Mack v. Eyssell

• Decision Date: 20 April 1933
• Docket Number: 30435
• Citation: 59 S.W.2d 1049,332 Mo. 671
• Parties: A. H. Mack and Ida Mae Shofstall, Executrix of the Last Will and Testament of Fred H. Shofstall, Appellants, v. Helen A. Eyssell
• Court: Missouri Supreme Court

59 S.W.2d 1049

332 Mo. 671

A. H. Mack and Ida Mae Shofstall, Executrix of the Last Will and Testament of Fred H. Shofstall, Appellants, v. Helen A. Eyssell

No. 30435

Supreme Court of Missouri

April 20, 1933

Appeal from Jackson Circuit Court; Hon. Stanford A. Lyon Judge.

Affirmed.

Daniel V. Howell, C. P. LeMire and Leon Greenebaum for appellant.

(1) The court erred in sustaining the defendant's demurrer to the second amended petition filed herein, and awarding treble costs and dismissing said petition. If Fred H. Shofstall had a cause of action for breach of the lease, this cause of action remained with him even after his assignment of his interest in the lease to A. H. Mack, because said assignment to carry with it such a cause of action, must make express reference to the same. Landlord and Tenant, 35 C. J. secs 94, 96, pp. 995, 996. (2) The execution of the so-called preliminary agreement between defendant and the Josephsons and Statz, together with the defendant's expressed repudiation of the lease, all of which occurred before Shofstall's assignment of his interest in the lease to A. H. Mack, constituted an anticipatory breach of the lease which gave to said Shofstall and Mack an immediate right of action, before the erection of the "addition" on the "adjoining lot" and delivery of said addition to the Plaza Hotel Company subsequently incorporated. (a) It is the law in this and other jurisdictions that where a party to a contract repudiates the same by word or conduct, or voluntarily places it out of his power and ability to perform the same, such repudiation or voluntary incapacity to perform constitutes an anticipatory breach of the contract, such as to give the other party sued the right to treat the contract as broken, and to institute a suit for damages prior to the time of performance mentioned in the contract. 13 C. J. 650, sec. 724; 3 Williston on "Contracts," secs. 1314, 1321, 1326, 1335; Page on "Contracts," secs. 2885, 2917; Elliott on "Contracts," secs. 2028, 2036; 6 R. C. L., "Contracts," secs. 385, 387; Powell v. Batchelor, 192 Mo.App. 67; Armstrong v. Henley, 182 Mo.App. 320; Laclede Power Co. v. Stillwell, 97 Mo.App. 258; Gibson v. Whip Pub. Co., 28 Mo.App. 450. (b) The doctrine of anticipatory breach, while originating in contract of employment and contract of marriage, has been extended to other contracts of all kinds. 5 Page on "Contracts," sec. 2890; Williston on "Contracts," sec. 1326; Segel v. Ensler, 37 N.Y.S. 694. (c) The following authorities support the proposition that the doctrine of anticipatory breach should, upon authority and principle, be applied to a lease as well as to any other kind of a written contract. Ford v. Tiley, 6 B. & C. 325, 13 Eng. Com. Law 154; 35 C. J. "Landlord and Tenant," sec. 533, p. 1208; 6 R. C. L. "Contracts," sec. 387; 3 Elliott on "Contracts," p. 216, sec. 2036; 3 Williston on "Contracts," p. 2378, sec. 1326; Page on Contracts," p. 5142, sec. 2917; In re Mullings Clothing Co., 238 F. 63. (3) The action in this case is founded upon the implied covenant to deliver to the lessee the possession of the "addition" when erected upon the "adjoining lot." (a) The allegations on page 10 of the second amended petition and on page 18 of the same, beginning with the fifth line from the bottom of the latter page, set forth an implied agreement to deliver possession of the property or "addition" to the lessee when the same was erected, and a breach of that implied agreement. (b) The following authorities which the defendant cited to the court below, and all of which relate to actions brought upon covenant for quiet enjoyment, have no relation to the present action: 36 C. J. sec. 697, p. 78; 36 C. J. sec. 703, p. 81; 36 C. J. sec. 706, p. 82; 18 Am. & Eng. Ency. of Law (2 Ed.) p. 627; Taylor "Landlord & Tenant," p. 370, sec. 306; Ireland v. Birchman, 2 Bing. N. Cas. 90, 29 Eng. Com. Law Rep. 266, 132 Reprint 36. (c) The very case which the defendant most wholly relied upon below, to-wit, the case of Ireland v. Birchman, 2 Bing. N. Cas. 90, is in fact, and has been cited by Corpus Juris to be, an authority distinguishing between an action brought upon a covenant for quiet enjoyment and an action brought upon an implied covenant to deliver possession. Ireland v. Burchman, 2 Bing. N. Cas. 90, supra; 36 C. J. "Landlord and Tenant," sec. 703, p. 81. (4) The order dismissing the petition and assessing costs against the plaintiff should be reversed.

Mertsheimer & O'Donnell and Kelly, Buchholz & O'Donnell for respondent.

(1) The doctrine of anticipatory breach does not apply to this case for the reason that the alleged breach was not treated as such by appellants and moreover a breach of one independent covenant of a lease, not amounting to an eviction, does not authorize the tenant to surrender possession or treat the contract as discharged. 13 C. J. Contracts, 654; Johnstone v. Milling, 16 Q. B. D. 460; Roehm v. Horst, 178 U.S. 1; Anson on Contracts, Star, pp. 281, 282, 283; Williston on Contracts, sec. 1329; Oliver v. Loyden, 163 Cal. 124, 124 P. 731; McCready v. Lindenboom, 172 N.Y. 400; In re McAllister v. Mohler Co., 46 F.2d 91; Bremmer v. Salisbury, 167 Cal. 522, 140 P. 30; Dingley v. Oler, 117 U.S. 490; Kelly v. Ins. Co., 186 N.Y. 19; Killian v. Co., 251 N.Y. 44; Leon v. Barnsdall Zinc Co., 309 Mo. 276; Kerr v. Clark, 19 Mo. 132; Matthews v. Tobener, 39 Mo. 115. (2) Petition did not state facts sufficient to constitute a cause of action because there was no cause of action in plaintiff Shofstall. 35 C. J. Landlord & Tenant, secs. 94, 95, pp. 995, 996. (a) The petition attempts to allege facts showing that the obligation breached was an interesse termini. If it was such, then Shofstall had no cause of action. 35 C. J. p. 953, sec. 6; 33 C. J. p. 172; Austin v. Huntville, 72 Mo. 542; Underhill, Landlord & Tenant, p. 354, sec. 243; 1 Taylor, Landlord & Tenant (9 Ed.) p. 210, sec. 173; 1 Taylor, Landlord & Tenant (9 Ed.) p. 54, sec. 37; 1 Taylor, Landlord & Tenant (9 Ed.) p. 91, sec. 68; 1 Taylor, Landlord & Tenant (9 Ed.) p. 13, sec. 15; 1 Taylor, Landlord & Tenant (9 Ed.) p. 95, sec. 72; 1 Taylor, Landlord & Tenant (9 Ed.) p. 370, sec. 306; 36 C. J. p. 50, sec. 665; 36 C. J. sec. 671, p. 54; 36 C. J. sec. 672, p. 55; Orchard v. Wright, 264 Mo. 554, 175 S.W. 884; 36 C. J. p. 78, sec. 697; 36 C. J. p. 81, sec. 703; 36 C. J. p. 82, sec. 706; 2 Underhill, Landlord & Tenant, p. 1134, sec. 672; 18 Amer. & Eng. Ency. of Law (2 Ed.) 627; Ireland v. Birchman, 2 Bing. N. Cas. 90, 29 Eng. Com. Law Rep. 266, 132 Reprint 36; Perry v. Watts, 67 Ga. 602; Trull v. Dillage, 8 N.Y. 115. (b) The petition attempts to recover upon a joint obligation in favor of joint obligees, Mack and Shofstall. Since the petition fails to state a cause of action as to Shofstall, then it is demurrable upon the ground that it fails to state a cause of action as to both plaintiffs. Scott v. Alton Banking Co., 175 S.W. 920. (3) Allegations in plaintiffs' petition that defendant erected "an addition" to the Mack Hotel is a mere conclusion, the truth of which is not admitted by defendant's demurrer, and such allegation does not state facts sufficient to constitute a cause of action and defendant's demurrer was therefore properly sustained. Mallinckrodt Chemical Works v. Nemnich, 69 S.W. 355, 169 Mo. 388; Barrie v. United Rys. Co., 138 Mo.App. 557; Vogeler v. Punch, 205 Mo. 558; Gibson v. Railroad, 225 Mo. 473; Lappin v. Nichols, 172 S.W. 596, 263 Mo. 285; Swentzel v. Holmes, 175 S.W. 871; State v. Armour, 176 S.W. 382, 265 Mo. 121; Richardson v. Dell, 191 S.W. 63; State v. Ellison, 196 S.W. 1103; Bondurant v. Brotherhood of American Yeoman, 199 S.W. 424; Zasemowich v. American Mfg. Co., 213 S.W. 799; Lackawanna v. Long, 231 Mo. 605, 133 S.W. 35; State v. Railroad, 240 Mo. 35, 144 S.W. 1088; State v. Lee, 233 S.W. 20, 288 Mo. 679; Cluett v. Union Electric, 220 S.W. 865; Walwrath v. Crary, 222 S.W. 895; Keppler v. Wells, 238 S.W. 425; Geninazza v. R. U. Leonori Auction & Storage Co., 252 S.W. 417; Louis v. McMahon, 271 S.W. 779, 307 Mo. 552; James v. Bailey, 325 Mo. 1054, 30 S.W.2d 118; Buffum v. F. W. Woolworth Co., 273 S.W. 176; Farrar v. Shuss, 221 Mo.App. 472, 282 S.W. 512; Koewing v. Greene County Building & Loan Assn., 38 S.W.2d 40; Greene v. Owen, 38 S.W.2d 496; State v. Terminal Railroad, 182 Mo. 284, 81 S.W. 395.

Ferguson, C. Sturgis and Hyde, CC., concur.

OPINION

FERGUSON

This is an action for damages for alleged breach of a written lease. Defendant's demurrer to the second amended petition was sustained, the petition dismissed and judgment entered in accordance with Section 796, Revised Statutes 1929, from which order and judgment of the circuit court plaintiff appealed. The amount of damages sued for gives this court jurisdiction of the appeal. The action was brought by A. H. Mack and Fred H. Shofstall as plaintiffs. Thereafter Shofstall died and the action was duly revived in the name of Ida Mae Shofstall, executrix of the will of Fred H. Shofstall, deceased, and as such executrix she was substituted as a party plaintiff instead of Fred H Shofstall.

Looking solely to the second amended petition for the facts it appears that on January 16, 1919, plaintiff A. H. Mack and one J. H. Payne, as lessees and tenants were in possession of a three-story building located on East Twenty-fourth Street in Kansas City, Missouri. The building was known as the "Mack Hotel" and was used by Mack and Payne in carrying on a hotel business. The building was owned by defendant Helen A. Eyssell and Mack and Payne occupied it as her tenants under a written lease for a term of five years from September 1, 1915. On the 16th day of January, 1919, the written lease involved in this action was entered into between defendant Helen A. Eyssell...