Rees v. Andrews

• Decision Date: 21 May 1902
• Citation: 169 Mo. 177,69 S.W. 4
• Court: Missouri Supreme Court
• Parties: REES v. ANDREWS et al.<SMALL><SUP>1</SUP></SMALL>

69 S.W. 4

169 Mo. 177

REES v. ANDREWS et al.¹

Supreme Court of Missouri, Division No. 1.

May 21, 1902.

PARTNERSHIP — DISSOLUTION — RECEIVER — LANDLORD AND TENANT.

Plaintiff entered into partnership with a firm of theatrical managers who had a lease of a theater. A short time thereafter the firm became insolvent, and the owner declared the lease forfeited and took possession of the property. Thereafter plaintiff sued to dissolve the partnership and for an accounting, alleging that the lease was forfeited and possession surrendered through collusion between such owner and the other partners, and obtained a recovery of the partnership property and the appointment of a receiver of the building. Held error, since the relation of landlord and tenant did not exist between plaintiff and such owner, and plaintiff had no interest in the building.

Appeal from circuit court, Jackson county; W. B. Teasdale, Judge.

Action by Lydia E. Rees against George Andrews and others. From an order refusing to revoke an interlocutory order appointing a receiver, the defendant Edward Butler appeals. Reversed.

Appeal, under section 806, Rev. St. 1899, from an order of the circuit court of Jackson county refusing to revoke an interlocutory order appointing a receiver. Edward Butler is the owner of the property on the northwest corner of Twelfth and Central streets in Kansas City, together with the improvements situate thereon, which consist of a theater building, formerly called the "Standard Theater Building," but now called the "Century Theater," and a hotel building called the "Century Hotel." At the times hereinafter stated the hotel was leased to one Warrick, and by the terms of the lease the lessor was obligated to furnish steam, hot water, and heat to the hotel, and the barber shop, bathroom, and saloon located therein, under a penalty of forfeiture of the lease. On the 19th of March, 1901, Butler leased the theater building to one Bowles for a term of five years, and, in addition to the cash rental, the lessee agreed to furnish the steam, hot water, and heat to the hotel, barber shop, bathroom, and saloon that Butler was under obligation, as stated, to furnish. The cash rental was fully paid up to December 31, 1901. The lease to Bowles prohibited any assignment or subletting without Butler's consent. On the 29th of July, 1901, Bowles, with Butler's consent, assigned the lease to the Andrews Opera Company, a copartnership composed at that time of George Andrews, Edward M. Andrews, and C. W. King. Afterwards, by agreement dated August 2, 1901, the copartnership was formed between Mrs. Lydia E. Rees, the plaintiff, and George Andrews, Edward M. Andrews, and C. W. King, under the name of the Andrews Opera Company, and by the articles of copartnership it was recited that the lease was owned by said parties jointly; that is, that Mrs. Rees owned one half thereof and the Andrews Opera Company owned the other half. It does not appear, however, that Butler ever consented to an assignment of any part of the lease to Mrs. Rees, or that he ever knew that she was a member of the copartnership of the Andrews Opera Company. On the contrary, it does expressly appear from the record that before the assignment to the Andrews Opera Company, and while Bowles was the lessee, Mrs. Rees applied to Butler's agent for Butler's consent to an assignment by Bowles to Mrs. Rees of a half interest in the lease, and that such consent was refused on the ground that Butler would not rent the building to any woman, or consent to any woman's having any interest in the lease. It also appears that Mrs. Rees was not a member of the copartnership of the Andrews Opera Company on July 29, 1901, when Butler consented to the assignment of the Bowles lease to the Andrews Opera Company, and did not become a member of that firm until August 2, 1901; and it does not appear that Butler ever knew of her becoming a member of that firm at that time, or until the troubles herein spoken of arose, or that he ever consented that the firm of Andrews Opera Company, as reorganized on August 2, 1901, should be the assignees of the lease.

The Andrews Opera Company entered upon the business of giving performances in the theater, and continued so to do until October 2, 1901, when it became financially embarrassed. On that date Butler notified the Andrews Opera Company that he would forfeit the lease if they failed to furnish steam, heat, and hot water to the hotel. The opera company gave no performances thereafter, but continued to furnish steam, heat, and hot water to the hotel until October 7th, when the wages of the engineer being in arrears, the water license being due and unpaid, and the coal and other bills being unpaid, the engineer quit work, and George Andrews notified Butler's agent that the Andrews Opera Company could not longer comply with the terms of the lease. Thereupon Butler's agent went to the theater, and met the two Andrewses, King, and the plaintiff, and informed them that he would forfeit the lease. The plaintiff offered to guaranty the payment of the debts and bills aforesaid, but Butler's agent told her that would not do. Thereupon she gave the engineer a check for his wages, and arranged with the city about the water license; and, it being after the close of the bank for the day, the engineer resumed work. On the next day the check for the engineer's wages was presented at the bank for payment, and payment refused, and thereupon the engineer again quit and left the place. Butler's agent immediately went to the premises, and, in the presence of the plaintiff, declared the lease forfeited; and George Andrews, who was the general manager of the Andrews Opera Company, surrendered the possession of the premises to Butler's agent, and notified him that the Andrews Opera Company was unable to carry out the terms of the lease. At that time the actors and players were unpaid, and there had been no performance given in the theater since the 2d of October, because Browning, King & Co., having that day begun an attachment suit against the Andrews Opera Company, seized the money in the box office and took possession of all the property of the company, and thus rendered it impossible for the company to further carry on its business.

It is due to Mrs. Rees to say that, although she had no money in bank with which to meet her check to the engineer, she had a cashier's check for a larger amount than the sum of the check she gave the engineer, which she intended depositing the next day to meet her check, but which she was prevented from doing before her check was dishonored by reason of what she claims to have been a trick played on her by George Andrews, in this: that a man she charges (but does not show) was a tool of said Andrews called at her house just as she was about to start to the bank to make the deposit, and told her to wait at home to see a man who was coming to the house to buy her furniture, and that by waiting for the supposed purchaser, who never arrived, she did not reach the bank until after her check was dishonored.

From October 2d to October 8th the theater was closed, but the Andrewses and King and Mrs. Rees were endeavoring to arrange their matters in some way. The only thing of value, outside of the property that had been seized under the attachment, that the company had, was the lease. This they tried to realize something from. It was proposed to incorporate a company and continue the business, but George Andrews would not consent. It was proposed to assign the lease to O. D. Woodward, so that performances could be given, and money raised to pay the actors and the creditors, and Butler consented to this, but George Andrews refused. In this emergency, Butler, from day to day, beginning on October 9, and continuing until October 22, 1901, granted to George Andrews separate daily licenses to give performances in the theater in consideration of the payment of $15 a night, and upon the express condition that it was to be a mere license, and not a lease. Under this arrangement George Andrews continued to give daily performances until restrained by the court in this case on October 22, 1901. On the 19th of October, 1901, Mrs. Rees instituted this action, making George Andrews, Edward M. Andrews, and C. W. King defendants. The petition alleges a partnership between plaintiff and defendants, entered into on August 2, 1901, for the purpose of giving performances at the Century Theater, and that such performances were given from September 9 to October 2, 1901; that, by the terms of the copartnership agreement, plaintiff was entitled to the exclusive use of the living rooms in the upper story of the building, but that, in violation of that agreement, the defendants took and retain possession thereof; that on October 7, 1901, George Andrews, for the purpose of defrauding plaintiff, entered into a corrupt agreement with Butler's agent, in pursuance whereof Andrews attempted to surrender possession of the theater to said agent, and afterwards, on the same day, and for the same purpose, said Andrews pretended to accept possession of the theater from said agent for himself personally, to the exclusion of the plaintiff; that the plaintiff was the treasurer, under bond, of the Andrews Opera Company, and entitled to the custody of all money, but that the company refused to allow her to have or receive such money; that, contrary to the articles of...