Julian v. Kansas City Granite & Monument Co.

• Decision Date: 12 June 1916
• Docket Number: No. 12023.,12023.
• Citation: 187 S.W. 584
• Parties: JULIAN v. KANSAS CITY GRANITE & MONUMENT CO.
• Court: Missouri Court of Appeals

187 S.W. 584

JULIAN v. KANSAS CITY GRANITE & MONUMENT CO.

No. 12023.

Kansas City Court of Appeals. Missouri.

June 12, 1916.

Rehearing Denied July 3, 1916.

Appeal from Circuit Court, Jackson County; Joseph A. Guthrie, Judge.

"Not to be officially published."

Action by H. S. Julian against the Kansas City Granite & Monument Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with proviso for affirmance on filing remittitur.

S. M. Carmean and C. L. Dort, both of Kansas City, for appellant. Hughes & Whitsett, of Kansas City, for respondent.

TRIMBLE, J.

The respondent, Julian, under a written lease, rented to the Guidici Monument Company office space in room No. 333 Scarritt building, in Kansas City. The lessee agreed to pay $25 per month during the term, and also one-third of the light bill for each month. The Guidici Monument Company and the Kansas City Granite & Monument Company afterwards consolidated their business, and it was conducted by the Kansas City Granite & Monument Company; the latter agreeing, in the written instrument of consolidation, that it "shall assume and hereby agrees to pay the outstanding obligations and debts of the Guidici Company."

This suit was instituted by respondent against the Kansas City Granite & Monument Company, by virtue of said assumption and agreement, for eight months' rent at $25 per month, and for one-third of the light bill for said months, they being the months from October, 1913, to May, 1914, both inclusive, and within the term of the written lease. The defendant filed an answer which consisted of a general denial, and then set up several defenses going to the validity of the lease and the right to claim rent thereunder. Plaintiff filed a reply, setting up that two final judgments in a justice court had been obtained against the Guidici Company for rent of these premises under the same lease, and that all the issues set up in defendant's answer were therein adjudicated and settled adversely to the contention raised by defendant.

The written lease was introduced, and so also was the written agreement of the defendant to pay the obligations and debts of the lessee. This written lease provided that the rent should be $25 per month, but did not fix the amount to be paid for light, merely specifying that the lessee should pay one-third of the light bill for each month. Plaintiff introduced evidence that the Guidici Company had taken possession under said lease; had voluntarily paid the rent for several months; had failed to pay for other months, and had been sued and final judgment obtained against it therefor; that the rent for the months now sued for was unpaid, and that one-third of the electric light bill was "about $6," and was also due. Defendant in its testimony admitted the execution of the two written instruments, admitted that the Guidici Company had taken possession under the lease, and admitted that the two judgments had been rendered against the Guidici Company.

It appears from defendant's evidence that the Guidici Monument Company took possession under said lease by putting its secretary with his desk in the room; that, about two months after thus taking possession, the company demanded and received of the secretary his resignation. The secretary, however, did not give up the desk space he occupied in the room, but continued therein. The Guidici Monument Company, after paying rent for a month or two, refused to pay further unless plaintiff, its lessor, would put it in possession of the particular space occupied by the former secretary. Said company seemed to think it was plaintiff's duty to put the former secretary out. But, if the Guidici Monument Company's secretary severed his connection therewith, and thereafter refused to get out of the place rented by the company, it was not plaintiff's duty to oust him, but the duty of the company. And, after having leased desk space in said room 333 for a definite term, and having taken possession thereunder, it was the company's duty to pay rent during that term whether it continued to occupy under the lease or not, unless the ceasing of such occupation was caused by eviction on the part of the lessor.

When the Guidici Monument Company refused to pay further two judgments were obtained in justice court for various months' rent, as the rent for...