Lincoln Trust Co. v. Nathan

• Decision Date: 27 May 1903
• Citation: 175 Mo. 32,74 S.W. 1007
• Parties: LINCOLN TRUST CO. et al. v. NATHAN et al.
• Court: Missouri Supreme Court

74 S.W. 1007

175 Mo. 32.

LINCOLN TRUST CO. et al. v. NATHAN et al.

Supreme Court of Missouri, Division No. 1.

May 27, 1903.

LANDLORD AND TENANT—DESTRUCTION OF PREMISES — RENT — LIABILITY OF TENANT— COVENANT TO RECONSTRUCT—INDEPENDENT COVENANTS — CONSTRUCTION — EQUITY—JURISDICTION—CANCELLATION OF CONTRACT— ENFORCEMENT OF FORFEITURE.

1. Where plaintiffs sued to recover rent for a period subsequent to the destruction of the building by fire, and defendants set up that, under the covenants of the lease, it was plaintiffs' duty to have reconstructed the premises which had been destroyed by fire, and that plaintiffs had not done so, and prayed for a cancellation of the lease, the answer having sought affirmative relief, which, if granted, would cut out the foundation upon which plaintiffs' right to recover depended, it converted the case into one in equity, and hence a trial by jury was properly denied.

2. The destruction of premises by fire does not, as a matter of law, terminate a lease thereof, or relieve the lessee from his obligation to pay rent.

3. A lease provided that, if the building was injured by fire, the lessor should repair or rebuild within a reasonable time; and in the same paragraph of the lease, and separated from the covenant to rebuild by only a semicolon, the lessees agreed that, in consideration of the erection of a new building, they would pay the rent for the period of the erection of such new building, or during the term of the repair of the premises, in case they were not wholly destroyed. Held, that the covenant to pay rent and that to rebuild were dependent covenants, and the landlord, having failed to rebuild on destruction of the premises, could not recover further rent.

4. In an action for rent of premises which had been destroyed by fire, and the lease whereof had required the landlord to rebuild within a reasonable time, it appeared that the building was destroyed February 3, 1900, and that a permit for the erection of a new building was not issued until June 11th, and the new building not completed until October 2d; that, between the date of the fire and the commencement of suit, nothing had been done but to enter into a contract on March 22d for the removal of the ruins, and the making of a new agreement for a new party wall. The evidence for the defendants tended to show that the premises could have been cleared up and a new building erected within 4½ months after the fire. Held to support a finding that the lessor did not rebuild within a reasonable time.

5. Defendants were not required, as a condition precedent to a rescission of the contract, to turn over to plaintiffs a sum which they had received from insurance on the elevator, etc., which they were required by the lease to put into the building, and the insurance on which was to go to the lessors if the building were destroyed; no such issue having been raised by the pleadings in the case.

6. Defendants were not required to turn over to plaintiffs insurance collected by them on account of a policy against loss of rent in case of the destruction of the building.

7. The court having decreed a cancellation of the lease because of defendants' failure to repair as provided, it was proper to decree that rent paid after the fire should be returned to defendants.

Appeal from St. Louis Circuit Court; D. D. Fisher, Judge.

Action by the Lincoln Trust Company and others against Henry J. Nathan and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

Geo. W. Lubke, for appellants. R. E. Rombauer and M. B. Jonas, for respondents.

MARSHALL, J.

This is an action, begun May 5, 1900, by the trustees under the will of Joseph J. Mersman, deceased, to recover from the defendants H. J. and Isaac Nathan lessees, and the People's House Furnishing Company, a corporation, assignees of the lessees, the sum of $1,200, rent for the premises numbered 814 and 816 North Broadway, St. Louis, for the months of April and May, 1900. The answer admits the incorporation of the trust company and of the People's House Furnishing Company, and denies generally all the other allegations of the petition. By way of cross-bill, the defendants then allege that on December 29, 1892, the then trustees under the Mersman will leased to H. J. and Isaac Nathan the premises aforesaid for a term of ten years, at an annual rental of $7,200, payable in monthly installments of $600; that said lease contained the following clause: "It is agreed by the said parties hereto that if the building hereby demised and leased shall be either partially or wholly destroyed by fire or other casualty during the term of this lease, the said parties of the first part, or their successors, shall repair or rebuild the same within a reasonable time after said partial or entire destruction, and in case it becomes necessary to erect a new building, by reason of the entire destruction of said leased building, then said new building shall be of the size, dimensions, strength and arrangement of the present leased building, and the said parties of the first part, or their successors, covenant to and with the said parties of the second part, their heirs and assigns, to erect said new building immediately after the destruction of the present leased building, and under the superintendence and direction of said parties of the second part, their heirs or assigns. And said parties of the first part, or their successors, covenant and agree to have said new building completed and ready for occupancy by said parties of the second part, their heirs and assigns, as soon as possible after the destruction of the present leased building; and in consideration of the erection of said new building, should the same be erected as aforesaid, and in further consideration of delivery of said new building for occupancy to said parties of the second part, or to their heirs and assigns, for the unexpired term of this lease, the said parties of the second part and their heirs and assigns, agree to and with said parties of the first part, and their successors, to pay to the latter the rent as above reserved for the period of the erection of said new building." It is then alleged that the Nathans assigned the lease to the People's House Furnishing Company, as they had a right to do under the lease, both lessees and assignee being liable for the rent, however; that the premises were totally destroyed by accidental fire on February 4, 1900; that plaintiffs violated their contract to erect a new building immediately after the destruction of the leased building, and to complete the same and have it ready for occupancy as soon as possible after its construction; that although four months had elapsed since the destruction of the leased premises, which is averred to be more than a reasonable time in which to erect a new building in place of the burned one, the plaintiffs had done substantially nothing looking towards the erection of a new building, and had not even commenced the erection of a new building; that said covenant to rebuild went to the entire consideration of said lease, and on which all of the covenants of the defendants depended; that, as plaintiffs well knew, the defendants are retail merchants, and that plaintiffs' wrongful conduct deprived defendants of a suitable place for carrying on their business; and that the defendants were forced to make permanent arrangements for other premises. The defendants therefore prayed a decree canceling said lease. The answer and cross-bill of the People's House Furnishing Company contains substantially the same general averments, and then alleges that it paid to the plaintiffs the rent for the months of February and March, 1900—that for March being paid in consideration that the plaintiffs would erect a new building as soon as possible— and then concludes with a prayer for judgment for $1,120, being the $600 rent for March and the $600 rent for February, less the rent for the first four days thereof. The reply is a general denial. The case came on for trial on October 22, 1900, and the plaintiffs demanded a trial by jury, which the court denied, and the plaintiffs duly excepted. Hence the appeal to and jurisdiction of this court. At the request of both parties the court made a special finding of facts, and stated its conclusions of law separately; the finding and judgment being in favor of the defendants, decreeing a cancellation of the lease, and a judgment for the People's House Furnishing Company for $1,169 on account of the rent paid for February and March, and interest thereon. After proper steps, the plaintiffs appealed. The facts shown upon the trial will be stated in the course of the opinion.

1. The first error assigned is the denial of a trial by jury. The plaintiffs contend that the suit is an action at law for two months' rent, and that the equitable defenses in the answer cannot convert the case into one in equity, but that the utmost effect that such defenses could have would be to require the court to hear the equitable defenses first, and then to proceed with the case at law. The infirmity underlying this position is that the answer does not simply interpose an equitable defense, but it is a cross-bill in equity, asking affirmative relief, which, if granted, as it was, would cut out the foundations upon which the plaintiffs' right to recover depended, and therefore destroyed the plaintiffs' case. This accentuates the difference between a mere equitable defense, and a cross-bill in equity asking affirmative relief, which, if granted, destroys the plaintiffs' case. This being true, the answer and cross-bill converted this case into one in equity and a trial by jury was properly denied. Allen v. Logan, 96 Mo. 591, 10 S. W. 149; Swon v. Stevens, 143 Mo. 384, 45 S. W. 270; Dunn v. McCoy, 150 Mo. 548, 52 S. W. 21; Courtney v. Blackwell, 150 Mo. 245, 51 S. W. 668; Martin v. Turnbaugh, 153 Mo. 173, 54 S. W. 515; Beland v. Brewing Association,...