New Era Manufacturing Co. v. O'Reilly
| Decision Date | 19 June 1906 |
| Citation | 95 S.W. 322,197 Mo. 466 |
| Parties | NEW ERA MANUFACTURING COMPANY, Appellant, v. O'REILLY et al |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Robert M. Foster Judge.
Affirmed.
Lee Sale for appellant.
(1) The court erred in holding that there was no obligation on the part of the landlord under the lease with reference to the furnishing of steam to plaintiff. Pollock on Contract (7 Ed.), 245; 2 Page on Contracts, sec. 1118; Pordage v Cole, 1 Saund. 319h; French v. Bent, 43 N.H 448; Booth v. Rolling Mill Co., 74 N.Y. 15. (2) The court erred in excluding the testimony offered by plaintiff tending to show that the dynamo and engine installed in plaintiff's premises were not a 30 kilowatt 220-volt dynamo and engine.
Kinealy & Kinealy and James P. Maginn for respondents.
(1) There is no liability under the terms of this lease upon the lessor because of disagreements that arose between the lessee and Singer Bros. over the matter of appellant's obtaining steam from the boilerplant in the building occupied by Singer Brothers or because of the failure of the latter to furnish such steam. Roberts v. Cottey, 100 Mo.App. 500; Morse v. Maddox, 17 Mo. 569. (2) The evidence offered by appellant and excluded by the court as to the capacity of the dynamo and engine was incompetent because appellant did not within a reasonable time after their installation complain to the lessor that the dynamo and engine were not of the character and capacity called for by the lease, and also because it was not shown that at the time that the alleged tests were made the dynamo and engine were in the same condition as they were when installed. Lamar Water & Electric Light Co. v. Lamar, 140 Mo. 145.
This was an action commenced in the circuit court of the city of St. Louis for alleged breaches by the lessor in a certain lease made by the lessor, Dr. Thomas O'Reilly, to the plaintiff company on the 25th of October, 1899.
The petition alleged that on said date the said O'Reilly leased to plaintiff the premises known as 905 and 907 Lucas avenue in the city of St. Louis, for a period of five years, commencing January 1, 1900; that the said premises were a part of a certain eight-story brick building and basement known as 901, 903, 905 and 907 Lucas avenue; that the said building and basement were divided off by partition walls so as to render them fit and suitable for occupancy by two distinct tenants, 901 and 903 by one tenant, and 905 and 907 by another, both of said tenements being adapted for use as manufacturing establishments; that the premises 901 and 903, at the time of the execution of the lease to plaintiff, contained a boiler plant adapted for the production of steam, which was to be used for furnishing heat, light and power for both tenants, and that there were pipes and other apparatus running from the premises 901 and 903 through and about the floors of premises 905 and 907, which were connected with the boiler plant, and receiving steam therefrom; that there is also in the premises 905 and 907 two elevators with the necessary machinery and apparatus for operating the same and also machinery and apparatus for heating the premises by means of steam generated by the said boiler plant. The petition then alleges that at the date of the lease Singer Bros. were in possession of 901 and 903 under a lease from said O'Reilly; that in the lease to plaintiff said O'Reilly agreed to put the boilers, engines, elevators and radiators and the machinery for operating the two elevators and for heating the building in good condition, and to wire the building for electric lighting, and to furnish in the premises 901 and 903 a 30 kilowatt 220-volt constant potential direct coupled dynamo and engine, and to deliver the premises to plaintiff on December 15, 1899.
It is further alleged that by said lease said O'Reilly obligated plaintiff to pay to the lessee of the premises 901 and 903 monthly on demand one-half of the total cost of running and operating the boiler plant, including in such costs all outlays for salary, wages, coal, repairs and other expenses and that it was provided that such payment by plaintiff should be for the steam heat and power and the running of the said dynamo and engine, and also for live steam for plaintiff's dryer and laundry machine, and in consideration of said monthly payment by plaintiff to lessee of 901 and 903 would furnish steam for all purposes aforesaid. It is then alleged that on December 15, 1899, plaintiff took possession of the premises 905 and 907 with all repairs and alterations made except the installation of the dynamo and engine, which was provided for in the lease, plaintiff relying upon the agreement of O'Reilly to furnish the dynamo and engine later; that on February 22, 1900, O'Reilly installed the dynamo and engine, which plaintiff alleges was not capable of doing the work of a 30 kilowatt 220-volt dynamo and engine, but was of inferior capacity and insufficient for the uses for which said dynamo and engine are designed. The petition then proceeds to state the various items of damage to plaintiff by the insufficiency of the dynamo and engine furnished by O'Reilly; that since the taking of possession by plaintiff of the premises on December 15, 1899, plaintiff had paid to Singer Bros., the tenants of the premises 901 and 903, half of the total cost of running and operating the said boiler plant and was continuing so to do as required by said lease; that on February 11th, 1902, Singer Bros. did decline and refuse to furnish steam to plaintiff for the running of said dynamo and engine unless plaintiff would agree to pay the entire cost of furnishing said steam and of running and caring for the said dynamo and engine, and that plaintiff thereupon notified the defendants of such refusal on the part of Singer Bros., but defendants have failed and refused to require Singer Bros. to furnish such steam; that the said O'Reilly died February 24, 1901. Plaintiff then states that while the dynamo and engine were being operated in plaintiff's premises between February 22, 1900, and June 23, 1901, at which time it broke down, plaintiff was required to pay and did pay the entire cost of the services of a competent electrician whose services were required for the care of the dynamo and engine, and that Singer Bros. refused to furnish an electrician for that purpose, by reason of which failure plaintiff was compelled to expend $ 731.45.
The petition further alleges that since June 3, 1901, plaintiff has been compelled to obtain all of the electric light and power required by it for use in its business from persons other than the Singer Bros., and to furnish steam for the dynamo and engine plaintiff will be compelled to purchase electric light and power during the unexpired term of the lease, all to the plaintiff's damage in the sum of $ 5,650.30.
Inasmuch as the court sustained a demurrer to the evidence, it is deemed unnecessary to refer to the answer of the defendant and plaintiff's reply thereto. The lease offered in evidence let to the plaintiff "the eight-story brick building and basement known as Nos. 905 and 907 Lucas avenue for a period of five years commencing January 1st, 1900, at a rental of $ 4,000 per year for the jobbing and manufacturing of shirts, cloaks, suits, etc." For the purpose of this case the material provisions of the lease are as follows:
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