Jenkins v. John Taylor Dry Goods Co., 38610.

• Citation: 179 S.W.2d 54
• Decision Date: 03 January 1944
• Docket Number: No. 38610.,38610.
• Parties: WILLIAM B. JENKINS, THERESA A. JENKINS and LOUISE JENKINS, Appellants, v. JOHN TAYLOR DRY GOODS COMPANY.
• Court: Missouri Supreme Court

179 S.W.2d 54 WILLIAM B. JENKINS, THERESA A. JENKINS and LOUISE JENKINS, Appellants,
v.
JOHN TAYLOR DRY GOODS COMPANY. No. 38610. Supreme Court of Missouri. Division Two, January 3, 1944. Rehearing Denied, April 3, 1944.

[179 S.W.2d 55]

Appeal from Jackson Circuit Court. — Hon. James E. Burke, Special Judge.

AFFIRMED.

Adams, Adams & Adams for appellants.

(1) The parties to this lease inserted a special written covenant that the tenant agrees to pay the landlord the rent throughout the whole term, and the tenant is liable for the rent for the whole term even though the lease is assigned. The special written covenant to pay rent is in addition to all of the other covenants of the lease. Taylor v. Shum, 1 B. & P. 21; Ouslow v. Corrie, 2 Madd. 330; Iggulden v. Pay, 9 Ves. 330; Tyler Estate v. Giesler, 74 Mo. App. 543; 1 Taylor on Landlord & Tenant, sec. 371; 1 Washburn on Real Property, sec. 671, p. 400; 32 American Jur., sec. 358, p. 313; Bennett on Law of Landlord and Tenant, p. 222; Haeffner v. A.P. Green Fire Brick Co., 76 S.W. (2d) 122; McMorris v. Keeley Real Estate Co., 147 Mo. App. 667, 127 S.W. 411; 36 C.J., sec. 1227, p. 371; Webb & Co. v. Ins. Co., 14 Mo. 3; Mitchell Furniture Co. v. Ins. Co., 17 Mo. App. 627; Sexton v. Hull, 45 Mo. App. 339; 1. Washburn on Real Property, p. 381, sec. 652; Bennett on Law of Landlord and Tenant, secs. 140, 141, 419; 2 Bouvier's Law Dictionary, Rawle's Revision, p. 758; Whetstone v. McCartney, 32 Mo. App. 430; Jones v. Barnes, 45 Mo. App. 590; Buchanan v. Exposition Co., 245 Mo. 337, 149 S.W. 26; Hendrix v. Dickson, 69 Mo. App. 197; Ward v. Krull, 49 Mo. App. 447; Geyer v. Denham, 231 S.W. 61; Sanford v. McGinnis, 238 S.W. 535; Wade et al. v. March, 176 N.E. 687; Jones on Landlord and Tenant, sec. 448; Latta v. Weiss, 131 Mo. 230; Jones on Landlord and Tenant, sec. 450. (2) John Taylor Dry Goods Company has never changed its position. It is liable for the rent on appellants' theory by reason of its special covenant to pay the rent, and on respondent's theory because it has never made an assignment or performed the obligations of the lease. 36 C.J., sec. 820, p. 173; Washington Natural Gas Co. v. Johnson, 16 Atl. 799; 2 Thompson on Real Property, sec. 1265, p. 359; Gustin & Co. v. Nebraska Bldg. & Inv. Co., 193 N.W. 269; Bennett, Law of Landlord and Tenant, sec. 190, p. 286; Monarch v. Owensboro City R. Co., 119 Ky. 939, 85 S.W. 193; Wiswall v. McGown, 2 Barb. 270; D'Anna v. Rupp, 32 S.W. (2d) 136; 13 C.J., sec. 694, p. 628. (3) The court may consider the acts of the parties under the lease as showing their interpretation thereof. National Refining Co. v. Cox, 227 Mo. App. 778, 57 S.W. (2d) 778; Babcock v. Rieger, 76 S.W. (2d) 731. (4) At the time of the pretended assignment to Broyles the covenant to pay taxes was in default and still is in default. Waterman v. Harkness, 2 Mo. App. 494; In re Sherwoods, Inc., 210 Fed. 754; Strohmeyer v. Zeppenfeld, 28 Mo. App. 268, 97 A.L.R. 937N, L.R.A. 1915A, 345N; DeGiverville v. Legg, 48 Mo. App. 573; Elliot v. Gantt, 64 Mo. App. 248.

Grant I. Rosenzweig and Harding, Murphy & Tucker for respondent.

(1) The assignment released the lessee from the obligation to pay further rent. Commerce Trust Co., Trustee, v. Kelley, No. 471620 — Jackson County Circuit Court; Alexander v. Theatre, 253 Ky. 674, 70 S.W. (2d) 380; Finney v. City, 39 Mo. 178; Knight v. Orchard, 92 Mo. App. 466. (2) Insolvency, etc., of Broyles does not invalidate the assignment made to him in 1942. Tyler v. Giesler, 74 Mo. App. 543; McMorris v. Keeley, 147 Mo. App. 667; Hartman v. Thompson, 65 Atl. 117; Lowry v. Atlantic, 272 Pa. St. 19; McLean v. Caldwell, 107 Tenn. 138; Tate v. McCormick, 23 Hun, 218; Childs v. Clark, 3 Barb. Ch. 52; Tibbals v. Iffland, 10 Wash. 451; Johnson v. Sherman, 15 Cal. 287. (3) The Taylors in assigning to Broyles in 1942 were not outside of their legal rights — no fraud could by any possibility be predicated upon their doing what they had a legal right to do. Loeb v. Dowling, 162 S.W. (2d) 875; Radley v. Meeks, 178 Mo. App. 238; Mesker v. Harper, 221 S.W. 407; Peterson v. K.C. Life, 98 S.W. (2d) 770. (4) While there were aspersions against Broyles, there was neither pleading nor evidence sufficient to constitute fraud. Shiffman v. Schmidt, 154 Mo. 204; Bowers v. Smith, 111 Mo. 45; Broth v. Clark, 253 Mo. 119; Troll v. Spencer, 238 Mo. 101; Lindsay v. Shaner, 236 S.W. 319; Troll v. City, 257 Mo. 626. (5) The Jenkins lease, containing general clause requiring payment throughout the term, was qualified by another equally important clause that the Taylor Co. should, upon certain events, be released. In such contracts — instead of the general clause controlling — the specific qualifying clause controls, even if there were ambiguity. The qualifying clause does not constitute ambiguity. Carpenter v. Hines, 239 S.W. 593; Broadway v. N.Y. Life, 172 S.W. (2d) 851; Blank v. Lennox, Nos. 37647-37649, 351 Mo. 932, 174 S.W. (2d) 862. See, also, appellants' own citations: Webb v. Ins. Co., 14 Mo. 3; Mitchell v. Ins. Co., 17 Mo. App. 627; Sexton v. Hull, 45 Mo. App. 339. (6) Jenkins claims that delay in building having continued beyond 1934, the same was a 1935 default, forever afterward totally incurable by anything but a formal written document, and especially was not cured by building in April, 1942, or by rents knowingly received covering time to the end of April, 1942, with demands in May, 1942, and subsequent months for rents maturing after April, 1942. The law is exactly contrary. Board of Trade v. Shannon, 21 S.W. (2d) 913; Garnhard v. Finney, 40 Mo. 449; Stoddard v. Sheridan, 189 S.W. 634; Peudill v. Union, 64 Mich. 172; Camp v. Scott, 47 Conn. 366; Gates v. Streckel, 176 Mo. App. 168; Frank v. Dodd, 130 So. (2d) 210; Wyatt v. White, 192 Mo. App. 551; Eurengy v. Equitable, 107 S.W. (2d) 68; Bobb v. Frank, 221 S.W. 372; Tetley v. McMurry, 201 Mo. 382; Carbonetto v. Elms, 261 S.W. 748; Powers v. Odd Fellows, 133 Mo. App. 229; Berry v. Cogg, 20 S.W. (2d) 296; Palmer v. Welch, 171 Mo. App. 580; Missouri v. Sims, 121 Mo. App. 156; Davis v. Yorkshire, 288 S.W. 80; Schneider v. Schneider, 224 S.W. 1; Davis v. Lee, 239 S.W. 823; Gary v. Kelley, 278 Mo. 450; Bartelson v. United States, 60 Fed. (2d) 745; Silva v. Campbell, 84 Colo. 420; Gluck v. Elkan, 36 Minn. 80; Patterson v. Butterfield, 221 N.W. 293; Smith v. Edgewood, 36 Atl. 128 (also 35 Atl. 884); Kenney v. Seu, 101 Minn. 253; Sultaman v. Branham, 128 Mo. App. 696; Carondolet v. Wolfert, 39 Mo. 303; Lewis v. St. Louis, 69 Mo. 595; Fulkerson v. Lynn, 64 Mo. App. 649; Weigle v. Rogers, 213 S.W. 501; Colton v. Garhan, 72 Iowa, 324. (7) The lease must be construed against the lessor and in favor of the lessee; and in any event avoiding exaction by lessor of any forfeiture. Grooms v. Morrison, 249 Mo. 544; Linville v. Greer, 165 Mo. 380; Patterson v. Butterfield, 221 N.W. 293; Wright v. Barron, 232 S.W. 1088; Henry v. Excelsior,, 277 Mo. 508; Gray v. Conrad, 101 Mo. 331; Baker v. Chicago, 57 Mo. 265; Hobbs v. Yeager, 263 S.W. 225. (8) A lessor cannot invent a different kind of forfeiture than is specified in the lease — he cannot, at his own wish, select merely one particular clause of the lease and forfeit only that single item, while he proclaims the lease as a whole in force. Mott v. Morris, 249 Mo. 147; Edwards v. Collins, 198 Mo. App. 569; Henry v. Excelsior, 277 Mo. 508; Guthrie v. Hartman, 226 S.W. 593. (9) Any denial of or interference by Jenkins with the lessee's right and duty to build in April, 1942, would be an ouster of tenant by landlord — which in itself would terminate the lease. Towle v. Pullen, 238 Fed. 107, not overlooking rehearing on subsequent page. Delmar v. Blumenfield, 118 Mo. App. 308; Dolph v. Barry, 165 Mo. App. 659; Ray v. Holtzman, 119 S.W. (2d) 981; Trauerman v. Lippincott, 39 Mo. App, 478; Blond v. U.S. Fid. & Guar. Co., 80 S.W. (2d) 675. (10) The cardinal and invariable rules of equity forbid forfeiture wherever it can be avoided. Buchanan v. Exposition, 245 Mo. 337; Strohmeyer v. Zeppenfeld, 28 Mo. App. 268; Moberly v. Trenton, 181 Mo. 637.

BARRETT, C.

This cause originated when the inheritors of Andrew Paul Jenkins instituted an action to recover one month's rent, $833.33, from his original lessee, John Taylor Dry Goods Company, under a ninety-nine year lease. To the suit on the lease for the April 1942 rent the John Taylor Dry Goods Company answered that all obligations due by it under the lease had been fully discharged and paid and, after pleading the terms of the lease, set forth the circumstances upon which it relied as demonstrating that it had completely fulfilled its obligations to Andrew Paul Jenkins and his heirs under the lease. In addition John Taylor Dry Goods Company, by counterclaim and cross petition, set up that there were 790 more months (66 years) in the term of the lease sued upon and that despite the fact of its having fulfilled its obligations under the lease the inheritors of the leasehold were threatening suit for each month's rent as it came due and an injunction restraining the numerous threatened suits was asked. John Taylor Dry Goods Company also asked for a declaratory judgment as to the future rights, status and obligations of the parties under the lease. The cause was tried as an equity suit. The trial court found against the owners of the leasehold on their claim for rent and enjoined them from instituting further suits for rent. In addition the court declared that John Taylor Dry Goods Company had met and complied with the terms and conditions of the lease entitling it to be released of further duties or obligations to pay rent.

In 1909 John Taylor Dry Goods Company was apprehensive of encountering some difficulty in renewing its lease on the property on Main Street at Tenth and Eleventh Streets. Also Mr. John Taylor was of the opinion that the future downtown business district of Kansas City lay in the direction of Thirteenth...