Monnig v. Easton Amusement Co.

• Citation: 27 S.W.2d 495
• Decision Date: 06 May 1930
• Docket Number: No. 21086.,21086.
• Parties: MONNIG v. EASTON AMUSEMENT CO. et al.
• Court: Court of Appeal of Missouri (US)

27 S.W.2d 495

MONNIG v. EASTON AMUSEMENT CO. et al.

No. 21086.

St. Louis Court of Appeals. Missouri.

May 6, 1930.

Appeal from St. Louis Circuit Court; Frank Landwehr, Judge.

"Not to be officially published."

Action by E. J. Monnig against the Easton Amusement Company and another. Judgment for defendants, and plaintiff appeals.

Affirmed.

Albert E. Hausman, of St. Louis, for appellant.

Jeffries, Simpson & Plummer, of St. Louis, for respondents.

BENNICK, C.

This is an action for rent in the sum of $3,900, alleged to be due plaintiff from defendants under and by virtue of the provisions of a lease entered into on October 29, 1924, by and between Aubert Photoplay Company, as lessor, and defendant Easton Amusement Company, as lessee. The premises covered by the lease are known as the Aubert Theater and Airdome, in the city of St. Louis. Plaintiff, Monnig, is the assignee of the original lessor, and defendant St. Louis Amusement Company is the present operator of the theater under a contractual relationship of some sort with the lessee.

The petition alleged the status and identity of the parties; the execution of the lease; the fact that defendants were in arrears for rent; and the demand upon them, with their refusal.

Defendants in their answer admitted the occupancy of the premises and the accrual of the rent claimed, but in defense of plaintiff's action relied upon the following provisions of the lease:

"Should replacement of the heating plant now located in said theater building become necessary through ordinary wear and tear, the lessor agrees to replace the same with another or others of at least equal efficiency and capacity to the present heating plant, but this agreement shall not be construed to require the lessor to replace fire grates which may burn out, nor to make any replacements occasioned by the act or negligence of the lessee, nor to make any minor repairs.

"Should the lessor fail or neglect to make any repairs to the demised premises by it to be made under the provisions hereof, then the lessee may at its option make such repairs, and the lessor shall reimburse it for all reasonable expenses thereby incurred."

Defendants then alleged that during the year 1927, the heating plant in the theater became old, worn, and wholly unfit for use in heating the theater; that on account of the ordinary wear and tear thereof it became necessary to replace the plant with another of at least equal efficiency and capacity; that demand was made on the lessor to replace the heating plant in accordance with the terms of the lease; that plaintiff refused to replace the plant, or to pay any costs and expenses incident thereo; that defendants were required to replace the old heating plant with a new one at a cost of $4,020; that, upon plaintiff's failure to reimburse them for said sum, defendants, under and by virtue of the lease, applied the rentals thereafter falling due to the payment of the cost of installing the new plant; and that by reason thereof there was no default on defendants' part in the payment of rent to plaintiff under said lease.

The reply filed by plaintiff was a general denial.

A jury was waived, and the cause heard before the court alone, resulting in the entry of a judgment for defendants. A motion for a new trial was then filed and overruled, following which plaintiff has duly brought the case to this court on his appeal.

The old heating plant was a hot-air system, located in a brick room built adjacent to the theater building proper, and consisting of two units or cast-iron furnaces, both inclosed in a single metal box or inclosure some 10 feet long, 6 feet wide, and 6½ or 7 feet high. There was a fan in one side of the box, which drew in the air from the theater, forced it over the heaters, and then expelled it through a single pipe, 12 feet in length, which led to a grill underneath the stage, but situated about 10 feet above the floor, the grill itself being 10 feet wide, and 3½ feet high. A cold-air return or intake pipe of approximately the same dimensions as the grill was located immediately underneath it at the floor. Each fire box was 30 inches in diameter, and the fuel used was coal or coke.

The theater building was 130 feet long and 65 feet wide, with a sloping floor which was 8 or 10 feet higher...