Shapiro v. Childs Co.

• Decision Date: 04 March 1929
• Citation: 17 S.W.2d 677,222 Mo.App. 1126
• Parties: SAM SHAPIRO, RESPONDENT, v. CHILDS COMPANY, APPELLANT. [*]
• Court: Kansas Court of Appeals

17 S.W.2d 677

222 Mo.App. 1126

SAM SHAPIRO, RESPONDENT, v. CHILDS COMPANY, APPELLANT. ^[*]

Court of Appeals of Missouri, Kansas City

March 4, 1929

Appeal from the Circuit Court of Jackson County.--Hon. Willard P Hall, Judge.

AFFIRMED.

Judgment reversed and remanded.

Trusty & Pugh for respondent.

Ringolsky Friedman, Boatwright & Jacobs for appellant.

LEE, C Barnett, C., concurs. Bland and Arnold, JJ., concur. Trimble, P. J., absent.

OPINION

LEE, C.

This is an action by lessee for a $ 3500 bonus claimed to be due from lessor under the terms of the lease, because of a termination thereof prior to the agreed maturity date. From a judgment in favor of plaintiff lessee, defendant lessor appeals.

Appellant Childs Company, a New York corporation (herein for convenience referred to as defendant), was holder of a long-time lease on the five-story building at 1117-1119 Walnut street, Kansas City, Missouri, and on May 23, 1922, subleased the second floor of the building to plaintiff for a Ladies Ready-to-Wear Clothing Store for a term ending July 31, 1930, at a gradually increasing monthly rental. The lease provided that the lessor might terminate same at any time before maturity if it should dispose of its own leasehold of the whole property, or should make a bona-fide lease for the entire building to one tenant; but this right was conditioned upon giving plaintiff six months' written notice, and upon the further condition of paying to plaintiff the sum of $ 3500 "when the premises are re-delivered under this paragraph."

In March, 1924, defendant assigned its leasehold in the whole building to the Columbia Realty Company, and served on plaintiff a written notice, which recited the fact of the plaintiff's lease, and continued:

"You Are Hereby Notified, that the undersigned do hereby terminate and cancel the said lease on October 1, 1924. The amount specified to be paid to you in the event of said termination, viz.: $ 3500, will be paid to you on said date in cash."

The notice then recited that it had disposed of its leasehold estate in the property, and that it was to give possession on March 31, 1924.

The Columbia Realty Company took possession of the property accordingly (subject to plaintiff's right to six months' possession of the second floor). At the same time, by agreement with the Childs Company, it placed $ 3500 in escrow in the Commerce Trust Company, with which to meet the bonus payment to plaintiff on October 1st. Thereafter the Childs Company appears to have had no further connection with the affair until just before the present suit was brought.

On May 9, 1924, the Columbia Realty Company, the new owner of the leasehold, as first party, entered into a written agreement with plaintiff Shapiro, as second party, which recited the existence of the lease, that first party desired to make certain improvements, betterments and alterations in the building, and that second party desired to permit same; and that "in consideration of the mutual benefits each to the other accruing by virtue of the provisions hereof, and of one dollar each to the other in hand paid" it was agreed as thereinafter set forth. Then followed a description of the proposed alterations according to identified architects plans, which included the installation of a sprinkler system (and as part of the plans, the installation of a new, modern plate-glass window front on plaintiff's second floor).

It further provided for the non-liability of first party for damages accruing to second party (plaintiff) in the work, and for the maintenance of a watchman when needed; for the use of second party's floor space as found necessary (for which second party would remove his property from such space as was desired), for the temporary suspension of elevator service as might be necessary, and that there should be no abatement or diminution of rent payable by plaintiff during the period.

It concluded with the following:

"(6) This agreement does not constitute any modification, change, alteration, diminution or enlargement of the said lease executed by second party, and Childs Company and assigned to first party, covering said second floor of said premises, but said lease shall be and remain in full force and effect as to all of its provisions and agreements, except that the provision on page 2 of said lease as to termination under certain conditions is hereby cancelled and struck out of said lease."

Plaintiff testified that in the negotiations toward the foregoing contract it was stated to him by Mr. Rieger, of the Columbia Realty Company, that "I (plaintiff) was going to get $ 3500 from Childs Company, and that I would get the space for the same rent under a new lease." Mr. Rieger denied remembrance of such a conversation.

Pursuant to this contract, the Columbia Realty Company proceeded to make the said improvements. At the trial plaintiff testified that he moved out in July to quarters on Broadway, where he conducted a wholesale business, and did not move in again until October 2nd, under his new arrangement with the Columbia Realty Company, having just installed new fixtures in the premises at a cost of $ 5000 for a retail business; and that he paid full contract rental for the intervening period. Defendant introduced evidence tending to show that plaintiff did not move out at all, and that he continued to transact business there all summer, and had in fact never at any time delivered up the property pursuant to the notice. At the close of the trial the court by instruction withdrew from the jury the issue of whether or not plaintiff vacated and moved out of the premises prior to October 2nd. There was no dispute as to the fact that Shapiro remained in possession after October 2nd under the same rentals as were provided in the old lease.

Plaintiff continued his retail store in the premises for some months, and then discontinued same there; and the place remained vacant for about six months, during which he continued to pay rent to Columbia Realty Company. On December 24, 1925, plaintiff subleased the premises to Pattison-McGrath Company for a term ending July 30, 1930 (the same maturity as the old), at the same monthly rental as was being then paid by plaintiff. In addition, the Pattison-McGrath Company agreed to pay plaintiff a bonus of $ 1500, in installments, and further agreed "to carry out all covenants and agreements of the original lease between the Childs Company, a New York corporation, lessor, and Sam Shapiro, the lessee." Pattison-McGrath were also given the use of certain fixtures and a partition.

Plaintiff testified that when he asked permission of the Columbia Realty Company to make this sub-lease that company "wouldn't give it to me unless I would release them from the $ 3500." However, having decided to their own satisfaction that permission from the Columbia Realty Company to make a sub-lease was not required, the parties proceeded to make it.

Plaintiff testified, also, that when he discontinued his retail business some six months prior to the Pattison-McGrath transaction, he had talked to Mr. Rieger, of the Columbia Realty Company, about then giving up his lease, and that Mr. Rieger "said he would release me of the lease if I would give up the $ 3500," which plaintiff refused to do.

Mr. Rieger testified that he did not make demand on the Commerce Trust Company for a return of the $ 3500 until October 1, 1924, and apparently did not then get it, if at all. It was still on deposit on December 12, 1924, when the bank wrote plaintiff that they understood the lease had not been canceled and asked authority to return the deposit to the Columbia Realty Company. On December 30, 1924, defendant Childs Company wrote plaintiff from New York, as follows:

"We regret very much that there has been any question as to the payment of the sum of $ 3500 by reason of notice served upon you to vacate the second floor of the above-captioned premises.

"As you know, when we disposed of this property to the Columbia Realty Co. it was part of our bargain of sale that they supply the money with which to cancel your lease and take title, subject to your lease, we having served the cancellation notice.

"We do not know here just why the Columbia Realty Co. do not wish to pay you the money, but understand indirectly it is because you have not vacated the premises under the terms of the notice. If you could send us your side of the story, we will endeavor to obtain from the Columbia Realty Co. its version of the affair and see if we cannot straighten this matter out.

"We, of course, have no interest in the matter at all except as the former lessees of the property and have so notified the Commerce Trust Co., but we feel if the money is to be paid out on our order that we should have the authorization of both the Columbia Realty Co. and yourself, instructing us to request the Commerce Trust Co. to pay over the money under its escrow agreement."

It is to be noted that defendant Childs Company did not then claim to have been party to any change in its contract rights and obligations. The present action was filed on January 16, 1925, at first against the Childs Company, the Commerce Trust Company and the Columbia Realty Company, but it was later dismissed as to the latter two defendants.

At the trial the defendant was permitted to introduce, over plaintiff's objection, the above-mentioned contract of May 9, 1924, between the Columbia Realty Company and plaintiff; and thereafter, over defendant's objection the plaintiff testified as to his conversations with Mr. Rieger to the effect that the contract should not affect plaintiff's right to the $ 3500. The court gave, among others, the following instructions, the giving of which is...