Kemp v. San Antonio Catering Co.
| Decision Date | 10 April 1906 |
| Parties | KEMP, Respondent, v. SAN ANTONIO CATERING COMPANY and PARKVIEW REALTY AND IMPROVEMENT COMPANY, Appellants |
| Court | Missouri Court of Appeals |
[Copyrighted Material Omitted]
Appeal from St. Louis City Circuit Court.--Hon. Daniel D. Fisher Judge.
REVERSED AND REMANDED (with directions).
STATEMENT.--This is an equitable proceeding in which plaintiff seeks an accounting against the San Antonio Catering Company and other defendants, the appointment of a receiver to conduct the business of said company, and an injunction against the transfer of the business by said company and the other defendants to any one else, and against the removal of its books of account used in connection with the business.
The facts of the case are rather complicated and require to be stated with some detail. The Parkview Realty & Improvement Company owned a lot on the northwest corner of DeBaliviere and Waterman avenues in the city of St. Louis, on which it granted a lease to Gilbert P. Drew for a term to begin February 16, 1904, and to continue until thirty days after the close of the Louisiana Purchase Exposition. Drew was to pay $ 3,000 as rent for the entire term, of which $ 500 was to be paid on the execution of the lease and the remainder in installments of $ 500 each on the first day of each month beginning with May first, until the whole sum was paid. Plaintiff Kemp was a baker, doing business in the city of St Louis, and desirous of establishing a bakery near the World's Fair. To get a place for a bakery he paid Drew $ 2,500 for the north-half of the ground floor of the building put on the premises aforesaid. Afterwards Kemp made a contract with Drew, by which the former agreed to advance to the later $ 1,650, with which Drew undertook to erect a second story on a building which he had already put on the ground leased from the Parkview Company. Said second story was to be conducted as a hotel and rooming house for the profit of Drew and Kemp. It was to contain twenty-six rooms and to be furnished by Drew. This contract was made with the partnership firm of Drew & Quinlan, but for some reason not apparent from the record, Quinlan cuts no figure in the present case. The contract was dated April 1, 1904. Kemp paid the $ 1,650 to Drew, but the latter did nothing toward furnishing the hotel and afterwards told Kemp he was unable to carry out his contract. On June 1, 1904, Drew, by a written instrument, assigned to Kemp all his interest in this firm of Drew & Quinlan and in other property thus designated:
Kemp testified that the first arrangement between him and Drew was that the former was to be repaid the $ 1,650 advanced by him with which to construct the second story of the building, and after that sum was repaid, the profits derived from the use of the second story as a hotel and rooming-house should be equally divided between them. When Drew failed to carry out his contract he left St. Louis and his whereabouts are unknown. At the time of Drew's departure, he was in default to the Parkview Company in the sum of $ 1,000 for installments of rent under the lease. In May, 1904, Drew, Edward Quinlan (a member of the firm of Drew & Quinlan) the plaintiff Kemp and one H. J. Gobrecht, who had some interest in the connection with the other persons named, executed what purports to be a lease of said second story to defendants J. H. Earp and E. L. Webb, for a term to end December 1, 1904, should the Louisiana Purchase Exposition then close, or until the close of the Exposition. Parts of said lease which need to be noticed are as follows:
"For the use and rent thereof, the said parties of the second part hereby promise to completely furnish by May 20th, all of the rooms of the second story hereby leased, and to operate and conduct the premises herein leased as a hotel, for the period that the premises are leased, and the parties of the second part further promise to pay to the said parties of the first part or their order, each Monday, fifty per cent of the gross receipts received by them from the conduct of the said premises, as a hotel during the said period; that they will not sub-let or allow any other tenant to come in with or under them, without the written consent of the parties of the first part, their heirs or assigns, excepting hotel guests; that but one room in the premises herein mentioned shall be occupied by a housekeeper or servants, and that no relatives of the parties of the second part, or friends, shall be allowed to occupy the premises at a reduced rate, and that all of the rates made by the parties of the second part shall meet with the approval of the parties of the first part; that they will take good care of the building and premises, and keep them free from filth, from danger of fire, or any nuisance, and from all uses forbidden in any fire insurance policy issued thereon, and protect, defend and indemnify the said parties of the first part from all damages and charges for such; that the premises shall be kept clean, fairly treated and left so; that in default of the payment of any share in the installment of profits as aforesaid, they will, if requested by the parties of the first part, quit and render to them the peaceable possession thereof, and finally, at the end of the term they will surrender to the said parties of the first part, their heirs or assigns, the peaceable possession of the said premises, with all keys, bolts. latches and repairs, if any, in as good condition as they received the same, the usual wear and use and providential destruction, or destruction by fire excepted."
Afterwards the San Antonio Catering Company was incorporated and Earp and Webb, who were among the incorporators, assigned the above lease to that company. The defendants, Ada Lee and Mary Webb, had some interest in the Catering Company and for that reason were made defendants to this action. The lessors consented in writing to the assignment. After Drew had defaulted in the payments on his rent to the Parkview Company and the performance of his contract with Kemp, to furnish the second-story rooms, operate the same as a hotel and divide the profits with Kemp, and had assigned his rights to the latter, the Parkview Company executed a lease to Kemp on the lot originally leased to Drew. This instrument was dated June 7, 1904. The term was to begin on that date and continue until thirty days after the close of the Louisiana Purchase Exposition, and Kemp was to pay $ 2,500 for the term in installments, of which $ 500 was to be paid on the date of the lease and $ 500 more the first day of each month, beginning with July, until the whole sum was paid. In other respects the lease was like the one made to Drew with the exception of this clause:
"Subject, nevertheless, to the lien of existing recorded encumbrances, and subject further to any claims which Gilbert P. Drew or any claiming by, through or under him make, or may make under or by virtue of that certain lease heretofore made by the lessor to said Drew, under date of February 16, 1904, or which said Drew or any one claiming by, through or under him makes or may make to or with respect to the building on the demised premises or any part, appurtenances or fixtures thereof; subject also to any claims or liens which have been or may be made or advanced against said building, or any part thereof by any person, persons, firms or corporations on account of having done or furnished any labor, work or material on or with respect to said building."
For some reason on June 7th Kemp, as one party, and Earp & Webb as the other, entered into another contract by which Kemp rented to Earp & Webb, for the purpose of a hotel, the second story of the building aforesaid. The provisions of this contract were identical with those quoted from the lease made by Kemp, Drew, Quinlan and Gobrecht to Earp & Webb in May 1904. In this contract Earp & Webb virtually agreed to do what Drew had agreed to do, namely: operate the rooming house and pay Kemp fifty per cent of the gross receipts. It seems that Earp & Webb and the San Antonio Catering Company carried out their agreement with Kemp only until June or July, when they ceased to make payments to him of half the gross receipts. This change of conduct on their part was due to certain litigation which had arisen between Drew and his creditors. One August Winkel instituted an action in the circuit court of the city of St. Louis against Drew and Quinlan for about $ 3,000 for the construction of the building on the lot. A writ of attachment was issued in that action and levied on all the right of Drew & Quinlan in the leasehold granted by the Parkview Company to Drew. Afterwards George W. Lubke was appointed receiver in said cause to take charge of the leasehold property and was authorized to institute suits against persons in possession of the premises. Lubke thereafter notified Earp & Webb and the Catering Company that he claimed all the rights of Drew & Quinlan in the premises, right to possession of the premises and damages against said defendants for unlawfully withholding possession of the second story. Afterwards on June 14th,...
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