Red Diamond Clothing Co. v. Steidemann

• Decision Date: 31 December 1912
• Citation: 152 S.W. 609,169 Mo.App. 306
• Parties: RED DIAMOND CLOTHING COMPANY, Appellant and Respondent, v. MARY A. STEIDEMANN et al., Respondents and Appellants
• Court: Missouri Court of Appeals

152 S.W. 609

169 Mo.App. 306

RED DIAMOND CLOTHING COMPANY, Appellant and Respondent, v. MARY A. STEIDEMANN et al., Respondents and Appellants

Court of Appeals of Missouri, St. Louis

December 31, 1912

Appeal from St. Louis City Circuit Court.--Hon. Hugo Muench, Judge.

REVERSED AND REMANDED.

STATEMENT.--These are cross-appeals. The suit is in conversion for the value of a lot of fixtures. The finding and judgment were for plaintiff and defendants prosecute an appeal therefrom on the theory that the property found to have been converted belonged to them because of annexation to the freehold; while plaintiff prosecutes an appeal from the same judgment for the reason it is dissatisfied with the amount of the recovery. The case was referred by the circuit court to Charles P Williams, Esquire, a member of the bar of the city of St Louis, who, after having heard the evidence, in due time reported his findings of fact and conclusions of law thereon. The referee's report reveals a careful and thoughtful consideration of the case and sets out the facts and conclusions so clearly as to warrant us in copying it in full. For a complete statement of the case, we set forth the referee's report as follows:

"In May, 1889, E. H. Kortkamp, Julius Steidemann, Mary A Steidemann, O. H. Kortkamp, Anna Kortkamp, Matilda Giessler William J. Giessler, Emilia Zacher and August Zacher owned a lot of ground in city block 168 in the city of St. Louis containing a front of forty-seven feet on the west line of Eighth street by a depth westwardly of 132 feet, six inches bounded on the north by a line seventy-one feet, six inches distant from the south line of Franklin avenue. This 47-foot lot was made up of two parcels of ground which may be designated as the Kortkamp parcel and the Steidemann parcel.

"On the day aforesaid all the foregoing parties joined in executing a lease of the aforesaid forty-seven feet to the Milius Boot & Shoe Manufacturing Company, the lessors further agreeing in said lease to erect a factory building covering the whole forty-seven feet for the use of the lessee. The lease was for a term of ten years with an annual rental of $ 2200, payable in monthly installments, and the lessee covenanted to pay the taxes, which amounted to some four hundred dollars per annum. There was apparently some arrangement as to the rental which caused it to be fixed with relation to the estimated cost of the building. Shortly before the building was completed, Mr. Milius, the president of the lessee company, had a talk with Mr. Julius Steidemann, one of the owners, in which Mr. Steidemann stated that he was acting as the agent of the parties interested in the building; that those parties would object to putting up anything in the building except the building proper and the elevators; and, as long as the lessee company had its own boiler, engine and heating plant at its former place of manufacture, that, if the lessee desired, it could move its own plant to the new premises, and as the owners did not desire to go to this expense, they would not charge it as a part of the construction. In accordance with this arrangement, the lessee company installed in the building its boiler, engine, heating apparatus, steam pump and blow-off tank. The blow-off tank was used to receive the waste steam from the engine and boiler and was required to be used in connection therewith by the city ordinance. The steam pump appears to have been used in connection with the boiler and with the water supply in the sprinkling tank and pipes.

"Some time later, the lessee brought up the question of installing a sprinkling equipment in the building and discussed the matter with Mr. Julius Steidemann. Mr. Steidemann objected to putting the sprinkling equipment in and Mr. Milius then inquired whether he would be willing to contribute any portion toward the cost of it. Mr. Steidemann at first objected and said he did not care to go to the expense. Mr. Milius then argued with him on the proposition of insurance, but Steidemann stated that he was insured in a mutual company anyway. He then stated that if the balance of the folks did not object he would see them and might possibly get some contribution toward it for the lessee. In a later interview between the parties, Steidemann agreed to pay $ 250 toward the expense of installing the sprinkling apparatus, stating that he didn't care about it and that at any time the lessee desired to move it or any part of the plant they could do so. There was no substantial evidence that this $ 250 was contributed to by any of the other lessors except Julius Steidemann. Thereafter the sprinkling plant was put into the building by the lessee company.

"About a year and a half before the termination of the tenancy under the first lease, Mr. Milius endeavored to sell the articles in controversy to Mr. Julius Steidemann, stating to him that they would be worth a great deal more to him or to any new tenant that was to occupy the building, but Steidemann refused to buy them, stating that he didn't care about investing any money in them, that the lessee could take them or leave them just as he pleased.

"A few months after the above-detailed occurrence, the Milius Boot & Shoe Manufacturing Company sold the articles in controversy to the Wright & Greene Manufacturing Company for the sum of $ 800. Prior to this sale, Mr. Greene of the Wright & Greene Manufacturing Company came to see Mr. Julius Steidemann about the purchase of the plant. Mr. Steidemann stated to Mr. Greene that they had no title to the property in the building, to the machinery, etc., and that the Wright & Greene Company could buy this property without any danger from the owners. Acting upon these statements, Wright & Greene bought the property in controversy.

"About the same time, Wright & Greene bought the unexpired portion of the Milius lease, and secured a new lease of the premises from Mary A. Steidemann, Emilia Zacher and Julius Steidemann, the then owners, which lease is in word and figures as follows, to-wit:

"'This lease, made and entered into this 31st day of July, 1899, by and between Mary A. Steidemann, Emilia Zacher and Julius Steidemann, hereinafter referred to as the lessors, and the Wright & Greene Manufacturing Company, hereinafter referred to as lessee:

"'Witnesseth, That said lessors for and in consideration of the rent to be paid, and the covenants and stipulations hereinafter mentioned, to be kept by said lessee, its executors, administrators, successors and assigns, do hereby lease unto the said lessee the following described premises, situated in the city of St. Louis, State of Missouri, to-wit, the four-story and basement brick building known and numbered eight hundred and twenty-five (825) and eight hundred and twenty-seven (827) North Eighth street.

"'To have and enjoy the same, subject to the conditions herein contained for the purpose of manufacturing shirts, overalls, duck goods, etc., and shall not be used by said lessee, or any person occupying the same, in any manner or for any purpose prohibited by any law or ordinance or by the terms hereof for and during the term of five years commencing on the first day of January, 1900, and ending on the thirty-first day of December, 1904. Said lessee, and all claiming under it by virtue of the provisions of this lease, paying a rental therefor to the said lessors or their legal representatives, of nine thousand, five hundred (9500) dollars, for the full term of this lease, and to pay the same monthly in advance, in installments of one hundred and fifty-eight and one-third dollars per month in lawful money of the United States on the first day of each month during the continuance of this lease.

"'Said lessee will not assign or sublet the whole or any part of said premises, without the written consent of lessors, any consent by lessors to any assignment, or subletting of said premises or any part thereof, shall not be held to release the lessee from a fulfillment on its part with the conditions or covenants held against it. All repairs or alterations deemed necessary by lessee to be made by lessee at its own expense, with consent of lessors, and all repairs or alterations so made to remain on the premises without cost to lessors.

"'Said lessee and all holding under it agree to use reasonable diligence in the care and protection of said premises during the term of this lease; to pay water license assessed against property, to keep water pipes and plumbing in order, and to pay all loss or damage done to premises unless beyond its control or power to prevent.

"'It is understood that said premises are to be kept free from all nuisances whether of privy, yard, cellar, or sewer, at the expense of said lessee.

"'The lessee obligates itself to keep the premises at all times free from the accumulation of ashes, trash or other rubbish.

"'It is further understood and agreed by said lessee that in the event of any increase in rate of insurance on said premises caused by lessee occupancy, that said lessee will pay to lessor upon demand the amount of said increase.

"'The lessee agrees to permit the lessors or their agents to inspect the premises hereby leased at any time during business hours, so as to determine if all provisions of this lease are being complied with by said lessee, and also for the purpose of allowing said lessor or their agent to do any work said lessors may deem necessary for the protection of the property leased.

"'Failure on the part of lessee to comply with the provisions of this lease to work a forfeiture of same at option of lessors, and in case of any forfeiture of this lease the said lessors or their assigns shall be entitled and may take possession of said demised premises.

"'Said lessee...