Reinhardt v. Holmes

• Decision Date: 04 April 1910
• Citation: 127 S.W. 611,143 Mo. App. 212
• Parties: REINHARDT et al. v. HOLMES et al.
• Court: Missouri Court of Appeals

127 S.W. 611

143 Mo. App. 212

REINHARDT et al. v. HOLMES et al.

Kansas City Court of Appeals. Missouri.

April 4, 1910.

Rehearing Denied May 2, 1910.

1. LANDLORD AND TENANT (§ 167) — PREMISES — INJURIES FROM DANGEROUS WALL — LIABILITY OF LANDLORD.

Where a lessor voluntarily and with at least the tacit consent of his tenant entered into possession of the demised premises, and assumed charge of a dangerous wall, he was charged with the performance of the duty owed to third persons, and, being negligent in the discharge of that duty, he will not be heard to repudiate his own acts and deny responsibility for them.

2. PARTY WALLS (§ 9) — AGREEMENT — COVENANTS — CONSTRUCTION.

Where a party wall agreement expressly provides that the covenant thereof shall run with the land, it will be construed as running with and charging the land, the effect of the covenant being to grant or create an interest in the premises.

3. PARTY WALLS (§ 1) — TENANTS IN COMMON — OWNER IN SEVERALTY — CROSS-EASEMENTS.

Where the owner of land purchased a half interest in a wall erected by an adjoining landowner, the parties were not tenants in common, but each became the owners in severalty of their own part of the wall and the land on which it stood, the title of each being qualified by a cross-easement in favor of the other.

4. LANDLORD AND TENANT (§ 37) — LEASE — CONSTRUCTION — INTENTION OF PARTIES.

That which passes under a lease depends upon the intention of the parties, to be ascertained from the instrument itself, and the character and surroundings of the leased premises are also important factors, to be considered on the extent of the demise as intended by the parties.

5. PARTY WALLS (§ 8) — WRECK OF WALL — LIABILITY TO TENANT.

Where the owners of a party wall which extended three stories above one of the buildings allowed it to stand after a fire as to the upper part of the wall, the relation of the tenants in the lower building to each of the owners was that of third persons, and as the owners negligently suffered a nuisance to be created on their premises and maintained it, the tenants have a cause of action against both owners for damages to a stock of goods caused by the falling of the wall.

Appeal from Circuit Court, Jackson County; E. R. Morrison, Special Judge.

Action by John J. Reinhardt and others against Walton H. Holmes and another. Judgment for plaintiffs, and defendants appeal. Affirmed.

D. B. Holmes and H. C. Page, for appellant Walton H. Holmes, John A. Eaton, E. H. McVey, and J. D. McCue, for appellant Swentzel. Jamison, Elliott & Ostergard, for respondents.

JOHNSON, J.

Plaintiffs, tenants of defendant Swentzel, sued their landlord and defendant Holmes for damages to a stock of groceries caused by the fall of a party wall owned by defendants who are adjoining property owners. A trial to a jury resulted in a verdict and judgment against both defendants in the sum of $5,000. Defendants appealed.

Swentzel owned a two-story brick business house in Kansas City, and Holmes owned a five-story brick business house on the lot adjoining on the south. A party wall dividing the buildings was built on the line so that one-half of the wall was on the land of each owner. This wall was built under oral agreement between Holmes and Mrs. Evans who then owned the lot afterward conveyed to Swentzel, but in 1889, Holmes and Mrs. Evans, together with their respective consorts, entered into a written contract which referred not only to the wall we have mentioned, but also to the party wall on the south side of the Holmes building. Mrs. Evans also owned the lot adjoining the Holmes building on the south. The contract, which was acknowledged and recorded, recited "that it was understood and agreed (in the oral contract) that such walls should be party walls, and that said Evans should pay to said Holmes part of the cost thereof, and thereupon become one-half owner of each of such walls, and entitled to use them or either of them as party walls in any building now upon said land or hereafter to be erected thereon; that the amount so to be paid by said Evans to said Holmes has been ascertained and agreed upon to be thirty-two hundred and seventy-five dollars on account of each wall, and said Evans has accordingly paid to said Holmes sixty-five hundred and fifty dollars." The contract then provided "that each of said walls shall be a party wall; * * * that either party shall have the right to run up or build said walls higher than they are now * * * upon the total destruction of either of said walls by fire or accident; * * * this contract shall terminate as to the wall so destroyed * * * such repairs as are necessary shall be done * * * by either party, and one half the cost shall be paid by one side, and the other half by the other side, namely one-half by Holmes or those holding under him, and one-half by Evans or those holding under her. All covenants herein made and rights granted shall run with the land, and things required to be done by and rights granted to either party thereto shall be done by and inure to the future owner or owners of the land upon which the walls stand. * * * This contract shall be considered and treated as a separate and distinct contract affecting each wall separately," etc.

Mrs. Evans sold and conveyed the lot north of the Holmes building to Swentzel, and in 1902 Swentzel erected the two-story building, and leased it for a term of five years to Alfred Holtman. The lease recited that the lessor "is the owner of lot 115 in block 8, McGee's addition to Kansas City, and proposes to erect thereon a two-story brick building," and provides for the leasing of the building when completed on terms and conditions, among which were the following: "First. That if it is decided later on to add upper stories to the building, the said Holtman will make no claim for compensation or damages for any inconvenience or annoyance which may be caused by the building of such additional stories. Second. That the said Holtman will undertake to work the freight elevator at his own risk and cost. Third. That the said Holtman will supply his own heat. Fourth. That the said Swentzel is to have the right to put in a passenger elevator, should one be desired in the future, without paying compensation to the tenant in respect of the space occupied, or in consequence of inconvenience or damage to the tenant during the erection of such elevator. It is further agreed by the said Holtman that he will repair all injuries or damages done by him to the premises during his occupancy or pay for the same; that all of his property situated on said premises, whether subject to legal exemption or not, shall be bound and subject to a lien for and securing the payment of said rents and damages; that he will take good care of the building and premises, prevent waste, keep them free from filth, from danger of fire or any nuisance, and from all uses forbidden in any fire insurance policies issued thereon, defend and indemnify the said Swentzel from all damages and charges for such; that the building and premises shall be kept clean, fairly treated and left so."

In the following year, Holtman sublet the premises to plaintiffs on terms that bound plaintiffs to all the terms and conditions of the lease which was in full force at the time of the injury which occurred September 16, 1905. In 1902, Holmes leased his five-story building to a transfer and storage company for a term of five years under a written lease, which required the lessee to "repair all injuries or damages done to the premises during its occupancy," and to "take good care of the building and premises, and keep them free from filth, from danger of fire or any nuisance, and protect and defend the owner from any...