Producers Packing Co. v. Fischer

• Decision Date: 25 May 1925
• Parties: PRODUCERS PACKING COMPANY, Respondent, v. H. J. FISCHER and J. W. SIMS, Appellant. *
• Court: Kansas Court of Appeals

275 S.W. 979

219 Mo.App. 429

PRODUCERS PACKING COMPANY, Respondent, v. H. J. FISCHER and J. W. SIMS, Appellant. *

Court of Appeals of Missouri, Kansas City

May 25, 1925

Appeal from the Circuit Court of Pettis County.--Hon. Dimmitt Hoffman, Judge.

AFFIRMED.

Judgment affirmed.

Paul Barnett for respondent.

W. W Blain and Montgomery & Rucker for appellant.

BLAND J. Arnold, J., concurs; Trimble, P. J., absent.

OPINION

BLAND, J.

This is a suit upon a bond given to secure the faithful performance by the lessee of a lease between plaintiff as lessor and one E. R. Branson as lessee, defendants being sureties upon the bond. There was a verdict and judgment in favor of plaintiff in the sum of $ 500 and defendants have appealed.

The facts show that plaintiff on June 24, 1923, leased to Branson that part of its packing plant used for an ice plant. The lease was for two years with the privilege given to the lessee to extend it for an additional three years. The lease provided that the lessor was sinking a deep well on the property on which the packing plant was located and that when said well was sunk to a certain depth it would equip the same with a pump and if when said well was completed and the pump installed "said well and pump could be made to furnish ninety gallons of water per minute" then the well and pump should be leased for a term beginning at the time when the well was completed and the pump installed and terminating with the termination of the lease; that for the well and pump lessee should pay as rent the sum of $ 250 per month for a specified time and which should begin on the day that the well and pump were fully completed and installed and turned over by the lessor to the lessee, and should be payable each month in advance; that the lessee should furnish labor and superintend the making of repairs on machinery and refrigerating pipes in that part of the plant reserved by the lessor; that the lessee should furnish to the lessor refrigeration and steam for its packing plant; that the lessee should refrigerate nine cold storage rooms in the packing plant and keep the same at certain specified temperatures; that the lessee should furnish steam to the packing plant for the purpose of operating various machines and appliances used therein in the slaughtering of animals and for the purpose of operating the heating system in the plant. This service was to be in lieu of cash rent for the use of the ice plant but did not cover rent for the use of the deep well. It was further provided in the lease that if the lessee should fail to perform any of the conditions imposed upon him, the lease at the election of the lessor might be declared forfeited, and that the lessor might re-enter and retake the leased premises. The lease was silent as to whether such re-entering and retaking should relieve the lessee of the payment of the rent.

The lease further provided that the plant should be insured as a whole by the lessor and that the lessee should pay a certain portion of the insurance premium to the former and provided that upon the taking of possession the lessee should execute a bond with one or more sureties thereon in the sum of $ 4000 "conditioned that he will perform the conditions of his said lease for not less than one year." The bond was executed in accordance with the lease, the former reciting,

"Now, therefore, if the said E. R. Branson shall perform the conditions of his said lease which are imposed upon him therein, for a term of not less than one year, then this obligation to be void; otherwise to remain in effect."

Plaintiff's evidence tended to show that prior to August 1, 1923, it completed the deep well and installed the pump, all in accordance with the provisions of the lease, and that they were accepted by the lessee on that day. There was evidence on the part of defendants that the pump did not comply with the lease and was never accepted by the lessee. The lessee entered into possession of the leased premises under the lease but did not pay any rent, but in September, 1921, he left Sedalia with the ice plant in operation and has not been heard of since. Plaintiff took possession of the leased premises on September 13th and has continued operating the same. The petition prays for the monthly rental of $ 250 for the months of August, September, October and November and "because of the failure to supply water in the sum of $ 146.20, and because of his failure to pay one-fourth of the insurance premiums as aforesaid, in the sum of twenty-five dollars ($ 25)."

At the request of plaintiff the court gave instruction No. 1 which, in part, told the jury that if they found that the well was completed and the pump installed and that when completed and installed they "could be made to furnish as much as ninety gallons of water per minute" and that said well and pump were turned over to lessee and accepted by him on the 1st of August, 1923, and that the lessee did not pay any rent under the lease and did not pay one-fourth of the insurance premium for certain insurance carried upon the plant, and that plaintiff took possession of the ice plant on September 13, 1923, and that plaintiff had not made a profit in the operation of the ice plant since taking it over, their verdict should be for plaintiff.

Defendants offered instructions D, E, and F, each of which were drawn upon the theory that when plaintiff re-entered and retook possession of the leased premises the relation of landlord and tenant ceased and the lessee was excused from the payment of rent not then accrued, and that the release of the lessee released the defendants. Defendants' refused instruction G sought to tell the jury that there was no obligation to pay rent under the lease unless plaintiff furnished a well and pump...