Producers Packing Company v. Fischer

• Decision Date: 24 May 1926
• Citation: 283 S.W. 747,221 Mo.App. 639
• Parties: PRODUCERS PACKING COMPANY, APPELLANT, v. H. J. FISCHER ET AL., RESPONDENTS. [*]
• Court: Kansas Court of Appeals

283 S.W. 747

221 Mo.App. 639

PRODUCERS PACKING COMPANY, APPELLANT, v. H. J. FISCHER ET AL., RESPONDENTS. ^[*]

Court of Appeals of Missouri, Kansas City

May 24, 1926

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

AFFIRMED.

Judgment affirmed.

Paul Barnett for appellant.

W. W Blain for respondent.

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

OPINION

BLAND J.

This is an appeal taken from the action of the trial court in rendering judgment for defendants upon the pleadings. The suit is one upon a bond in the sum of $ 4000, given to secure the performance by the lessee of a lease between plaintiff as lessor and one E. R. Branson, as lessee, defendants being sureties upon the bond.

The facts as disclosed by the pleadings show that plaintiff on June 24, 1923, leased to Branson that part of its packing plant in the City of Sedalia 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; 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, they 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 until the amount of rent and the water charge therein mentioned should equal the full cost to lessor in sinking the well and installing the pump, and that said monthly payments 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. The well was sunk and the pump installed as provided in the lease and the well and pump were turned over to Branson and accepted by him under the lease on the first day of August, 1923.

The lease further provided that the plant as a whole should be insured by the lessor and that the lessee should pay one-fourth of the insurance premium to the former. It further provided that the lessee should furnish labor and superintend the making of repairs on machinery and refrigerating pipes on that part of the packing plant reserved by the lessor; 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 operation of various machines and appliances used therein in the slaughtering of animals, and for the purpose of operating the heating system in the plant. These services were evidently to be in lieu of cash rent for the use of the ice plant as they did not cover rent for the use of the deep well. The lease also provided that if the lessee should fail to pay rent or any installment thereof when it became due, or fail to perform any of the conditions imposed upon him by the contract, then the lease at the election of the lessor might be declared forfeited.

The ice plant was a part of the packing plant and the former and its equipment were the only means available for the furnishing of refrigeration and steam to the packing plant; it could not be operated without refrigeration and steam. This was known to the defendant and was within the contemplation of the parties at the time the lease and bond were executed. It was also known that if the lessee should fail or cease to furnish refrigeration or steam, plaintiff would be compelled to take possession of the ice plant and operate the same or shut down its packing plant, and it was in the contemplation of the parties at the time the lease and bond were executed and delivered that plaintiff would take over the ice plant in the event that Branson ceased to furnish refrigeration or steam. The manufacture of ice and the operation of the ice plant were carried on at a profit during the summer season when a large amount of ice could be sold but it was operated at a loss during the winter. This was known to the parties at the time the lease and bond were executed and within the contemplation of the parties and one of the purposes of the bond was to protect plaintiff from the contingencies that Branson should cease to operate the plant at the end of the profitable season and cease to furnish steam and refrigeration, compelling plaintiff to re-enter and take possession.

Branson took possession of the ice plant under the lease on June 24, 1923, but did not pay any rent for the pump and deep well, and in September, 1923, departed from Sedalia leaving the ice plant in full operation, and has not been heard of since. He made no arrangements for further payment of the employees and left no fuel with which to operate the ice plant. Plaintiff was forced to re-take possession of the ice plant and operate the same. On September 13, 1923, plaintiff exercised its option to forfeit the lease and took possession of the property because of the failure of Branson to perform the conditions to pay said rent described in the lease. Plaintiff has continued in the possession and operation of the ice plant. The premises were a part of the packing plant and under the terms of the lease the lessee was required to give technical and expert service to plaintiff. The property was not of such nature that it could be re-rented and for this reason no effort has been made to re-rent it. Branson failed to pay any of the $ 250 monthly payments. Plaintiff kept the property insured as agreed and paid insurance premiums in the sum of $ 100 but Branson failed to pay one-fourth or any part thereof.

In its petition plaintiff alleged that in the operation of the ice plant between November 3, 1923, and June 23, 1924, it lost the sum of more than $ 8000 as the direct result of Branson's breach of his lease; that plaintiff had recovered the sum of $ 500 on the bond. Plaintiff, therefore, prayed judgment for only $ 3500, the bond being for $ 4000.

It appears from the pleadings that plaintiff on November 3 1923, brought another suit against the defendants upon the same bond in which there was a judgment for plaintiff in the sum of $ 500. [See Producers' Packing Co. v. Fischer et al., 275 S.W. 979.] This sum was for the rent of the pump and the deep well for August and September although plaintiff prayed judgment for rent for these months together with that for October and November, or to the time the suit was filed. In said suit the jury were instructed that in order to return a verdict for plain...