Nelson v. Grice, 51883

• Decision Date: 09 January 1967
• Docket Number: No. 51883,No. 2,51883,2
• Parties: Ralph A. NELSON, by Marjorie Nelson, Guardian, Respondent, v. Frankie GRICE and Frances Grice, Appellants
• Court: Missouri Supreme Court

Page 117

411 S.W.2d 117

Ralph A. NELSON, by Marjorie Nelson, Guardian, Respondent, v. Frankie GRICE and Frances Grice, Appellants.

No. 51883.

Supreme Court of Missouri, Division No. 2.

Jan. 9, 1967.

Motion for Rehearing or to Transfer to Court En Banc Denied

Feb. 13, 1967.

Neale, Newman, Bradshaw, Freeman & Neale, Flavius B. Freeman, Warren S. Stafford, Thom G. Field, Springfield, for respondent.

Wear, Wear & Coffman, William A. Wear, Paul R. Coffman, Springfield, for defendants-appellants.

STOCKARD, Commissioner.

Frankie Grice and Frances Grice (hereafter referred to as the 'Grice Sisters' or 'defendants') are the owners of a tract of land approximately 330 feet square located on the northwest corner of Glenstone and Chestnut Street Trafficway in the City of Springfield. In August 1963, the Grice Sisters leased to Ralph A. Nelson part or all of this property (this being one of the disputed issues) to be used for the operation of a grocery store for an original term of thirty-one months ending on March 1, 1966. In the lease agreement the property was described as follows:

'A certain store building known as 723 Glenstone and located at the Northeast corner, consisting of approximately 4,354 square feet of floor space together with the area adjacent to the building which is also covered by this lease and which Lessee and his employees and customers may use for ingress and egress and for parking facilities (the legal description of which property shall be furnished by Lessors.)'

The rent for the 'building and premises' was stated to be two percent 'of the gross sales of Lessor (sic) resulting from the operation of a grocery and market at the leased premises.'

Mr. Nelson operated a grocery store in the building on the premises subsequent to August 1963, and was assisted by his son James who was then seventeen years of age. According to James, his father took care of the 'entire lot' and kept the grass cut and picked up paper. The store building was located on the north side, and most of the building was in the northeast quarter of the lot. The eastern portion of the lot and most of the area south of the building was surfaced for use as a parking area. It appears that there was a driveway immediately west of a portion of the building. The area west of the driveway and the parking area was not surfaced but was covered with grass and trees. In the southwest quarter a surfaced driveway extended from Chestnut Street Trafficway northeastward to the parking area. In December of 1963 or January of 1964, some conversations took place between Mr. Nelson and the Grice sisters concerning remodeling or rebuilding, but because of the incapacity of Mr. Nelson at time of trial, subsequently mentioned, and the invoking by plaintiff of § 491.010 RSMo 1959, V.A.M.S., commonly called the 'dead man's statute,' the record, as may be expected in such circumstances, is not as complete as it otherwise would be.

Mrs. Janie Price, who was employed by Mr. Nelson as a checker in the grocery store, testified that in the 'winter months' the Grice Sisters came to the store, and Mr. Nelson 'mentioned wanting it (the building) remodeled because of it being run down in places, and the Grice Sisters said they would rather build a new one than spend money on that one because it was in such bad shape.' During the conversation, according to Mrs. Price, Mr. Nelson 'mentioned that the new store would be bigger' than the existing building, and the Grice Sisters, 'agreed' that it would, and they also said that they would let Mr. Nelson draw up the plans for the building. Mrs. Price then testified that Mr. Nelson said: 'Then, the rent will be the same as this one?' and that the Grice Sisters said 'yes, it would be the same as that one, that he had a good business there already and that he would make more money in a larger store, with a bigger volume.' She further testified that Mr. Nelson said 'that he would like that (to be put) into a contract before he would move into a new store,' and the Grice Sisters said 'it would have to be a new contract because it would be a different building,' and they told him 'not to worry about it, they would straighten it out later.' Mr. Nelson expressed some concern about his financial ability to stock the larger store, and the Grice Sisters told him that they were 'sure he could get the money somewhere, or they would help him.'

Work was started on the construction of a new building on April 16, 1964, and the building was completed and ready for occupancy on July 1, 1964. This new building was located in the southwest quarter of the lot owned by the Grice Sisters, and was on that portion which previously had been covered with grass and trees and which had not been used for parking. During the construction Mr. Nelson conferred with the contractor and made suggestions concerning the new building. The contractor testified that the Grice Sisters told him that the new building was to be for the use of Mr. Nelson, and he heard them say 'the more he makes the more we make.' At the trial it was stipulated that the construction of this building was commenced on the authority of the Grice Sisters and that it was contemplated that it would be for the use of Mr. Nelson to operate a grocery store.

In the spring of 1964, after the construction of the building was 'pretty well along,' according to Mrs. Price, the Grice Sisters went to Mr. Nelson at his store and handed him a paper. After he read it, Mrs. Price heard him say, 'five hundred dollars,' and then say to the Grice Sisters, 'You told me I could have this (the new building) the same as this building.' Mrs. Price testified that 'they,' meaning the Grice Sisters, 'agreed, and said yes, but the new store would be a bigger store than that one.' Mrs. Price testified that at a later time, but prior to June 1964, the Grice Sisters again went to Mr. Nelson at his store and handed him another piece of paper. After Mr. Nelson read it he said: 'You come in here--you tell me I can have it the same as this one, then you come in here with five and now six hundred; I told you I couldn't pay five, I know I can't pay this.' According to Mrs. Price the Grice Sisters did not say anything in reply, 'they were standing there, smiling.'

Mr. Glen Price, branch manager of the Associated Wholesale Grocers, arranged for a conference on May, 25, 1964 between the Grice Sisters, Mr. Nelson, Mr. Harry Rishworth, the assistant branch manager of Associated Wholesale Grocers, and himself. The purpose of the conference was to attempt to work out an agreement between Mr. Nelson and the Grice Sisters concerning the rental of the new building. At this conference Mr. Nelson insisted that the agreement between him and the Grice Sisters was that he was to have use of the new building on the same terms as the agreement for the old building, that is, two percent of the gross sales with no minimum, and according to Mr. Price, the Grice Sisters did not deny this. The Grice Sisters said that the reason they wanted to build a new building was because the old building had been condemned and that it would be torn down. Frankie Grice, the only one of the sisters who testified, denied that they had said at any time the old store building had been condemned, and in fact, the building had not been condemned. A proposed new lease agreement was presented by the Grice Sisters. It was on a printed form and proposed a lease from the Grice Sisters to Mr. Nelson for a term of ten years of '8200 Sq. Ft. of building at the Southwest corner of 723 N. Glenstone with acces (sic) to all parking. Minimum rent of $800.00 per month and 2% of gloss (sic) over $40,000 per month.' There was also a provision that the lessee should 'operate seven day a week with a minimum of ten hours.' This is the first evidence of a demand by the Grice Sisters of a minimum rent of $800 per month or that the term be increased. During this conference Mr. Price 'suggested several different proposals,' none of which was acceptable. The Grice Sisters stated, according to Mr. Price, that they could not rent the new building on the 'basis of the old building' because the cost was greater than they had anticipated, and they were financing the building and their banker had told them that they had to have a minimum rent of six hundred dollars a month. No agreement was reached at this conference.

On June 21, 1964, the attorney for Mr. Nelson, wrote the Grice Sisters that the terms for the lease for the new building proposed by them were not acceptable, that 'all of us should get together to try to agree on a lease before you proceed further' with the construction of the new building, and that 'if a new lease cannot be mutually agreed upon that is satisfactory to both parties, Mr. Nelson, of course, will expect to keep possession of the premises under the existing lease * * *.' After the new building was completed, at the direction of the Grice Sisters the contractor constructed an addition to the new building ninety feet in length consisting of two rental business locations.

On June 22, 1964, Mr. Nelson suffered what was referred to at times in the record as a heart attack, but which the treating doctor defined as a 'myocardial ischemia or angina pectoris,' and he was absent from the store until the first part of September. On September 16 he had what the doctor referred to as a second 'episode' which he diagnosed as 'acute anxiety neurosis and hypertension of labile nature,' and was again hospitalized. On October 28, he had a 'new complaint,' and the doctor 'assumed' that on October 30, he 'passed a kidney stone.' While Mr. Nelson was absent from work his son managed the store. In October the Grice Sisters opened their own grocery store in the new building in competition with the store of Mr. Nelson, and were still operating it at time of trial. On November 16, 1964, Mr. Nelson attempted suicide by shooting himself, and the injuries he inflicted resulted...