Lee v. Armour Bldg. Co.

• Decision Date: 10 June 1929
• Docket Number: No. 16653.,16653.
• Citation: 18 S.W.2d 102
• Parties: LEE v. ARMOUR BLDG. CO.
• Court: Missouri Court of Appeals

18 S.W.2d 102

LEE v. ARMOUR BLDG. CO.

No. 16653.

Kansas City Court of Appeals. Missouri.

June 10, 1929.

Appeal from Circuit Court, Jackson County; Ralph S. Latshaw, Judge.

"Not to be officially published."

Action by James W. Lee against the Armour Building Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Jenkins & Vance and Mosman, Rogers & Buzard, all of Kansas City, for appellant.

Percy C. Field and Horace Guffin, both of Kansas City, for respondent.

ARNOLD, J.

This is an action in damages for breach of contract. Defendant is a Missouri corporation, engaged in the operation of the Aladdin Hotel, located at 1213-1215 Wyandotte street in Kansas City, Mo., with its principal place of business there. Plaintiff also lives in Kansas City, and is engaged in the restaurant business.

The amended petition, upon which the cause was tried, alleges that on October 30, 1926, plaintiff and defendant entered into a written contract, or lease, for a term of one year from the date thereof, whereby defendant let to plaintiff that part of the Aladdin Hotel known as the café and that part of said premises known as the roof garden, upon the performance of certain stipulated conditions, and with the privilege of extending the term of the lease for another year from October 30, 1927; that plaintiff was to have the exclusive right to operate a café in the quarters in said hotel theretofore used as a café and kitchen, and to operate in connection with the roof garden; that pursuant to said lease plaintiff entered into possession of the premises, and continued in possession and operation of the roof garden and café until on or about February 13, 1927; that during all of said time plaintiff fulfilled his part of the contract, but that defendant, its agents, servants and employees, failed, neglected, and refused to carry out the terms of said contract, and unlawfully, and over the protests of plaintiff, wrongfully interfered with the operation of said café and roof garden, and wrongfully took possession of the same in violation of said lease and contract; that defendant, by and through its agents and servants, interfered with plaintiff, and made it impossible for him to perform his side of the contract, and unlawfully took possession of the premises in this, to wit, by the manager of the hotel, defendant's agent, telling a guest of the hotel and café and roof garden, a Mr. O'Connell, on or about January 15, 1927, at 7:30 p. m., that the food served by plaintiff was "rotten," thereby preventing plaintiff from having many guests, patrons, and customers he would have obtained from the hotel; that said manager, on or about February 6, 1927, at 8 a. m., came into the premises of plaintiff, took the linens off the tables in the roof garden; that during the months of December, 1926, January and February, 1927, he caused the employees of plaintiff to become dissatisfied; that the said manager came into the premises at various times in January and February, 1927, declaring to plaintiff and others that defendant was going to take over the operation of said café and roof garden; that defendant failed to erect an electric sign in accordance with the terms of the lease contract; that defendant employed one of plaintiff's discharged employees to enter said premises and take an inventory of plaintiff's equipment, and take possession of the premises; by sending bell boys, agents, and servants of defendant out of the hotel for food and serving it to guests; by exacting a commission from John Campbell for the purpose of his remaining in the employ of plaintiff for the month of January, 1927; and by said manager and an auditor entering said premises on February 14, 1927, and taking possession thereof; and by unlawfully withholding possession from plaintiff.

The petition alleges that, at the time defendant violated the terms of said lease, as above stated, plaintiff had been, and was, making a profit in excess of $500 per month, and, had he not been interfered with as alleged, he would have made a profit during the life of said lease of $10,000. The petition further charges that in the preparation for carrying out the terms of said lease plaintiff expended certain sums of money for equipment, rearrangements, and improvements in the leased premises, and incurred obligations by reason thereof in the total sum of $1,635. Judgment is sought in the total sum of $11,635.

The answer admits the corporate status of defendant and that defendant entered into a contract with plaintiff, as alleged, but avers said contract was terminated and rescinded by plaintiff, and generally denies as to all allegations of the petition not specifically admitted in the answer. Defendant also files a counterclaim for $211.51, for defendant's percentage of the receipts from the operation of the leased premises for the month of January, 1927, and for $59.31 for defendant's percentage of the receipts of said roof garden during the first 14 days of February, 1927, and alleges plaintiff had failed and refused to account to defendant for the receipts for said period in January and February, 1927, as provided in the lease. Judgment is sought on the counterclaim for $270.82.

Plaintiff's reply to the answer and counterclaim is a general denial of all matters therein contained not admitted as facts in the amended petition. Trial was to a jury, resulting in a verdict for plaintiff on his petition in the sum of $5,000, and for defendant on its counterclaim in the sum of $270. Judgment was entered accordingly. Motions for a new trial and in arrest were overruled, and defendant has appealed.

The record shows plaintiff operated an electric waffle shop on the east side of Baltimore avenue, between Twelfth and Thirteenth streets in Kansas City, about 100 feet from the hotel; that in serving the Aladdin Hotel plaintiff prepared and cooked most of the food served therein in said waffle shop, conveying the same to the hotel in a food cart, through an alley to the hotel restaurant, where it was kept warm by means of steam tables and other similar contrivances; but short orders, such as steaks and chops, were prepared in the kitchen of the roof garden.

The lease was received in evidence, but it is unnecessary to set it out in full in this opinion, and we shall refer only to such parts as are necessary in considering this appeal. The term of the lease is stated therein as from October 30, 1926, to October 30, 1927, plaintiff having the privilege of renewal for another year by notifying defendant of his intention before the expiration of the first 12 months. Briefly stated, the terms and conditions of the lease are that plaintiff shall pay defendant, for the right to operate said café, 5 per cent. of the first $65, and 10 per cent. in excess of $65, of each day's gross receipts, payable at the end of each month, to be determined by the cash register record; that the restaurant shall be conducted in a high-class manner, in keeping with the hotel; that there is to be no subletting or assignment of the lease without the written consent of the lessor; that lessee shall have exclusive use of the present equipment in...