Jackson v. Merz

• Decision Date: 20 September 1949
• Docket Number: No. 27773.,27773.
• Parties: JACKSON et al. v. MERZ.
• Court: Missouri Court of Appeals

223 S.W.2d 136

JACKSON et al. v. MERZ.

No. 27773.

St. Louis Court of Appeals. Missouri.

September 20, 1949.

"Not to be reported in State Reports."

Allen H. Whittington, St. Louis, for appellant.

Detjen & Detjen, St. Louis, James L. Nouss, St. Louis, for respondents.

HUGHES, Judge.

This is an equitable action whereby plaintiffs seek to vacate a lease contract for fraud in its procurement, and also seek to enjoin the defendant from asserting or claiming as a tenant the possession of plaintiffs' property. From an adverse decree the defendant appeals.

Although three days' time was consumed in the trial of the cause, only the record proper is brought here on appeal, the defendant-appellant claiming that the petition fails to state a cause of action against defendant and that the decree as entered is not in conformity with the pleadings. Under such circumstances we will presume that the trial judge found the facts correctly and in accordance with the evidence. State v. Bank of Southeast Missouri, Mo.Sup., 107 S.W.2d 1; State v. Winn, Mo.App., 191 S.W.2d 367; Town of Carrollton ex rel. Barrie v. Thomas, Mo. App., 24 S.W.2d 218; Hubbard v. Slavens, 218 Mo. 598, 117 S.W. 1104.

Plaintiffs' petition alleges that they were the owners of a lot of land in the City of Kirkwood, Missouri, improved with a residence in which they live and a commercial structure, known as 1704 West Big Bend Road, being a one-story garage type of building in which the plaintiff James B. Jackson carried on an automobile painting and body shop business; that prior to March 19, 1946, defendant approached them with the proposal that he rent from them as a month-to-month tenant, certain gasoline pumps at the front of the lot on which such garage building is located, and the eastern portion of the building, for the storage of oils and merchandise to be used by the defendant in the operation of the filling station business, all for a rental of $25 per month, and that plaintiffs agreed thereto; that on or about March 19, 1946, defendant submitted to the plaintiffs a written memorandum which he represented to them conformed to the foregoing oral agreement, and that without reading it and acting upon and relying upon the defendant's representations and assertions that the written instrument conformed to the oral understanding, they signed the said memorandum, which in fact did not conform to the oral agreement, and was the result of fraud, deception and trickery on the part of defendant, and that it is so vague, indefinite and uncertain as to be wholly incomprehensible and of no legal force or effect.

The petition then proceeds at length to describe differences and controversies between plaintiffs and defendant.

The petition then states that on October 22, 1946, plaintiffs served upon defendant a written notice to remove from the premises and surrender possession thereon on December 3, 1946, which was a month from defendant's next rent date which fell on November 3, 1946, and that on November 22, 1946, defendant moved from the premises and abandoned them, since which date he has paid no rent nor made any tender of rent.

The petition then alleges that on or about March 17, 1947, the defendant served upon plaintiff James B. Jackson a written notice that he had elected to exercise the option granted to him under the aforesaid written lease to renew the same for a second year, reserving the right to renew it for a third year, and that defendant is claiming and asserting that he has a right of possession to a portion of plaintiffs' premises and that he will continue to make such claims, and to annoy, aggravate and disturb the peace of the plaintiffs and interfere with their occupancy of the premises unless enjoined by the court.

A copy of the signed memorandum or lease contract is attached to the petition, the parts thereof material to this appeal being as follows: "I, the undersigned agree to lease unto Andrew L. Merz, 616 Ballas Road, Kirkwood, Missouri, the site fronting Big Bend Road of Jackson's Paint and Body Works, for one year, with the option of a second and third year, at the same rate of rental price of first year, which is $25.00 per month. * * * This lease and option may be terminated only by Andrew L. Merz at any time he sees fit. Hours of business are his own and are not limited."

The defendant's answer, so far as pertinent to the questions involved in this appeal, admitted the allegations of the first four paragraphs of the petition, and denied the remaining paragraphs. It is significant to note here that the fourth paragraph of the petition, which is specifically admitted by the defendant, states that the oral understanding between the parties was for a month-to-month rental.

We think the petition is...