Lemp Hunting & Fishing Club v. Hackmann

• Decision Date: 08 April 1913
• Citation: 172 Mo. App. 549,156 S.W. 791
• Court: Missouri Court of Appeals
• Parties: LEMP HUNTING & FISHING CLUB v. HACKMANN et al.

156 S.W. 791

172 Mo. A. 549

LEMP HUNTING & FISHING CLUB v. HACKMANN et al.

St. Louis Court of Appeals. Missouri.

April 8, 1913.

Rehearing Denied May 20, 1913.

1. APPEAL AND ERROR (§ 1009) — REVIEW — QUESTIONS OF FACT.

In an equity case, it is the duty of the Court of Appeals to review and weigh the entire evidence, and, while deference may be given to the findings of the chancellor, they are not binding.

2. CORPORATIONS (§ 388) — ULTRA VIRES — ESTOPPEL.

Where a lease to a corporation for ten years had been fully performed by the corporation, the lessor, who had contracted with the corporation, in its corporate name, recognized its corporate capacity to receive the grant, received and retained the rent, and for ten years acquiesced in the exercise by the corporation of its rights under the lease, was estopped to plead ultra vires as a defense to a suit for specific performance of an agreement in the lease to renew; the agreement sought to be specifically enforced not being wholly executory, since the consideration

for the renewal was the payment of the rent during the term of the lease.

3. LANDLORD AND TENANT (§ 27) — LEASE — VALIDITY — MISTAKE.

The intention of a lessee to use the land only for hunting and fishing purposes, and not to prevent its use by the lessors for purposes not inconsistent with its purposes and the belief of the lessors that the lessee would not deprive them of the use of the land, did not constitute a mutual mistake where it was intended to execute an absolute lease.

4. CONTRACTS (§ 99) — MISTAKE — SUFFICIENCY OF EVIDENCE.

Clear, cogent, and convincing evidence is required to overcome the presumption that parties to a contract, who were sui juris, could read and were in full possession of their mental faculties, knew what they signed, especially where they waited for approximately ten years before repudiating the contract.

5. SPECIFIC PERFORMANCE (§ 8) — DISCRETION OF COURT.

Specific performance is not a matter of absolute right, but is one somewhat of grace resting in the sound discretion of the court, to be exercised, however, not arbitrarily or capriciously, but according to established rules and principles.

6. SPECIFIC PERFORMANCE (§ 16) — DEFENSES — ENFORCEMENT INEQUITABLE OR INVOLVING HARDSHIP.

Specific performance may be denied even where no fraud or mistake appears, if to grant it would inflict such a burden or hardship upon defendants as to be inequitable and unconscionable.

7. SPECIFIC PERFORMANCE (§ 16) — DEFENSES — ENFORCEMENT INEQUITABLE OR INVOLVING HARDSHIP.

Where a lessee of land for hunting and fishing purposes took an absolute lease for the purpose of protecting its privileges, but never attempted to assert or exercise any right or privilege other than its hunting and fishing privileges, and showed no disposition of doing so in the future, specific performance of an agreement to renew the lease would not be denied on the ground that it would be inequitable or involve hardship.

Appeal from Circuit Court, Lincoln County; James D. Barnett, Judge.

Action by the Lemp Hunting & Fishing Club against John H. Hackmann and others. From a judgment dismissing the bill, plaintiff appeals. Reversed and remanded, with instructions.

Wm. A. Dudley, of Troy, and Eugene Buder, of St. Louis, for appellant. R. L. Sutton and Charles Martin, both of Troy, for respondents.

ALLEN, J.

Plaintiff is a corporation incorporated under the provisions of article 10, c. 33, Rev. Stat. 1909. The purposes of its organization, as set out in its Constitution, are: "To promote field sports, to encourage the protection of fish and game in the state of Missouri, to encourage rational enjoyment and social amusements among the members of the club by providing debates, reading and other lawful forms of amusement. But this club shall not engage in any business having in view any pecuniary profit of any kind, nor shall it have any connection with any manufacturing, agricultural or mercantile business purpose."

The action is one in equity for specific performance. It is brought to compel the defendants, John H. Hackmann, Hermann H. Hackmann, and Herman H. Goos, and Mina Hackmann, wife of John H. Hackmann, and Sophia Goos, wife of Herman Goos, to specifically perform and carry out a covenant for renewal of a certain lease of lands in Lincoln county, which plaintiff had been using for hunting and fishing purposes, and to execute a new lease to plaintiff of said lands, in accordance with the said covenant contained in the original lease.

The petition avers the corporate existence of plaintiff, alleges that on or about May 1, 1900, and at the institution of the suit, defendants John H. Hackmann, Hermann H. Hackmann, and Herman H. Goos were the owners in fee of certain real property described in the petition, and that on or about July 5, 1900, they, together with their said wives, executed to plaintiff a lease to said property for a term of ten years beginning May 1, 1900, and ending April 30, 1910, at a yearly rental of $37.50, payable annually in advance. The petition further avers that said lease provided, among other things, that plaintiff, its successors and assigns, was to have the privilege of a renewal thereof for an additional term of ten years from April 30, 1910, at the same rental therein stipulated. It is then further averred that the lease was duly acknowledged or proved by the aforesaid parties, and duly recorded in the office of the recorder of deeds of said Lincoln county on July 12, 1900. The petition further alleges that plaintiff has complied with all the terms and provisions of the lease on its part, and that before the expiration of the term thereof notified the defendants of its willingness to enter into a renewal lease, and that it elected to avail itself of the privilege of renewal contained in the lease, and requested and demanded defendants to execute to it a proper lease to the premises for said renewal term on the same terms as contained in the original lease, except the renewal thereof, but that defendants refused and continue to refuse to execute the same. Plaintiff then averred a tender of $37.50 as rental for the first year of the new lease, and the payment of the same into court, to be paid to defendants upon the execution of said new lease to plaintiff, and prayed that the court adjudge and decree that defendants specifically perform the said covenant for renewal and execute a new lease to said premises to plaintiff, its successors and assigns, for a term of ten years beginning May 1, 1910, and ending April 30, 1920, for the same rentals, and with the same or like covenants and agreements as contained in the original lease, except the renewal clause thereof.

The answer, which is quite lengthy, first denied generally the allegations of the petition. It then states that defendants John Hackmann, Hermann Hackmann, and Herman Goos, at the times mentioned in plaintiff's petition, were and are the owners in fee of the real estate in question, holding title thereto as tenants in common, and that defendants Mina Hackmann and Sophia Goos have no interest therein, except their marital rights as the wives, respectively, of defendants John H. Hackmann and Herman Goos.

It is admitted by the answer that the defendants signed their names to the written instrument sued upon; but it is averred that they never agreed to said instrument or to the terms thereof, and that their signatures thereto were obtained without knowledge of its terms on their part by fraudulent practices of plaintiff; that, prior to the execution of the lease, negotiations were had between plaintiff and defendants with a view to leasing to plaintiff the hunting and fishing privileges upon the premises aforesaid; and that as a result of such negotiations it was understood and agreed between the parties that defendants should lease to plaintiff the hunting and fishing privileges thereon for a term of ten years, but that no mention was made of any right to a renewal of the lease to the premises, or that plaintiff was to acquire therein any other interest, right, or privilege than that to hunt and fish thereon.

It is then alleged that plaintiff caused the lease to be prepared, and through its agents fraudulently procured the signatures of defendants; that plaintiff's agents first approached defendant Goos to obtain his signature, but that the latter was busy and requested them to first take the same to defendants John H. Hackmann and Hermann H. Hackmann and procure their signatures; that thereupon plaintiff's agents went to defendant John H. Hackmann, and the latter requested that he be permitted to read the lease; that thereupon plaintiff's agents pretended to be in a hurry to return to the city of St. Louis and falsely represented to the said Hackmann that the lease was satisfactory to defendant Goos and approved by him, and that the latter had requested them to say that said Hackmann should sign the instrument as prepared; that nevertheless said defendant Hackmann insisted upon reading said instrument, but that one of plaintiff's agents, pretending to be in great haste, proposed to read it to him, and thereupon pretended to do so; but that with intent and for the purpose of deceiving and defrauding said defendant, and of obtaining his signature to the lease without knowledge of its terms, failed to read the clause therein granting to plaintiff the right of renewal of said lease, and incorrectly read said instrument so as to make it appear to grant only the privilege of hunting and fishing on the premises, and further falsely represented to said defendant that the instrument correctly expressed the agreement reached between the parties as a result of their prior negotiations; and that defendant John H. Hackmann, in reliance upon said false representations, signed his name to the lease and caused his wife, Mina Hackmann, to sign the same.

The answer then alleges that plaintiff's agents procured the...