Moore v. Guardian Trust Co.

• Decision Date: 18 February 1903
• Citation: 73 S.W. 143,173 Mo. 218
• Parties: MOORE et al. v. GUARDIAN TRUST CO. et al.
• Court: Missouri Supreme Court

73 S.W. 143

173 Mo. 218

MOORE et al. v. GUARDIAN TRUST CO. et al.

Supreme Court of Missouri, Division No. 1.

February 18, 1903.

LANDLORD AND TENANT — ASSIGNMENTS AND SUBLEASES — RIGHT TO MAKE — REFUSAL TO PERMIT — EFFECT — RELEASE OF TENANT FROM LIABILITY — INDEMNITY FUND — PAYMENT INTO COURT — INTERPLEADER.

1. A board of trade, having determined to change its location, rented respondents' building for one year. The lease did not specify for what purpose the building was to be used, and contained no express covenant requiring the board to move into it. It did require respondents to change the four rooms on the ground floor into a trading room, which respondents did. The lease expressly granted the board power to sublet any portion of the premises without any restriction whatever. Thereafter, and before the board had taken possession, the owner of the building in which the board had been located made it a more favorable offer if it would remain there, agreeing to take the lease of respondents' building off its hands. Respondents immediately procured an injunction preventing the board from assigning the lease or subletting any part of the building to it. The board remained in the old building, and respondents' building remained vacant the entire year. Held, that in procuring the injunction, and in refusing to permit the board to sublet the building, respondents breached the lease and must stand the loss.

2. The original landlord each month paid to the board of trade an amount equal to the monthly rent of respondents' building, expressly stating that the payment was made to protect the board against loss and not for the benefit of respondents. Held to be a mere indemnity fund, and, the board not being liable to respondents, it still remained the landlord's property, and could not be paid over to respondents.

3. The fact that the board paid the fund into court, and compelled the parties to interplead for it, could not give respondents any right to the fund.

4. The mere fact that the board, in leasing respondents' building, intended to move into it and establish its trading room there, and to sublet to its members, and that respondents expected this would be done, created no right in respondents to compel the board to do so, in the absence of an express provision in the lease.

5. Rev. St. 1899, § 4107, prohibiting a tenant for a term not exceeding two years from assigning his lease without the written consent of the landlord, does not prohibit him from subletting.

Appeal from Circuit Court, Jackson County; Edw. P. Gates, Judge.

Bill of interpleader filed by John W. Moore and others to compel the Guardian Trust Company, and George W. Jones and another, comprising the firm of Jones & Oglebay, to interplead for a certain fund. Decree awarding the fund to Jones & Oglebay, and the Trust Company appeals. Reversed.

This is an interpleader in equity for $16,467.51. The plaintiffs compose the board of directors of the Board of Trade in Kansas City, a voluntary organization. The appellant is a trust company, and was formerly named the Missouri, Kansas & Texas Trust Company, and will be referred to herein as the "Trust Company." The respondents are George W. Jones and James H. Oglebay, comprising the firm of Jones & Oglebay. The purpose of the suit is to pay the fund into court, and to compel the Trust Company and Jones & Oglebay to interplead for it. They interpleaded for the fund, and on June 30, 1900, by consent of parties, the plaintiffs paid the money — less a fee allowed their attorneys, and the costs to that date — into court, and thereupon the court decreed the fund to Jones & Oglebay, and the Trust Company appealed.

The controversy is this: Prior to May 31, 1898, the Board of Trade occupied a part of the Exchange Building, on 8th and Wyandotte streets, of which Richard Gentry was the owner. Their relations became unpleasant, and the Board of Trade, and its members, as individuals, who had offices in the building, determined to move. The defendants Jones & Oglebay owned a building on Missouri avenue and Walnut street, called Temple Block, and the Board of Trade, on May 31, 1898, leased the building from Jones & Oglebay for one year from July 1, 1898, for a rental of $16,000, with a privilege of a renewal for five years. The lessors were to furnish, free, heat, water, light, and elevator and janitor service, and to retain the offices then occupied by them. The lessors were to change "the four storerooms on the first floor into one room, in complete order for a trading room for the Board of Trade, to the satisfaction of the building committee of the second party, the portion of the ceiling over the trading hall corresponding with the open space above, the main entrance from the hall to the trading room to be between the two elevators." It was further stipulated that "the second parties shall have the privilege of underletting any portion of said premises during said term, and at its own expense, causing such changes, by way of partition or otherwise, as it may deem proper, under the supervision of one of the first parties." The lease expressed to be "upon condition, however, that no personal liability of any kind is assumed or created upon the part of any officer, director, or individual member of the said Board of Trade." Pursuant to the lease, the lessors notified all the tenants then in Temple Block to vacate on July 1, 1898, and made the changes on the first floor above provided for. The Board of Trade appointed a committee to fix the rental of the rooms in the building (Temple Block) other than those intended to be used by it, and they were all assigned by lot to the members.

The Trust Company, in June, 1898, acquired title to the Exchange Building from its former owner, Gentry, and at once set about to prevent the Board of Trade and its members from leaving the Exchange Building, and accordingly, on June 22, 1898, the Trust Company made a written proposition to the Board of Trade that, if it would remain in the Exchange Building for a term of five years, the Trust Company would assume the Jones & Oglebay lease, and, in addition, would not only charge no rent for the use of the trading hall or for the rooms used by the secretary of the Board of Trade, but would pay the Board of Trade a bonus of $500 a month. Later on the same day, the Trust Company further, in order to make sure that the Trust Company would meet the assumption of the $16,000 rental of the Temple Block, proposed to allow the Board of Trade to collect the monthly rents from the tenants in the Temple Block and keep them until the end of the month, and, if the Trust Company did not pay the rent on the Temple Block within 24 hours after it was due, to allow the Board of Trade to apply the rents so collected to the payment of the rent due for said Temple Block.

Afterwards on June 23, 1898, the Trust Company further wrote to the Board of Trade saying the proposition did not contemplate that all the members then occupying rooms in the Exchange Building should sign leases for five years, and further saying that the lease contemplated was to be without personal liability of the officers or members of the Board of Trade, and agreeing to rely upon the honor of the Board of Trade to keep its promises, "as Messrs. Jones & Oglebay relied upon to get their $16,000 for a year, which will most certainly be paid by us and thus relieve the Board of Trade and all its members from any obligation of honor or otherwise to the owners of the Temple Block." This proposition was submitted to the member of the Board of Trade on June 23, 1898, and was accepted by a majority vote of the members.

Thereupon, on June 24, 1898, the Trust Company wrote Jones & Oglebay as follows:

"Gentlemen: The undersigned having purchased the Exchange Building recently made a proposition to the Board of Trade for rental of portions of said building, and in said proposition agreed to assume the lease which you had made to the Board of Trade for the Temple Block for one year from July 1st, 1898. We would like to meet you with a view of ascertaining for what sum we can secure a cancellation of this lease, releasing the lessees from any liability to pay rent thereon. Or in the event that you would not care to negotiate or consider such a proposition, we will, of course, under our promise to the Board of Trade, be obliged to pay the rent and sub-let the Temple Block, and get whatever we can out of it.

"If you will kindly indicate a place and time where and when we can meet you and talk over this matter, we would very much like to have you do so.

"Missouri, Kansas & Texas Trust Company,

                           "By A. E. Stilwell, President."
                

To this letter Jones & Oglebay never made any reply. The attorney of the Board of Trade then prepared a lease from the Trust Company to the Board of Trade, which was executed by the Trust Company, but while said attorney was reading it to the officers of the Board of Trade, and before it was executed by them, Jones & Oglebay, on June 28, 1898, got out an injunction against the Board of Trade, restraining it from assigning or transferring or subletting Temple Block, or any portion thereof, except the basement, to the Trust Company, or to any person other than a member of the Board of Trade, or to one engaged in the grain or like business; and also restraining the board from "making any order, passing any resolution, or making any contract which would prevent or tend to prevent the said association (or members thereof) from locating its trading hall and officers in and otherwise using and occupying plaintiff's said building" (Temple Block). The lease which the Board of Trade was restrained from executing contained the provisions covered by the propositions of the Trust Company. Those that related to and bound the Trust Company to assume the lease of Temple Block, and which gave the Trust Company any rights under that lease, were as follows:

"4. First part...