McInturf v. Redell Manufacturing & Supply Company
| Decision Date | 04 December 1911 |
| Citation | 142 S.W. 451,160 Mo.App. 672 |
| Parties | ANDY McINTURF, Respondent, v. REDELL MANUFACTURING & SUPPLY COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Motion for Rehearing Overruled, January 8, 1912.
Appeal from Jasper Circuit Court.--Hon. D. E. Blair, Judge.
AFFIRMED.
Judgment affirmed.
M. R Lively for appellant.
(1) The plaintiff cannot plead one cause of action and recover on another. Buffington v. Railroad, 64 Mo. 246; Milling Co. v. Transit Co., 122 Mo. 258; Obert v. Dunn, 140 Mo. 476. (2) Where the declaration is on a special contract, the contract must be proved as set forth or the plaintiff cannot recover. 1 Wait's Act. and Def., p 399, sec. 2; Lanitz v. King, 93 Mo. 513. (3) The contract pleaded here is the basis of the petition and is not merely a matter of inducement, and the one offered in evidence is not the one pleaded and the variance is material and plaintiff cannot recover. Koons v. Car Co., 203 Mo. 227. (4) Where plaintiff sues on a special contract, he must recover on such contract, or he cannot recover at all. He cannot recover on a quantum meruit. Koons v. Car Co., 203 Mo. 227; Taussig v. Mill & Land Co., 124 Mo.App. 209; Davis v. Drew, 132 Mo.App. 503; Henry County v. Bank, 108 Mo. 209. (5) The lease in evidence implies and carries with it the delivery of the peaceable and quiet possession of the premises under the implied covenants in said lease, "He who lets agrees to give possession and not merely the chance of a law suit." 5 Bingham, 440; Hughes v. Hood, 50 Mo. 350; Reiger v. Welles, 110 Mo.App. 173; Squires v. Brewing Co., 90 Mo.App. 469. (6) There is no ambiguity in this clause of the lease; it required no notice to put it into force and effect; it became self-operating; the intention of both parties regarding the purpose of demise must wield potent influence in interpreting any clause in it. Realty Co. v. Brewing Association, 133 Mo.App. 267.
H. W. Currey and Geo. V. Farris for respondent.
(1) The cause of action in this case is the rent due for seven months use and occupation of plaintiff's building, and the written lease is merely evidence of the contract and hence there was no variance; however, in this case the defendant filed no affidavit of surprise, as required by the statutes, so that even if there was a variance it was waived. Saunders Brick Co. v. Real Estate Co., 86 Mo.App. 169; Fisher Real Estate Co. v. Realty Co., 159 Mo. 562; Chonquette v. Railroad, 152 Mo. 257; White v. Ins. Co., 97 Mo.App. 590. (2) Defendants by accepting a written lease and placing their fixtures in the building and refusing to surrender them became liable for the stipulated rent. Taylor on Landlord and Tenant (9 Ed.), sec. 15; Hardy v. Winter, 38 Mo. 106. (3) Defendant's agent in charge of said building, having by his own wrong caused the revocation of a dramshop license for that location, and defendant failing to show that any other effort was ever made to obtain another license the defendant cannot be relieved from the payment of the rent as agreed on. Realty Co. v. Association, 133 Mo.App. 261; Squires v. Brewing Co., 90 Mo.App. 462. (4) The court committed no error in refusing defendant's declarations of law, as under the general denial the defendant could not make an affirmative defense. Alt v. Hobbs, 62 Mo.App. 669; Commission Co. v. Vanstone, 62 Mo.App. 241; Bank v. Stewart, 136 Mo.App. 24. (5) The lessee in this case having expressly covenanted to pay the rent would be liable even if he had assigned the same and the lessor had consented to the assignment and accepted rent of the assignee. Whetstone v. McCartney, 32 Mo.App. 430; Jones v. Barnes, 45 Mo.App. 590; Ward v. Krull, 49 Mo.App. 447.
This is an action to recover rent alleged to be due under a written lease. The respondent at the time the lease was executed, was the owner of a building in Jasper county, and the appellant was a wholesale liquor dealer, and one Tony Caylor was conducting a saloon in the building. The appellant had loaned Caylor the money to pay for his license, and also owned the dramshop fixtures. That on the 10th day of March, 1909, the parties executed a written lease, by the terms of which the defendant rented the building for a period of one year from the first day of April, 1909, at a rental of sixty dollars per month, was admitted by both parties. The only difference between them, was respondent claimed there was but one copy of the lease and that it was signed by both parties, while the appellant claimed there were two copies, both of which were signed by the respondent, but only one signed by the appellant. We deem this difference wholly immaterial, and this point will not be further noticed.
After the execution of the lease, Caylor with others continued to operate the saloon until sometime during the summer of 1909. A petition was filed with the county court, charging that Caylor was conducting a disorderly house, and was violating all the laws governing dramshops. Upon this petition a hearing was had resulting in an order revoking Caylor's license to keep the dramshop.
The lease contained the following clause: "It is agreed and understood that in the event of local option, prohibition or any other cause whatever it becomes impossible to secure a dramshop license for this location, then this lease shall become null and void." The rent was paid up to the time Caylor's license was revoked, but nothing was paid thereafter. In February, 1910, local option was adopted, and this suit is to recover the rent from the time the license was revoked up to the time local option was adopted. The answer was a general denial. Plaintiff obtained a judgment and defendant appealed.
It is appellant's first contention that at the time the lease was executed, the premises were in the possession of Caylor, who, afterwards, remained in possession as the tenant of respondent, and appellant was unable to obtain possession of the building, and therefore, the lease never went into effect.
Mr Painter was the representative of appellant in procuring the lease, and he testified that his firm owned the fixtures and loaned Caylor the money to procure the the license, and...
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