Rosenberg v. Gas Service Co., 23640

• Decision Date: 03 December 1962
• Docket Number: No. 23640,23640
• Citation: Rosenberg v. Gas Service Co., 363 S.W.2d 20 (Mo. App. 1962)
• Parties: Phineas ROSENBERG, Plaintiff-Appellant, v. GAS SERVICE COMPANY, a Missouri Corporation, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 20

363 S.W.2d 20

Phineas ROSENBERG, Plaintiff-Appellant, v. GAS SERVICE COMPANY, a Missouri Corporation, Defendant-Respondent.

No. 23640.

Kansas City Court of Appeals, Missouri.

Dec. 3, 1962.

Joe E. Burris, Kansas City, for appellant.

Douglas Stripp, Clayton R. Smalley, Kansas City, for respondent, Watson, Ess, Marshall & Enggas, Kansas City, of counsel.

DEW, Special Commissioner.

The plaintiff (appellant) sued defendant (respondent) to recover rent in the sum of $2600 alleged to be due and unpaid. The defendant denied the claim and filed a counterclaim for $400 alleged to have been paid as rent to plaintiff through inadvertence and mistake. At the close of plaintiff's evidence the court, on defendant's motion, directed a verdict for defendant on plaintiff's petition. The court thereupon further ordered that such judgment on the petition be deemed final for purposes of appeal. In its statement to counsel, to the jury and for the record, the court then, upon its own motion, announced that it declared a mistrial of the counterclaim and would require a separate trial thereof, and discharged the jury. No objections were made by either party to the order of the separate trial of the counterclaim. Upon the denial of the motion of the plaintiff for a new trial on his petition, he prosecuted this appeal.

The first petition, filed October 14, 1957, was in the conventional form for an action to recover rent under a written lease. It pleaded a lease in writing beginning May 1, 1951, expiring at the end of five years thereafter, namely, April 30, 1956, in which lease the plaintiff reserved a rental rate of $50 per month and, among other provisions, the lease stated: 'The lessee is granted an option of an additional five-year term upon the same terms and conditions hereof at a rental to be fixed at the time said option is exercised, said option to be exercised on or before December 15, 1955'. (Italics supplied). The petition alleged that defendant had refused to pay the agreed rental for the months of January to October, 1956, inclusive, and prayed judgment for $500 therefor.

On May 31, 1961, the plaintiff filed a supplemental petition to recover additional installments of rent, and asked judgment for the rent for the last fifty-two months of the alleged renewal period, a total sum of $2600 with interest on each installment due.

The defendant's answer admitted the lease referred to in plaintiff's petition; challenged the sufficiency of the petition to state a cause of action; admitted refusal to pay the rental installments claimed to be due; declared that the lease had terminated on April 30, 1956; and averred tht the petition is based on an alleged lease for an additional term for which there was no agreement in writing signed by the defendant or by any person authorized to sign it, and which is therefore void under the Statute of Frauds, Section 432.010 RSMo 1959, V.A.M.S. The answer attributed plaintiff's damages, if any, to his failure to rerent or to sell and premises in question.

In its counterclaim defendant stated that the lease terminated on April 30, 1956; denied having ever exercised the option for renewal; alleged that through inadvertence and mistake it sent to plaintiff eight checks, later cashed by him, for $50 each before defendant discovered that the lease had expired, whereby plaintiff had been unjustly enriched and should restore to defendant such remittances in the total sum of $400, for which defendant prayed judgment, with interest and costs.

Plaintiff's reply to the counterclaim denied its sufficiency to state a cause of action; admitted the lease as pleaded; admitted the receipt of the rental checks from defendant since the date of the expiration of the lease; denied that such payments had been made through inadvertence and mistake; averred that the checks were received in good faith as in payment of rent due under the renewal and alleged that defendant is estopped under the circumstances from asserting that the lease was not extended for a period of five years.

The parties have agreed in their briefs that the statement of facts as related in plaintiff's brief (with one exception noted later) is substantially correct, which statement, with deletion of page references to the transcript and exhibit numbers, is as follows:

'Plaintiff was the only witness to testify in the case. Through him came all the evidence offered at the trial in support of his case, except for such facts as were admitted by the Answer.

'By Paragraph 2 of its Amended Answer defendant admits the making of the lease attached to and made a part of plaintiff's petition as Exhibit 'A'. The lease is also in evidence as plaintiff's Exhibit 1. The initial period of the lease was for five (5) years, beginning May 1, 1951, and ending April 30, 1953. That lease contains this clause--'Lessee is granted an option of an additional five (5) year term upon same terms and conditions hereof at a rental to be fixed at the time said option is exercised, said option to be exercised on or before December 15, 1955'.

'Rent upon the lease was paid by defendant's checks. To each check sent plaintiff during the initial five (5) year term there was attached a voucher which recited in pertinent part (1) defendant's name (2) what the check was for i. e. rental of Parking Lot (3) location by legal description of the rental property--which was the property described in the lease plaintiff's Exhibit 1 (4) the period for which the check was to pay rent.

'Sometime before December, 1955, plaintiff talked by telephone with Fred Olney. Fred Olney is the superintendent of defendant's garage at its plant on Gills Street and is the man with whom plaintiff talked about the lease back in 1951. In the 1955 telephone conversation with Fred Olney, Mr. Olney said 'This is Fred Olney. I talked with you about the lease at the beginning and the time is about to run out and I am the superintendent at the Gillis Plant'. Mr. Olney identified himself to plaintiff as the same person that had talked to plaintiff when the lease was originally made. 'He stated that the lease was getting close to the end of the Five (5) year period and they wanted to talk about the option and wanted to talk about it according to the terms of the lease'. Olney said: 'The lease says that the rent was to be agreed upon. What do you say to that?' After some discussion as to the amount of rent plaintiff said to Olney: 'If you have done all that, let's let the rent stand as it is'. Olney then said: 'All right. We will go ahead and exercise the option then' and plaintiff said: 'All right'. That day or the next plaintiff got another telephone call from someone who said he was in the General Superintendent's office and he said that Mr. Olney had reported to them that he had agreed on the option and at the same rental and asked plaintiff if he wanted a letter. Plaintiff said to him: 'I don't need a letter. The lease don't call for it. The Gas Company's word is good enough for me. Just send your check and you've got that done'. Plaintiff otherwise identified Fred Olney as the representative of defendant with whom he initially negotiated the lease and the party to whom he talked about it. Following April 30, 1956, the expiration date of the initial lease term, plaintiff received from defendant each month beginning with May, 1956, through January, 1957, a check in the amount of Fifty ($50.00) Dollars to which was attached vouchers reciting that the check was for rent upon the property described in the lease for each respective month. Payment on the January, 1957, check was stopped at defendant's bank.

'Plaintiff during the period when the checks were being sent to him by defendant did not have any arrangement with defendant whereby its checks would be sent to him except for rent upon the property described in the vouchers and in the lease. These checks were accepted by plaintiff and deposited to his bank account.

'After notice that the check in payment of January, 1957, rent had been stopped plaintiff called the defendant's office and talked with a Mr. Post who referred him to the legal department. Thereafter plaintiff received from defendant through the mail two letters from its attorney dated January 31, 1957, stating among other things that defendant had vacated plaintiff's property on April 30, 1956, by removing all its equipment therefrom and posting 'No Trespassing' signs and that no one at the company is known to have renewed said leasehold arrangement for an additional term and otherwise disclaiming any renewal of the lease. At that time Mr. Olney was either incompetent or dead, because counsel for defendant stated at the trial as a ground of objection to a portion of plaintiff's testimony--'Mr. Olney is incompetent as a witness and under the so-called dead-man's statute, it is my understanding of the law that the incompetency of the agent or the death of the agent of a party disqualifies the other party'. Prior to receipt of these letters plaintiff had no notice from defendant that it claimed to have vacated his property. Following receipt of these letters plaintiff went to see the property which he had not done between April 30, 1956, and January 31, 1957. Upon this visit he found the property had a wire fence around it with two entrances. Hung on a chain across one entrance was a sign saying 'Private Property, No Trespassing, Gas Service Company' or words to that effect. There was nothing at that time of any kind on the property except the fence and the signs. Plaintiff received no rent after December 1956. After receipt of the January 31, 1957, letters plaintiff talked to one real estate agent about seeing if he couldn't get a tenant for the property.

'At the close of plaintiff's case defendant made Motion for Directed Verdict asserting four grounds therefor. This motion was granted upon grounds 1 and 4.

'Ground 1 was: 'because under the evidence the Statute of Frauds bars plaintif...