Long Mercantile Co. v. Saffron

• Decision Date: 04 May 1937
• Docket Number: No. 23906.,23906.
• Parties: LONG MERCANTILE CO. v. SAFFRON.
• Court: Missouri Court of Appeals

104 S.W.2d 770

LONG MERCANTILE CO. v. SAFFRON.

No. 23906.

St. Louis Court of Appeals. Missouri.

May 4, 1937.

Appeal from Circuit Court, Jefferson County; E. M. Dearing, Judge.

"Not to be published in State Reports."

Suit by the Long Mercantile Company against Charles Saffron, wherein judgment in conformity with verdict for plaintiff for amount admitted to be due by defendant was entered immediately in conformity with local practice, without awaiting the filing of a motion for a new trial or the action of the trial court on it. From an order overruling plaintiff's motion for judgment non obstante veredicto, and sustaining plaintiff's motion for a new trial, both parties appeal.

Affirmed and cause remanded. Plaintiff's appeal dismissed.

Thompson, Mitchell, Thompson & Young, of St. Louis, and Terry, Terry & Terry, of Festus, for Long Mercantile Co. Edgar & Matthes, of De Soto, for Saffron.

BENNICK, Commissioner.

This case, which comes to the writer on reassignment, has reached this court upon the separate appeals of both plaintiff and defendant. The cause of action is one for the balance of rent alleged to be due and unpaid under a written lease executed between plaintiff and defendant.

The plaintiff, Long Mercantile Company, is the owner of a piece of improved business property in Crystal City, Mo., where defendant, Chas. Saffron, has been engaged for many years in the confectionery and tobacco business.

On May 28, 1929, the parties executed a written lease, by the terms of which plaintiff leased to defendant the premises in question for a term of five years, commencing September 1, 1929, and ending September 1, 1934, at a reserved annual rental of $1,500 payable monthly in advance in installments of $125 each.

Save for the month of November, 1931, defendant paid the rent in full until January, 1932, after which time he paid only $75 a month until the termination of the lease at the expiration of the term. This suit is for the aggregate sum of $1,725 alleged to be due and unpaid, representing the sum of $125 for the month of November, 1931, and the balance of $50 a month for the period of thirty-two months from January 1, 1932, to the end of the term of the lease.

So far as the issues in the case were concerned, defendant admitted that he owed plaintiff the sum of $125 for the month of November, 1931, but contended that in the latter part of 1931, plaintiff had orally agreed with him that from and after January 1, 1932, the rent for the remainder of the term would be only $75 a month, the sum which defendant concededly paid during the whole of that period.

In his answer defendant set up that because of the general depression in business in 1931, and especially in Crystal City, Mo., he founnd that it was impossible for him to continue to pay the monthly rent of $125 reserved in the lease; that he talked the matter over with plaintiff, and entered into the agreement with plaintiff for the modification of the lease at the lower rental; that thereafter defendant not only paid the lower rent, but the same was accepted and retained by plaintiff; that plaintiff was consequently estopped from further claiming the full amount of the rent originally reserved in the lease; and that defendant was not indebted to plaintiff save as to the sum of $125, which he tendered to plaintiff by his answer.

So the controversy in the case was over the question of whether there had been an oral modification of the lease, supported by a valid consideration, so that defendant's subsequent payments of $75 a month were in full of what he owed plaintiff for the balance of the term, or whether, to the contrary, such payments were but part payments, and were both made by defendant and accepted by plaintiff with that mutual understanding.

Plaintiff's evidence was positive that there had been no agreement to reduce the rent, while defendant's evidence was equally positive that such an agreement had been made after defendant had assured plaintiff that because of business conditions he could not continue to pay the rent originally reserved, and would be forced to go out of business unless a reduction in rent should be given him.

It was shown that of the $75 checks subsequently sent plaintiff by defendant and cashed by plaintiff, some five of them at least, when introduced in evidence as defendant's exhibits, bore notations on their face indicative of the fact that the particular checks had been given and accepted in full payment of the rent due for the current months for which they were drawn. Plaintiff's evidence was that no such notations had appeared on the checks when they were cashed by it, the implication to follow being that the notations had been written upon the canceled checks for the purposes of the trial after the checks had cleared and had been returned to defendant by his bank. On the other hand, defendant's evidence was that the notations had been upon the checks as originally issued, and as accepted and cashed by plaintiff. Corroboration of defendant's version of the facts was furnished by the secretary of the Jefferson Trust Company, who, when called upon to testify in the light of his banking experiences, gave it as his opinion, after an examination of the five canceled checks, that the notations had been put upon them before the time of their payment by the bank as indicated by the perforated stamp upon each of them.

While plaintiff's president admitted that two of the checks originally received from defendant had borne the notations in question, he testified that he had personally taken each of such checks back to defendant, and in each instance had insisted upon a check without any such notation upon it, which substitute checks it was that his company had cashed. He testified further that he had sent defendant several statements showing the balance of rent due, and that defendant had assured him that he would pay the balance due as soon as he was able to do so. As opposed to this, defendant testified that only one check was ever returned to him by plaintiff, which was for the sole reason that the figures of $75 were blurred upon it, and that plaintiff had made no demand upon him for additional rent until in January, 1934, after he had paid for two full years at the lower rate.

Upon the submission of the...