr. Hough had...