Minor v. Woodward

• Decision Date: 04 May 1914
• Citation: Minor v. Woodward, 166 S.W. 855, 179 Mo.App. 333 (Kan. App. 1914)
• Parties: LAURA B. MINOR, Respondent, v. O. D. WOODWARD and WILLIS WOOD, Appellants
• Court: Kansas Court of Appeals

166 S.W. 855

179 Mo.App. 333

LAURA B. MINOR, Respondent, v. O. D. WOODWARD and WILLIS WOOD, Appellants

Court of Appeals of Missouri, Kansas City

May 4, 1914

Appeal from Jackson Circuit Court.--Hon. W. O. Thomas, Judge.

AFFIRMED.

Judgment affirmed.

C. A Loomis for appellants.

Scarritt Scarritt, Jones & Miller for respondent.

TRIMBLE J. Ellison, P. J., concurs.Johnson, J., dissents.

OPINION

TRIMBLE J.

Suit upon a bond in the sum of $ 2500 executed by defendants to plaintiff on May 3, 1906.In the circuit courtplaintiff obtained judgment for the full amount of said bond, and defendants appealed.

The bond and the reason for defendants giving it originated in this wise: In November, 1904, the plaintiff, Mrs. Laura B Minor, was preparing to erect a three-story business building, with basement thereunder, at the south-east corner of Tenth and McGee streets in Kansas City, Missouri.The building was to face McGee street (which ran north and south) and was to run back east along the south side of Tenth street.The front entrance and first floor were to be on a level with the grade of McGee street.A corporation, known as the I. W. Dumm Publishing Company and certain individuals connected therewith, Mr. Dumm, Mr. Clark and Mr. Horn, were engaged at that time in publishing a newspaper, and desired to rent suitable quarters for the company, and, therefore, proposed to Mrs. Minor that she lease the building, proposed to be erected, to it.The nature of its business, however, did not require the ground floor and entrance to be on the grade of McGee street and did require that said ground floor should be three feet above said grade, as that would give more height and light and air to the basement.Mrs. Minor did not care to erect a building with its ground floor so much above the grade of the principal street on which it was located, thereby making the building suitable for a particular business only, unless she was sure of a long time rental well secured, or would be reimbursed for the expense necessary in changing the ground floor and front entrance back to the grade of McGee street.The publishing company and the men named as connected therewith agreed to these terms, and thereupon on November 12, 1904, a lease was executed by Mrs. Minor, as first party, to the I. W. Dumm Publishing Company, and said individuals, as second parties, for a term beginning April 1, 1905, and ending March 31, 1910.She agreed therein to erect and complete the building as soon as practicable and to raise the ground floor and change the plans of the outside walls and front so that said floor would be three feet above the normal grade.Permission was given to sublet said building.And the second parties, agreed that "if this lease is not renewed at the end of the first term hereof as hereinbefore provided, or in case this lease is terminated or possession of the leased premises taken by the party of the first part or her representatives for any cause, except total destruction by fire, prior to April 1, 1910, then second parties will pay the first party or her legal representatives the reasonable cost of placing the first floor of said building upon the normal or street grade thereof, including the cost of changing the outside walls and front of said building, so as to make the same complete and workmanlike and to conform to the change in the elevation of the floor; provided, however, that if the first party prior to or at the time of the surrender of the possession of said premises by second parties, shall lease said premises to a third party who will not require the elevation of said first floor to be lowered to the normal or street grade at an annual rental satisfactory to first party, then the first party will waive the claim for making such changes; provided, that in no event shall the cost of making such changes to be charged against second parties exceed the estimate now made by said architects, to-wit, $ 2500."

The lease further provided that, "the party of the first part shall have until the termination of this lease a lien upon all the erections, improvements, machinery and fixtures of second parties that may during the term of this lease be placed on or in said land and building, to secure the payment of the rent and the performance of the stipulation and agreement herein contained."

The building was duly erected and the Publishing Company entered and took possession under its lease and the printing presses and other machinery and personal property placed therein by it became subject to Mrs. Minor's lien for the rent and for the performance of the other terms of the lease.

Just how long the Publishing Company continued therein and to pay rent is not known.Plaintiff attempted to prove that it continued in business only about a year and a half and that then Mr. Woodward, one of the defendants, came into control of the business and began paying the rent on the building.Defendants objected to this as being immaterial, and their objection was sustained.Plaintiff then offered to show that, at the time the bond herein sued on was executed by the defendants to plaintiff, Mr. Woodward was in charge of the business, paid the rent on the building and that the bond in suit was accepted at his request.Defendants objected to this and were again sustained.

Notwithstanding these adverse rulings of the court, there is enough in the record to show that Dumm, the president of the company and Horn left the country and that in some way, either through financial embarrassment or otherwise, the Publishing Company fell into the hands of Mr. Woodward and that thereafter he, Woodward, paid the rent.The defendants are in no position to assert or complain that the evidence is not definite enough to show a formal legal transfer, sufficient to pass title, of the assets of the Publishing Company, or of the lease to the defendants and their associates, because they, by objecting to such showing, succeeded in getting the trial court to refuse it admission to the record.But, with the explicit evidence on these points excluded, there is still enough in the record, coupled with the bond itself, from which the conclusion can be reasonably drawn that the defendants were giving the bond for themselves and in their own interest and not as mere sureties for the Publishing Company.

At any rate on May 3, 1903, just 1 year, 5 months and 19 days after the execution of the lease the bond in question was executed.At this time Mrs. Minor held the lease on the building and a lien on an "Optimus" printing press therein for the performance of all the terms of the lease.The defendants were desirous of selling this printing press and, to get it released from Mrs. Minor's lien, they agreed to give her the bond in question.The terms of the bond are as follows:

"We, the undersigned, O. D. Woodward and Willis Wood, of Kansas City, Missouri, do hereby acknowledge ourselves indebted unto Laura B. Minor in the sum of Two Thousand Five Hundred Dollars ($ 2500), for the payment of which well and truly to be made, we hereby bind ourselves, our successors, executors, administrators and assigns."

The condition of this bond is such that whereas . . .(Here follows a statement that the I. W. Dumm Publishing Company leased the property on November 12, 1904) . . . and

Whereas, it is provided in that lease . . .(Here follows a statement that the front and outside walls were to be changed and the floor raised three feet above the street grade) . . . and

Whereas, it is further provided in said lease that "if this lease is not renewed at the end of the first term thereof as hereinbefore provided, or in case this lease is terminated or possession of the leased premises taken by the party of the first part or her representatives for any cause except total destruction by fire, prior to April 1, 1910, then second parties will pay first party, or her legal representatives, the reasonable cost of placing the first floor of said building upon the normal or street grade thereof, including the cost of changing the outside walls and front of said building so as to make the same complete and workmanlike and to conform to the change in the elevation of the floor; and,

Whereas, said I. W. Dumm Publishing Company in order to secure the performance of the said provisions of the said lease did mortgage or convey unto said Laura B. Minor one "Optimus" printing press, manufactured for it by the Barnhardt Bros. & Spindler Co., of Chicago, and which was placed in the building on the property, aforesaid; and,

Whereas, the first parties desire to have said mortgage released so that said press may be sold and conveyed free from the lien of said mortgage; and,

Whereas, said Laura B. Minor has consented to release and satisfy said mortgage in consideration of this bond;

Now, therefore, if the said first party shall faithfully perform and keep the provisions of said lease in respect to the matters hereinbefore set forth and will save the said Laura B. Minor entirely harmless by reason of any breach of such conditions of said lease then this undertaking shall be null and void; otherwise to remain in full force and effect.

In witness whereof, we have hereunto set our hands and seals this 3rd day of May, 1906.

O. D. WOODWARD, (Seal)

WILLIS WOOD, (Seal).

The Publishing Company is not a party to the bond.And it nowhere says it is given as surety for said Company.Upon the face of the bond the defendants contract as principals,...