Ray Realty Co. v. Holtzman

• Decision Date: 30 September 1938
• Docket Number: No. 24499.,24499.
• Citation: 119 S.W.2d 981
• Court: Missouri Court of Appeals
• Parties: RAY REALTY COMPANY, A CORPORATION, APPELLANT, v. ISADORE HOLTZMAN, RESPONDENT.

119 S.W.2d 981

RAY REALTY COMPANY, A CORPORATION, APPELLANT, v. ISADORE HOLTZMAN, RESPONDENT.

No. 24499.

St. Louis Court of Appeals. Missouri.

Opinion filed September 30, 1938.

Appeal from Circuit Court of the City of St. Louis. — Hon. John W. Joynt, Judge.

AFFIRMED EXCEPT AS TO COSTS AND REVERSED AND REMANDED (with directions as to costs).

Henry H. Furth for appellant.

(1) (a) Tender is an affirmative defense which must be both pleaded and approved. There was no proof whatever on the subject. Amber v. Davis, 282 S.W. 459; Defeo v. Goodwin, 287 S.W. 1075; Pauley v. Business Men's Cas. Co., 261 S.W. 342, 343. (b) In a law case, a mere offer to pay is not sufficient as a tender. The evidence discloses a mere offer to pay, followed by a counterclaim. Amber v. Davis, supra; Mahan v. Waters, supra, 60 Mo. 167, 171; John v. Garland, 63 Mo. App. 578, 583, 584; Defeo v. Goodwin, supra. (c) Tender must be kept good by payment into court. There is no proof that any money was paid into court and none was in fact paid. Mahan v. Waters, supra; Adams v. Goldman, 253 S.W. 194. (2) Griffin v. Freeborn, 181 Mo. App. 203, 208, 309; Hopkins, Trustee, v. Murphy, 233 Mass. 476; Truesdell v. Booth, 6 Thom. & C. (N.Y.) 379; 4 Hun. 100; Vanderbilt v. Persse, 3 Ed. Smith (N.Y.) 428; Jacobs v. Morand, 59 Misc. 200, 110 N.Y. Sup. 208; Pomeroy v. Tyler, 9 N.Y. St. Rep. 514. (3) Griffin v. Freeborn, supra; Delmar Inv. Co. v. Blumenfeld, 118 Mo. App. 308, 317; Barrett v. Boddie, 158 Ill. 479, 484, 485; Dolph v. Barrie, 165 Mo. App. 657, 668; Jackson v. Eddy, 12 Mo. 209. (4) Barrett v. Boddie, supra; Gibbons v. Hoefeld, 216 Ill. App. 282, 289; Aguglia v. Cavicchia, 229 Mass. 263; 118 N.E. 283; Boyd v. McCarty, 142 Tenn. 670, 222 S.W. 528, 529; Sec. 1242 R.S. Mo. 1929; Earl v. Hart, 80 Mo. 263; Sec. 1250, R.S. Mo. 1929; Ferguson-McDaris Lbr. Co. v. Tiede & Co., 130 Mo. App. 267, 272.

Moldafsky & Moldafsky for respondent.

(1) Where the premises occupied by the respondent is infested with rats, mice, bugs and other vermin due to conditions not under the control of the tenant (respondent), and this condition causes the greatest discomfort to the tenant and his family, there is a constructive eviction. Streep v. Simpson, 80 Mo. 666, 141 N.Y. 863; Smith v. Marrable, 11 M. & W. 5, 152, Reprint 693; Barnard Realty Co. v. Bonnet, 155 App. Div. 182, 137 N.Y.S. 1150. Presence of vermin in great numbers in a building rented to several tenants, control of the lower part of which is retained by the landlord, constitutes a nuisance so as to justify the tenant in abandoning the premises, even without direct proof that the vermin came from or through the part of the building under the landlord's control. Dolph v. Barry, 148 S.W. 196; Vromanica Apartments Co. v. Goodman, 123 S.W. 543; Delmar Investment Co. v. Blumenfield, 94 S.W. 823; Batterman v. Levenson, 168 N.Y.S. 197, 102 Mis. 92; Smith v. Greenstone, 208 S.W. 628. (2) If there is any substantial evidence, even though slight, to sustain the trial court's finding, the appellate court cannot, by weighing and passing on the evidence, find the facts for itself and interfere with such judgment. Glaze et al., ex rel. Board of Superintendents of Harrison County Drainage District v. Shumard et al., 54 S.W. (2d) 726, l.c. 730.

McCULLEN, J.

This suit was begun in a justice of the peace court in the City of St. Louis by appellant herein, who will be referred to herein as plaintiff, to recover from respondent, who will be referred to as defendant, the sum of $510, as rent for an apartment from September 3, 1931, to March 2, 1932, a period of six months, at $85 per month.

Plaintiff alleged in its petition in the justice of the peace court that defendant had entered into a lease with it for said apartment for a term of two years from March 3, 1930, and had paid the rent under said lease up to September 2, 1931, and had abandoned the premises on October 6, 1931, and paid no further rent.

Defendant filed an answer in which he admitted the lease and the tenancy, and pleaded that plaintiff had installed an incinerator in the apartment building, which, because of its failure to destroy and dispose of the garbage that accumulated therein, caused, allowed and permitted rats, mice, roaches, and bugs to overrun the premises occupied by defendant; and caused an obnoxious odor therein on account of dead rats and mice remaining in a decomposed condition between the walls and under the floors; and that plaintiff, although informed thereof, failed to remedy said condition, thereby allowing and permitting the premises to become untenantable and unfit for peaceful occupancy by defendant. Defendant admitted in his answer that when he abandoned the premises, there was rent from September 3rd to October 6th, 1931, amounting to $93.50, unpaid and due to plaintiff, and stated in his answer that "defendant hereby tenders into this court the said sum of $93.50 for the benefit of the plaintiff." Included in the answer of defendant was a "Counterclaim or Set-Off" in which defendant asked for damages by way of a set-off in the sum of $60.05, for money expended by him for renovation and repair of his rugs and furniture, and the cost of removing his household goods from the premises.

The trial before the justice of the peace resulted in a judgment in favor of defendant. Plaintiff appealed from that judgment to the circuit court, where a trial was had before the court without a jury, a jury having been waived, resulting in a judgment for plaintiff for $93.50; and also for plaintiff on defendant's counterclaim, but the costs of the case were adjudged against plaintiff. The court made a separate finding of facts. After an unavailing motion for a new trial, plaintiff brings the case to this court by appeal.

Plaintiff contends that the finding of the circuit court that defendant was deprived of the beneficial use of the premises because of the presence of vermin therein is without any support in the evidence. It is also contended by plaintiff that the finding of the court that plaintiff, as landlord, was responsible for the presence of vermin on the premises during the period of the lease because of neglect to properly consume the garbage in the incinerator, which was the direct reason for the presence of vermin in said apartment in such great numbers, has no support in the evidence.

An examination of the evidence shows that this complaint is not well founded. Plaintiff produced only two witnesses — Mr. and Mrs. Leon Marglous. Mr. Marglous was vice president and Mrs. Marglous was secretary of the plaintiff corporation.

Mrs. Marglous testified that she managed the apartment; that it was a six-family apartment; that a new incinerator was put in the building in 1927; that it was necessary to keep a fire in it every morning to burn up all the garbage thrown in the incinerator. She said: "I received reports from Mr. Holtzman that there were rats and mice in the building, but we had an exterminator to take care of them." She further testified that she had no record of the number of times the exterminator company had been out there; that the agreement with the exterminator company was for once a month, but that she would call whenever it was necessary. Mrs. Marglous further testified that she notified Wilson, the janitor at the building, about "complaints from Holtzman about the bugs and rats around there." In this connection Mrs. Marglous said: "I received numerous complaints from Holtzman, and I told the janitor to watch it more carefully and to watch the building more careful on account of receiving several complaints." She stated that she had inspected the premises occupied by defendant Holtzman, and "I did not see any rats and bugs in their home but I did see some in the basement... . When we received a complaint of an odor, I told him why not investigate the plaster walls of the basement."

It appears from the evidence, without contradiction, that defendant sent a letter of complaint to Henry R. Weisels Co., Inc. agent of plaintiff for the property in question, in which he stated that during the past year he and his wife had reported the condition complained of to the agent and to Mr. Marglous. In that letter defendant said:

"An influx of black bugs, mice, and the odor in our place is simply unbearable. Have taken the matter up with your janitor, Wilson, and he tells us that the only possible explanation of same is that one or several mice or rats which ate some of the stuff left by the exterminator on the premises crawled in between the walls or partitions and died, therefore he can do nothing to remedy same."

In the same letter defendant stated that he would be forced to vacate if the condition was not remedied within ten days; that his wife was ill from said conditions; and that "several nights ago, we invited some friends for the evening, and the odor was so terrible we had to take them out for a ride to get away from same." It further appears that the letter of complaint sent by defendant was received by plaintiff's agent, who stated, in acknowledging receipt thereof, that the same had been forwarded to the owner with instructions to take care of it at once. The letter of complaint sent by defendant was dated April 16, 1931, and the letter of plaintiff's agent acknowledging receipt thereof was dated April 20, 1931.

Cornelius Wilson testified on behalf of defendant that he was janitor in charge of the premises mentioned during the period of time defendant occupied one of the apartments therein; that before defendant moved out of the apartment, witness had occasion to tear up part of the ceiling to remove dead mice, and removed four; that he reported to Mrs. Marglous, and also to the exterminator company that had been working there, that "there were bugs around the place while the Holtzmans lived there." Asked as to the cause of the bugs, the witness said: "Well, I could not say whether it was from the incinerator or not,...