Oth v. Wabash R. Co.

• Decision Date: 09 January 1912
• Citation: 162 Mo. App. 607,142 S.W. 754
• Parties: OTH v. WABASH R. CO.
• Court: Missouri Court of Appeals

142 S.W. 754

162 Mo. App. 607

OTH v. WABASH R. CO.

St. Louis Court of Appeals. Missouri.

January 9, 1912.

1. RAILROADS (§ 134)—BREACH OF LEASE— ACTION—VARIANCE.

Plaintiff having previously had two leases of a side track of defendant railroad leading to a quarry, at the expiration of the second requested another for five years. Defendant's agent obtained a blank, which, when signed by plaintiff, was returned for signature of defendant's officers, but was never signed. Plaintiff, on signing the lease, paid defendant's agent the rent reserved therein for a year, and two months thereafter was advised that defendant had decided not to renew the lease and intended to tear up the track. The rent not having been returned, plaintiff sought to recover for breach of a lease for a year. Held, that there was no lease for a year, but a tenancy at will terminable on one month's notice in writing, as provided by Rev. St. 1909, § 7883, and hence it was error to permit plaintiff to recover under such petition, on proof of the tenancy at will.

2. RAILROADS (§ 134)—BREACH OF LEASE— BUSINESS PROPERTY.

Where a railroad company canceled a tenancy of a switch track leading to plaintiff's quarry, plaintiff was entitled to recover prospective profits for the remainder of the term, but could not recover as for the entire loss of the quarry.

3. FRAUDS, STATUTE OF (§ 44)—LEASE OF REAL PROPERTY.

Where a petition for landlord's breach of an alleged lease averred a contract for lease for the year 1906, and the payment of rent for that year on January 17, 1906, it did not allege a contract within the statute of frauds.

Appeal from Circuit Court, St. Charles County; James D. Barnett, Judge.

Action by John Oth against the Wabash Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

J. L. Minnis, N. S. Brown, and T. F. McDearmon, for appellant. Geo. S. Grover and Theodore C. Bruere, for respondent.

REYNOLDS, P. J.

This is an action by plaintiff for damages claimed to have arisen in his favor and against defendant by reason of the latter, without due and lawful notice to plaintiff, and long prior to the termination of a lease which he claimed he had, wrongfully and unlawfully ousting plaintiff from the possession of the demised premises, those premises consisting of a switch or sidetrack at Elm Point on defendant's railroad. Plaintiff placed his damages at $12,000. It is averred in the petition that for a number of years plaintiff had been operating a quarry at Elm Point in St. Charles county and engaged in the quarrying and crushing of limestone and shipping the product out from there over this sidetrack to various points of distribution. It is also averred that for many years prior to the institution of this action defendant had leased this sidetrack to plaintiff for an entrance and exit to and from his quarry and that it was the sole connection of the quarry with defendant's line of railroad at that point; that the leasing was made through one Steed, alleged to be defendant's agent and who collected rents for the use of the track from time to time for defendant; that the first lease was made on or about the 12th of February, 1896, for a term of five years ending February 12, 1901, and that about February 12, 1901, it was renewed for another period of five years ending on February 11, 1906; that on January 17, 1906, defendant, through its agent Steed, presented to plaintiff a new lease for the quarry track for a period of three years beginning in 1906, at an annual rental of $20.60; that the lease was then and there signed by plaintiff and returned by him to Steed to be executed by defendant; that Steed never returned the lease executed by defendant to plaintiff; that on that date, namely, January 17, 1906, plaintiff paid to Steed the annual rental for the track for the year 1906, amounting to $20.60, and received from Steed, as agent of defendant, a receipt in the following form: "Received of John Oth $20.60 rent for quarry track at Elm Point, for 1906. H. H. Steed, Agent." It is further averred that defendant through its said agent had for the sum above stated leased the quarry track at Elm Point to plaintiff for the year 1906; that this rental had never been refunded or returned to plaintiff by defendant or by its agent, and that on the faith of this payment by him to defendant, "and of said lease by defendant, of said premises, for said year 1906, as aforesaid," plaintiff had expended large sums in the construction and repairing of his buildings on the quarry track and had quarried large quantities of stone of various sizes for sale and shipment and expended large sums of money for necessary tools and machinery for the purpose of operating the quarry and had entered into various profitable contracts with sundry persons for sale and shipment of stone from the quarry and had duly performed all the conditions of the lease but that without due and lawful notice to plaintiff, defendant, long prior to the termination of the lease, wholly failed to perform its part of the lease and in the month of April, 1906, wrongfully and unlawfully removed and destroyed its quarry track at Elm Point and thereby destroyed the value of plaintiff's buildings and his quarry plant and ruined his business at that place to his damage in the sum of $12,000, for which he prays judgment.

A demurrer was filed to this petition, the demurrer overruled. Whereupon defendant filed its answer which, after admitting its incorporation and ownership of the line of railroad, pleads the statute of frauds, averring that the agreement of lease alleged to have been entered into between plaintiff and defendant on January 17, 1906, was not put in writing and signed by defendant or any agent of defendant authorized by writing so to do. A release is also pleaded which it is not necessary to notice at length.

The reply was a general denial.

A trial before the court and jury resulted in a verdict and judgment for plaintiff in the sum of $4500. Interposing a motion for a new trial and in arrest and excepting to the overruling of them, defendant duly perfected its appeal to this court, assigning various grounds of error.

In the view we take of the case it will not be necessary to set out the evidence in detail. It is sufficient to say of it that the evidence tended to show plaintiff had a lease from defendant, not only of the sidetrack but also of a section house and adjacent ground at Elm Point, the latter at a monthly rental of $10. He commenced operations in the quarry and the use of the switch along in 1896, under a five-year term for the track. That lease expiring was renewed for a like term which ended February 11, 1906. On January 17, 1906, plaintiff, desiring...