Scholtz v. Northwestern Mut. Life Ins. Co.

• Decision Date: 13 March 1900
• Docket Number: 1,255.
• Citation: 100 F. 573
• Parties: SCHOLTZ v. NORTHWESTERN MUT. LIFE INS. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

100 F. 573

SCHOLTZ v. NORTHWESTERN MUT. LIFE INS. CO.

No. 1,255.

United States Court of Appeals, Eighth Circuit.

March 13, 1900

This action was brought by the Northwestern Mutual Life Insurance Company, the defendant in error, against Edmund L. Scholtz the plaintiff in error, and William H. Hunter, to recover damages for the alleged breach of an executory agreement to enter into a lease. The contract sued upon was as follows:

'This agreement, by and between the Northwestern Mutual Life Insurance Company, by Samuel C. Adams, agent, of the first part, and E. L. Scholtz and W. H. Hunter, parties of the second part, witnesseth, that the said party of the first part, in consideration of the sum of seven hundred and fifty (750) dollars, the receipt whereof is hereby acknowledged, and in consideration of the agreement of the parties of the second part hereinafter set forth, covenants and agrees to lease to the parties of the second part that certain storeroom and basement in the city of Denver, on the corner of Curtis and Sixteenth streets, in the Tabor Opera-House Block (including that part of said storeroom now occupied as a cigar store), for the term of three (3) years from the thirty-first day of May, 1897, at a monthly rental, payable monthly in advance, for the first year of seven hundred and fifty (750) dollars per month, for the second year of eight hundred (800) dollars per month, and for the third year of eight hundred and fifty (850) dollars per month; said lease to be in the usual form to use in the city of Denver, and the said above-mentioned payment of seven hundred and fifty (750) dollars is to be regarded as the rent for the first month (being the month of June 1897). Said second parties are to have the right to make such alterations and repairs in said building as they see fit,-- not, however, without first submitting the same to the said company or its agent, and obtaining their or his consent therefor; but all such repairs and alterations are to be at the sole expense of the said parties of the second part, without any cost or liability to the said party of the first part. Said party of the first part agrees to pay the water rate for the said leased premises. And the said party of the first part will furnish steam heat for said room free of expense to the said parties of the second part. Light to be at the charge of the parties of the second part. And the parties of the second part, in consideration of the premises and of the agreements of the party of the first part, hereby agree to rent said premises at the above rate and on the above terms of the said party of the first part, and to enter into a lease as above set forth for such purpose.

'The Northwestern Mutual Life Ins. Co., 'By Sam'l C. Adams, Agt. 'W. H. Hunter. 'E. L. Scholtz.'

In May, 1897, shortly after the execution of the foregoing agreement, a lease was prepared, and submitted to Scholtz & Hunter for their signature. No objection was made to the form of the lease, but they delayed signing the same; and on or about July 7, 1897, they declined to enter into the lease, giving as a reason for such refusal that they could not get money to make the alterations in the leased premises which they had designed to make. A portion of the premises described in the aforesaid agreement was occupied by a tenant at the time the aforesaid agreement was executed, and on July 29, 1897, Scholtz & Hunter gave to the agent of the plaintiff company written authority to collect the rent thereof for the month of July, 'and to credit the same on our rent of store, No. 1000 Sixteenth street, for that month. ' The trial resulted in a judgment in favor of the plaintiff below in the sum of $2,970, to reverse which the present writ of error is brought.

Henry J. O'Bryan (J. Grattan O'Bryan, on the brief), for plaintiff in error.

John H. Denison (Ralph Talbot and William H. Wadley, on the brief), for defendant in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

THAYER Circuit Judge, after stating the case as above, .

The principal contention of the plaintiff in error, who was a defendant below, is that the agreement above recited does not show that the minds of the contracting parties had met as to all the terms of the lease, and that the agreement is for that reason insufficient to satisfy the statute of frauds. This contention is based entirely on the ground that the agreement contains the clause, 'Said lease to be in the usual form in use in the city of Denver,' and the further clause, 'Said second parties are to have the right to make such alterations and repairs in said building as they see fit,-- not, however, without first submitting the same to said company or its agent, and obtaining their or his consent therefor. ' It may be conceded that an agreement to enter into a lease will neither be enforced in equity nor at law if it appears from the face of the agreement that any of the terms of the lease, no matter how unimportant they may seem to be, are left open to be settled by future conferences between the lessor and lessee. In such cases there is no complete agreement; the minds of the parties have not fully met; and until they...