Morriss v. Finkelstein

• Decision Date: 19 December 1940
• Docket Number: No. 25541.,25541.
• Citation: 145 S.W.2d 439
• Parties: MORRISS et al. v. FINKELSTEIN et al.
• Court: Missouri Court of Appeals

145 S.W.2d 439

MORRISS et al. v. FINKELSTEIN et al.

No. 25541.

St. Louis Court of Appeals. Missouri.

December 19, 1940.

Rehearing Denied January 4, 1941.

Appeal from St. Louis Circuit Court; Robert J. Kirkwood, Judge.

"Not to be reported in State Reports."

Action for rent by A. W. Morriss, Jr., and others, trustees for the Nineteenth Street Investment Trust, against Meyer Finkelstein and another. From judgment for defendants, the plaintiffs appeal.

Reversed and remanded.

Samuel I. Sievers, Stephen S. Freund, and Franklin E. Reagan, all of St. Louis, for appellants.

Thompson, Mitchell, Thompson & Young, Samuel White, Richmond C. Coburn, and Thomas L. Croft, all of St. Louis, for respondents.

HUGHES, Presiding Judge.

This action for rent was instituted in the Circuit Court of the City of St. Louis on August 24, 1931. On trial in that Court a demurrer was erroneously sustained to plaintiffs' evidence, and on appeal to this Court the judgment of the Circuit Court was reversed and the cause remanded. Reference is made for a statement of the issues framed by the pleadings contained in the opinion of this Court. See Morriss v. Finkelstein, 127 S.W.2d 46.

Pursuant to the lease contract which was dated June 5, 1925, the store room which was the subject of the lease was turned over to the defendants by plaintiff, A. W. Morriss, Jr., delivering the keys to defendant Finkelstein in April 1926, and payment of rent in accordance with the lease contract, at the rate of $275 a month, was made thereafter by Finkelstein, or by subtenants in his name. On July 2, 1925, the lease was assigned to plaintiffs. All matters with reference to the leased premises and the payment of the rent were thereafter transacted by A. W. Morriss, Jr., on the part of the lessor, and Meyer Finkelstein, on the part of the lessees. Such rent was paid to the First National Bank in Granite City, Illinois (and its successor), which bank had been designated as the depository for the rent. The bank officers had no knowledge as to whom the lessees were and the deposits for rent payments were entered as having been made by Finkelstein merely because he sent them to the bank. In the fall of 1928 the rents became delinquent, and Finkelstein sought from Morriss a reduction of the rents, which was agreed to by Morriss, and on December 6, 1928 the following letter was delivered to and accepted by Finkelstein:

                              "Granite City, Illinois
                               December 6, 1928
                Mr. Meyer Finkelstein and
                Levitt Millinery Company, a Corporation
                    St. Louis, Missouri
                

Dear Sirs:

In reference to your recent request, in which you seek a reduction in the rent on the corner store room in the Ralph Building, 19th and Niedringhaus Avenue, Granite City, Illinois, leased by you under the terms of a certain Indenture of Lease entered into on the 5th day of June, 1925, this is to advise you that we are willing to make certain concessions in the rent, but only upon the following express terms and conditions:

1. Beginning December 1, 1928 we are willing to accept the monthly rental of $175.00 for the store room providing that the same becomes occupied on or before February 1, 1929 in the conduct of a millinery and ladies' ready to wear business and accessories, and the said rental of $175.00 to continue so long as the store room is occupied as such.

2. In the event the store room is not occupied on or before February 1, 1929 as above indicated, the original monthly rental of $275.00 as defined by the terms of the written lease above indicated, is to be in full force and effect.

3. The above reduction in rent is to only continue so long as said store room is occupied in the conduct of a millinery and ladies' ready to wear business, actually operating and actively engaged. Our purpose, of course, being to have the store room continuously occupied as contemplated in the lease.

The acceptance by us of the reduction of rent as above indicated, shall not be construed as a waiver or a modification of any of the lessor's rights given under the terms of said written lease or a waiver or modification of any of the terms and conditions of said written lease as therein expressed, except that a reduction in rent is available to you expressly subject to the conditions set forth in Paragraphs 1, 2 and 3.

If you accept these conditions they are to stand in lieu of conflicting conditions of said Indenture of Lease, but which said Indenture is, however, in all other respects to be and remain in full force and effect as if this proposition had never been submitted.

                         Very truly yours
                            19th Street Investment Trust
                              By A. W. Morriss, Jr.,
                                 N. Fleishman,
                                 Fred G. Leuders."
                

The delinquent rent was paid by Finkelstein, and thereafter rent at the reduced rate of $175 a month was paid for the year 1929 and for the first seven months of 1930. No rent has since been paid. The rents now sought to be recovered by this suit are for the term of thirteen months from August 1, 1930 to August 31, 1931 at the rental of $175 a month, less a payment of $149.54 made by Finkelstein through his attorneys on February 21, 1931, making the balance claimed $2,125.46. Other facts necessary to a determination will be mentioned as we proceed.

Defendant Levitt Millinery Company now claims that from the beginning it was merely a surety for Meyer Finkelstein. This claim is refuted by its answer, wherein it states that the contract was entered into and that it continued in effect until December 6, 1928. Certainly an arrangement, if any there was, between Levitt and Finkelstein, whereby as between them one was principal and the other surety, could in nowise bind or affect the plaintiffs, unless notice of such relationship was brought home to plaintiffs at or before the execution of the lease contract, and there is no pretense that there was any such understanding. The pleadings as well as the lease contract itself and all of the evidence clearly shows that the Levitt Millinery Company and Finkelstein were cotenants. It cannot avail the defendant Levitt Company to claim that it was never in actual possession of the rented premises. Finkelstein took possession under the lease contract and his possession would be for both cotenants in the absence of any showing to the contrary.

It is settled law and conceded by counsel in this case that the doctrine of alteration of instruments as such has no application where there is no physical mutilation or alteration of the instrument itself. Hence the letter of December 6, 1928, could not be an alteration of the lease contract.

It is also well-settled law that the doctrine of novation has no application unless the creditor, original debtor and new debtor all agree contemporaneously that the new debtor is to be substituted for the original debtor, who is discharged. There is absolutely no proof of any such arrangement in this case. Even if there was proof novation is not plead, as it must be. Robertson v. Vandalia Trust Co., 228 Mo. App. 1172, 66 S.W.2d 193.

Hence, when we eliminate those questions which have been brought into the case by argument and brief, but which really are not involved in the pleadings or by the evidence, the real issue is narrowed and simplified to this: Did the reduction of rent in accordance with the letter of December 6, 1928 constitute the making of a new contract and a surrender...