National Bellas Hess v. Kalis
| Decision Date | 09 October 1951 |
| Docket Number | No. 14388.,14388. |
| Citation | 191 F.2d 739 |
| Parties | NATIONAL BELLAS HESS, Inc. v. KALIS. |
| Court | U.S. Court of Appeals — Eighth Circuit |
John W. Oliver, Kansas City, Mo. (Stanley Garrity and Scott R. Timmons, Kansas City, Mo., were with him on the brief), for appellant.
Isadore Rich, Kansas City, Mo. (Myer M. Rich and Rich & Rich, Kansas City, Mo., were with him on the brief), for appellee.
Before SANBORN, THOMAS, and COLLET, Circuit Judges.
This appeal challenges a judgment of the District Court based upon its conclusion that a lease of real estate in Kansas City, Missouri, "for a term commencing October 1, 1943, and ending sixty (60) days after the signing of the treaty of peace upon the close of the war with Germany and/or with Japan, whichever treaty of peace is the latest * * *," did not, under Missouri law, create a valid tenancy for years, and that the tenancy after October 1, 1944, the date to which rent was payable and had been paid in advance, was a tenancy at will.
The action was brought on July 11, 1950, by the owner of the premises (appellee) for a declaratory judgment that the lease was invalid. The tenant (appellant) asserted in its answer that the lease was valid and created a tenancy for years. Jurisdiction was based upon diversity of citizenship, amount involved, and the existence of a justiciable controversy.
The District Court determined that since October 1, 1944, the duration of the term of the lease has been uncertain as a matter of law, and that, for that reason, the lease has been invalid, null and void since that date. Judgment was entered accordingly and the tenant was declared to be occupying the leased premises as a tenant at will. This appeal followed.
Obviously, the lease in suit by its terms was from the beginning, and is now, of uncertain duration; but the tenant contends that the event which marks the termination of the lease is one which is sometime certain to occur and that the fact that no one can foretell when it will occur does not invalidate the lease, since the ultimate happening of the event will make certain that which was previously uncertain.
The District Court concluded that "The signing of the Treaties of Peace provided for in the lease in issue is not such an event as, under the law, is certain to occur." We shall assume, however, for the purposes of this opinion, that it is a certainty that treaties of peace with both Japan and Germany will ultimately be signed.
It is conceded that no case involving the validity of a lease such as that in suit has been decided by a Missouri court. No statute of that State is involved. Apparently, the Supreme Court of Missouri has followed the old common law rule that, in order to create a valid tenancy for years, the duration of the term must be specified with certainty in the lease or at least be ascertainable from its provisions, and that an event certain to occur but uncertain as to the time of its occurrence, such as death, may not be used to mark the termination of the term.
The leading case in Missouri on the subject is Idalia Realty & Development Co. v. Norman, 232 Mo. 663, 135 S.W. 47, 48, 34 L.R.A.,N.S., 1069. It involved a lease of lands which provided that it was to run "until mill is removed." The Supreme Court of Missouri ruled, in substance, that the lease did not create a tenancy for years, because it violated the common law rule requiring that a definite term be fixed. As we read the decision, it is authority for the rule that a lease providing for an uncertain period of duration is not a lease for years.
This view is borne out by State ex rel. Rumbold v. Gordon, 238 Mo. 168, 142 S.W. 315, 316, 317, Ann.Cas.1913A, 312, in which the Supreme Court of Missouri, in considering the meaning of the word "term", said: ...
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Village of Brooten v. Cudahy Packing Company
...law is not whether the trial court has reached a correct conclusion but whether it has reached a permissible one, National Bellas Hess, Inc. v. Kalis, 8 Cir., 191 F.2d 739, 741, certiorari denied 342 U.S. 933, 72 S.Ct. 377, 96 L.Ed. 695; and the appellant's burden of showing misconception o......
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...As said in a number of the cases, the Court of Appeals should accept the considered view of the District Judge. National Bellas Hess, Inc. v. Kalis, 8 Cir., 191 F.2d 739, 741; John Hancock Mut. Life Ins. Co. of Boston, Mass. v. Munn, 8 Cir., 188 F.2d 1, 4; Elizabeth Hospital, Inc. v. Richar......
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Illinois Cent. R. Co. v. Michigan Cent. R. Co.
...113 S.W. 229, cited and relied on by counsel for defendant, we would have a different case to deal with.' In National Bellas Hess, Inc., v. Kalis, 8 Cir., 1951, 191 F.2d 739, the court, applying Missouri law, followed Idalia Realty & Development Co. v. Norman, supra. The lease was 'for a te......
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Kansas City Operating Corporation v. Durwood
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