Kreitz v. Egelhoff

• Decision Date: 23 December 1910
• Citation: 231 Mo. 694,132 S.W. 1124
• Parties: KREITZ et al. v. EGELHOFF et al.
• Court: Missouri Supreme Court

132 S.W. 1124

231 Mo. 694

KREITZ et al. v. EGELHOFF et al.

Supreme Court of Missouri, Division No. 1.

December 23, 1910.

1. LANDLORD AND TENANT (§ 129)—BREACH OF CONTRACT—TENDER OF PERFORMANCE— QUESTION FOR JURY.

In an action by a tenant for the landlord's failure to deliver possession of the leased premises and perform the terms of the lease, evidence held to require submission to the jury of the issue of the good faith of the tenant in tendering performance.

2. CONTRACTS (§§ 303, 278)—ACTIONS—PERFORMANCE.

One suing at law for the nonperformance of a contract must prove his own performance, but where full performance is wrongfully prevented by the adverse party, he may not complain of nonperformance.

3. CONTRACTS (§ 169) — CONSTRUCTION — INTENTION OF PARTIES.

The court in construing a contract must consider the subject-matter and the object to be attained.

4. LANDLORD AND TENANT (§ 110)—LEASE— CONSTRUCTION.

A tenant in possession under a lease for a fixed term procured before the expiration of

the term a new lease to continue at the close of the term. The new lease required the tenant to erect a building on the premises during the original term. Thereafter and during the original term the tenant became a voluntary bankrupt and abandoned the possession, and a third person was placed in possession as tenant. Held, that the original tenant could not re-enter during the original term except with the consent of the landlord, and that the landlord's refusal of such permission, whereby the tenant could not perform the acts required by the new lease in order to obtain the benefits thereof, was not a wrongful prevention of performance of the contract to build as a condition precedent to the benefit on the new lease.

5. BANKRUPTCY (§ 4) — COURTS — JURISDICTION.

The construction of the bankruptcy act is for the federal courts, and the appellate courts of a state will not construe the law except when necessary to determine a bankruptcy question in a case within its own jurisdiction.

Appeal from Circuit Court, Jackson County; E. E. Porterfield, Judge.

Action by Josephine Kreitz and another against John M. Egelhoff and another. From a judgment for defendants, plaintiffs appeal. Affirmed.

Reed, Atwood, Yates, Mastin & Harvey, for appellants. McCune, Harding, Brown & Murphy, for respondents.

LAMM, P. J.

Plaintiffs sue for $15,000 damages for defendants' failure to comply with a covenant to deliver possession of certain premises and to carry out other terms of a written lease.

The petition alleges and the answer admits the execution of the lease on the 3d day of September, 1904. This lease demised to plaintiffs a certain brick building and basement, known as 1029 Main street, Kansas City, Mo., for a term of five years, commencing on the 1st day of February, 1906, at a rental of $700 per month. It contained provisions as follows: For a renewal term of five years, "provided plaintiffs would agree to pay as much as any other party making a bona fide offer to lease such premises"; that the premises were leased "in the present condition thereof"; for repairs, keeping the premises free from filth, nuisances, danger of fire, and against carrying on any unlawful business; for forfeiture on violating any covenant or agreement, including default of payment of rent; for surrender of peaceable possession at the end of the term; and for regulating liability for rent in case of fire, etc. As a further consideration, the lessees covenanted to erect at their own proper expense, doing all the necessary excavating for a cellar at the rear of the building now on the premises, "a two story or higher brick building about 24 feet by 55 feet with 18-inch foundation walls and 13-inch brick walls and gravel roof," within one year from the date of the lease—that is within one year of the 3d day of September, 1904; these betterments and improvements to be and remain the absolute property of lessors. The petition alleges and the proof shows the lease contained a provision that lessees would not convey or assign it without the written consent of lessors. Further, that neither it nor the premises should pass "by operation of law nor by any species of conveyances by the parties of the second part or their heirs." The answer denies that plaintiffs owned the lease or had any right, title, or interest therein. It avers that all such right, title, and interest prior to the 1st day of February, 1906, passed out of plaintiffs and was vested in defendants. It further alleges (and the proof shows) that about two months after the lease was executed, to wit, on the 7th day of November, 1904, plaintiffs, as individuals and as copartners, filed their voluntary petition in bankruptcy, and on said date by virtue of such proceeding in the United States District Court for the Western District of Missouri were declared bankrupts as individuals and as copartners. The answer also alleged (and the proof shows) that plaintiffs listed their assets under oath as individuals and copartners in said bankrupt proceeding. It further alleges (and it is contended on one side that the proof shows, on the other, that it does not show) that the right, title, and interest of plaintiffs in said leasehold as individuals and as copartners was listed as an asset, was sold by virtue of the bankrupt proceeding to defendants, who became the owners of the lease; this sale being made by the trustee in bankruptcy in due course of law and duly approved by proper authority. The petition alleges and the answer denies performance on the part of plaintiffs. The petition alleges the value of the leasehold at $15,000 over and above the rent reserved to be paid and the betterments and improvements to be made. The answer denies such or any value, or that plaintiffs were damaged at all. At the close of plaintiffs' case, defendants asked an instruction in the nature of a demurrer to the evidence, which instruction was allowed, and a verdict accordingly thereby coerced. On due steps, plaintiffs come here by appeal.

The case can be disposed of without setting forth the testimony. It may proceed on the theory it tended to show that on the 3d day of September, 1904 (the date of the lease in question, which, for convenience, we will call the "second" lease) plaintiffs held possession of the premises under a former lease, which we will call the "first" lease. The term of the first was from February 1, 1901, to February 1, 1906—the second commencing where the first ended. During the life of the first lease (i. e., before the bankruptcy) plaintiffs conducted a millinery store in the demised premises. The building was two stories high in front, but did not extend that high all the way to the rear—the last 55 feet back to the alley being only one story high. The walls of the one-story part were too old, thin, and weak to support a second story. There was a basement or cellar under the front part of the building but it was unconnected with the outside and could not be rented. Under the one-story part there was no basement. The building was in a region where leaseholds were in demand and rents stiff. Plaintiffs were paying $375 monthly rent during the term of the first lease. While things were in this fix and their term had yet nearly a year and a half to run, they made the second lease. That lease contemplated a rather ambitious plan of improvement at the expense of the tenants, viz.: The walls of the one-story part of the old building were to be razed, excavating was to be done for a basement under that, which was to be connected with the basement of the front part. Access to the basement from the street was to be provided. Then a new building 24 by 55 feet was to be erected, two stories high, so as to make a two-story building from street to alley—remodeling it and making the building rentable from top to bottom and from end to end. The working theory indulged was that the rear of the first story could be rented for a saloon; that one half of the front of the first story could be rented for a jewelry store; that plaintiffs could conduct their millinery business in the other half of the front; that the basement could be rented for a turkish bath establishment; and that the second story could be rented—the front to dentists, and the back part to a "first class manicurist and dressmaker." The evidence tends to show that before or presently after the second lease was made some negotiations, never consummated, began with a jeweler in Des Moines, Iowa; that some negotiations, never consummated, began with a colored man named Lucas to run turkish baths in the basement; that some were commenced and never consummated with a brewer to establish a tippling shop in the rear of first story—all when reconstructed. There was trouble in obtaining a license, and the projected dramshop died of some prenatal illness.

At that time plaintiffs had prepared paper plans and specifications for the remodeling, but presently fell over the brink of insolvency and began proceedings in the federal court to be relieved of their pecuniary liabilities. It creeps into the case that they were discharged as bankrupts in October, 1905, though no certificate appears. It is conceded the first lease was listed as an asset and sold. It is not as clear as it might be how possession was held of the premises after plaintiffs' failure—we mean whether under plaintiffs' first lease so sold as an asset, or whether it was held by virtue of a new lease between defendants and tenants then put in possession. But we gather that the old lease was forfeited; that plaintiffs left possession; that the premises were not at all times occupied; that finally they were rented,...