Kratz v. Rally

• Decision Date: 08 March 1932
• Docket Number: No. 21896.,21896.
• Citation: 47 S.W.2d 221
• Parties: KRATZ et al. v. RALLY.
• Court: Missouri Court of Appeals

47 S.W.2d 221

KRATZ et al. v. RALLY.

No. 21896.

St. Louis Court of Appeals. Missouri.

March 8, 1932.

Rehearing Denied March 22, 1932.

Appeal from St. Louis Circuit Court; Claude O. Pearcy, Judge.

"Not to be officially published."

Action by Charles Kratz and another against A. G. Rally. From a judgment for plaintiffs, defendant appeals.

Affirmed.

John Dale and B. E. Hamilton, both of St. Louis, for appellant.

Edgar V. Maher and Rozier G. Meigs, both of St. Louis, for respondents.

HAID, P. J.

This is an appeal by A. G. Rally from a judgment in favor of plaintiffs against the defendants who were guarantors upon a lease upon certain property owned by the plaintiffs. The petition alleged:

"That the Kratz Real Estate and Investment Company is, and was, at all the times hereinafter mentioned, a corporation duly organized and existing under and by virtue of the laws of the State of Missouri; and that the said Kratz Real Estate and Investment Company, jointly with the plaintiff Charles Kratz, is the owner of the following-described real estate, situated in the City of St. Louis and State of Missouri, to wit:

"The first floor and basement of a two-story brick building, known and numbered as No. 9 North Sixth street.

"Plaintiffs further state that on or about the 24th day of January, 1925, these plaintiffs entered into a contract, in writing (said contract being filed herewith and marked `Exhibit A,' and made a part of this petition), with one Edward Wassmann and Carl Spalinger, whereby the said Wassmann and Carl Spalinger leased the above-described premises for a period of five (5) years, and agreed to pay, as rental therefor, the sum of thirty-three hundred dollars ($3300.00) per year, said rent being payable in advance in equal monthly installments of two hundred and seventy-five dollars ($275.00) each.

"Plaintiffs further state that the defendants A. G. Rally, August Griefzu, William Saussele and John Stark, for a good and valuable consideration, bound and obligated themselves as guarantors, guaranteeing to said plaintiffs the performance of all the agreements and covenants in said lease or contract contained to be kept and performed by the said Edward Wassmann and Carl Spalinger, and that said guaranty is made a part of this petition and marked `Exhibit B.'

"Plaintiffs further state that by the terms of said contract there is now due them the sum of thirteen hundred and seventy-five dollars ($1375.00) for five months rent due for the months of November and December of 1926, and January, February and March of 1927; and that although demand of payment was made of the said Edward Wassmann and Carl Spalinger and of the above-named defendants, said Edward Wassmann and Carl Spalinger and these defendants have failed, refused and neglected to pay said sum of thirteen hundred and seventy-five dollars ($1375.00), or any part thereof, and that the same is still due."

The petition sets out other items which plaintiffs claimed as a liability under the guaranty which are not involved on the appeal.

The answer of A. G. Rally, so far as the same is essential to a consideration of the matters involved on the appeal, is as follows:

"That he denies each and every allegation as set out and contained in plaintiffs' petition.

"For further answer, this defendant states that about the 24th day of January, 1925, plaintiff Charles Kratz and/or the Kratz Real Estate and Investment Company, a corporation, entered into a lease with Edward Wassmann and Carl Spalinger, as tenants, for the first floor and basement of the building at No. 9 North Sixth street, St. Louis, Missouri; that the term of said lease was for five years at a rental of two hundred seventy-five ($275.00) dollars per month, or thirty-three hundred ($3,300.00) dollars per year, or a total of sixteen thousand five hundred ($16,500.00) dollars in five years; said lease also contains an option for renewal for a further term of five years at a monthly rental of three hundred twenty-five ($325.00) dollars, aggregating thirty-nine hundred ($3900.00) dollars per year, and making a total aggregate of nineteen thousand five hundred ($19,500.00) dollars in five years; the possible aggregate of said lease being thirty-six thousand ($36,000.00) dollars in ten years.

"That this defendant did not sign said lease as a lessee, but did, on about the 25th day of January, 1925, after being promised by the lessors, each and several, that they (lessors), or either of them, would promptly advise this defendant if any default in payment of rent or otherwise was made by the said Edward Wassmann and Carl Spalinger in the compliance by them with the covenants and the terms of the said lease, guarantee the performance by the said Edward Wassmann and Carl Spalinger of the covenants, terms and the conditions of the said lease.

"That plaintiffs made with Edward Wassmann and Carl Spalinger oral or written arrangements, which modified the terms and covenants of the lease by plaintiffs entered into with said Edward Wassmann and Carl Spalinger; that said material changes and modifications extended the time and terms for payment of the rent to be paid by the said Edward Wassmann and Carl Spalinger to plaintiffs herein; that said changes and modifications was made without the knowledge or consent of this defendant; that when plaintiffs changed and modified the covenants and terms of the lease, by extending the time for payment of rent by said lessees, without the consent of this defendant, plaintiffs then intended by said arrangements to work a fraud on this defendant; that plaintiffs knew this defendant would be injured by their said acts and knew that this defendant would not discover the said changes and/or modification in time to avoid injury, and that as a result of plaintiffs' acts in changing and modifying the covenants, terms and agreements of said lease plaintiffs caused injury in the premises to this defendant, thereby releasing this defendant from liability thereon."

Plaintiff filed a general denial to such answer.

At the trial default was entered against the defendants August Griefzu and John Stark and judgment entered against all defendants, from which A. G. Rally alone appeals.

At the trial the plaintiffs proved by Oliver Kratz, the secretary and treasurer of the Kratz Realty Company, that his company collected the rents for the plaintiffs on the premises leased, from February 5, 1925, until November 1, 1926, but did not collect any rents for November and December, 1926, and January, February, and March, 1927, although demand was made of the lessees for the payment of such rent; that the lessees moved from said premises on February 15, 1927; that they called on lessees nearly every week making demand, and they always had some sort of an excuse for not paying it.

Charles Kratz, Jr., testified that he was secretary and treasurer of the defendant company and a partner of the Kratz Realty Company; that he made several demands on the lessees for the rent in November and December, 1926, and January and February, 1927. There is some testimony regarding the sending of notices to some of the guarantors, but those notices do not appear in the record.

This was all of the evidence by the plaintiffs, so far as the record discloses, and the defendants offered no evidence. At the close of the plaintiffs' case the defendant Rally requested an instruction in the nature of a demurrer to the evidence, which request was overruled and exception saved to the ruling of the court.

The defendants' first contention is that because the lease and guaranty were not offered in evidence there was nothing to substantiate the allegations of the petition and that, therefore, the court erred in overruling the demurrer to the evidence.

In support of that contention the defendants cite three authorities, as follows:

Granby Min. & Smelt. Co. v. Davis, 156 Mo. 424, 57 S. W. 126, 128, in which an answer contained a general denial followed by the words "except that he admits that he is, and long has been, in possession." The brief quotes a portion of this decision, but it fails to note the clause which followed that quotation, which is, "But, more than that, by the stipulation entered into, even if plaintiff is technically correct as to the meaning of the answer, the issue was by mutual consent modified and limited to a determination of the true line between the respective lands of plaintiff and defendant," and later on the court says, "It was entirely competent for the parties to narrow the issue between them by stipulation, and this we hold they did," and the court accordingly held that in the light of the conduct and stipulation of the parties it was the obvious intention of the defendant to plead that he was in possession of his own 40 acres and the land sued...