Shattlock Realty Co. v. Mays
| Citation | 63 S.W.2d 429,228 Mo.App. 1108 |
| Parties | SHATTLOCK REALTY COMPANY, A CORPORATION (COMPLAINANT), RESPONDENT, v. ED. MAYS (DEFENDANT), APPELLANT |
| Decision Date | 03 October 1933 |
| Court | Court of Appeal of Missouri (US) |
Appeal from the Circuit Court of the City of St. Louis.--Hon. H. A Hamilton, Judge.
REMANDED.
Affirmed and remanded.
Charles G. Revelle and Courtney S. Goodman for appellant.
(1) The court should have sustained appellant's demurrer to the evidence, offered at the close of respondent's case, for the reason that respondent failed to offer any evidence whatsoever to show that the appellant unlawfully detained the premises in question after the termination of the time for which they were demised to him, but, on the contrary, the evidence construed in the light most favorable to respondent showed that the premises had been surrendered by appellant to respondent, and that the latter resumed possession of the premises upon the forfeiture and cancellation of appellant's lease. Mining Company v. Hodge, 185 Mo.App. 138; Mullaney v. McReynolds, 170 Mo.App 406; Milem v. Freeman, 136 Mo.App. 106, l. c. 118; Churchill v. Lammers, 60 Mo.App. 244; Robertson Bros. v. Winslow Bros., 99 Mo.App. 546; 35 C. J. 1084 1086, 1089; Griffith v. Continental Casualty Co. (Mo.), 253 S.W. 1043; Downs v. Horton (Mo.), 230 S.W. 103, l. c. 108; Sec. 2447, R. S. 1929. (2) The court erred in sustaining respondent's motion for new trial, for the reasons that (a) there was no substantial evidence to support a verdict for respondent. Alexander v. St. Louis San Francisco Ry. Co. (Mo. App.), 4 S.W.2d 888; J. A. Schaefer Const. Co. v. Jones (Mo. App.), 3 S.W.2d 286; Gottschalk v. Wells (Mo.), 274 S.W. 399, l. c. 401; Milem v. Freeman, 136 Mo.App. 106, l. c. 118; Griffith v. Continental Casualty Co. (Mo.), 253 S.W. 1043; Downs v. Horton (Mo.), 230 S.W. 103, l. c. 108. (b) The evidence offered by respondent defeats its own right of recovery and disproves its own case, and appellant can take advantage thereof. Klein v. U. S. Casualty Co. (Mo. App.), 295 S.W. 833; Sissel v. Railroad, 214 Mo. 515, l. c. 526, 527.
Jeffries, Simpson & Plummer for respondent.
(1) The court's ruling sustaining plaintiff's motion for new trial on the ground that the verdict was against the weight of the evidence must be sustained if supported by substantial evidence which would have authorize a verdict for plaintiff. Casey v. Transit Co., 186 Mo. 229, l. c. 232; Hoepper v. Southern Hotel Co., 142 Mo. 378, l. c. 387; Kuenzel v. Stevens, 155 Mo. 280, l. c. 285; Roberts v. Telephone Co., 166 Mo. 370, l. c. 385; Herndon v. Lewis, 175 Mo. 116, l. c. 125; Ottomeyer v. Pritchett, 178 Mo. 160, l. c. 165; Warner v. Railroad, 178 Mo. 125, l. c. 129; Bank v. Wood, 124 Mo. 72, l. c. 77. (2) Defendant did not establish his defense that the possession of the premises was surrendered and such possession retaken by the plaintiff, so as to absolve defendant from being guilty of an unlawful detainer thereof. D. A. Schulte, Inc., v. Haas, 287 S.W. 816, l. c. 818; Sander v. Commission Co., 121 Mo.App. 293, l. c. 298; Sessinghaus v. Knocke, 127 Mo.App. 300, l. c. 303; Huling v. Roll, 43 Mo.App. 234, l. c. 238; Tucker v. McClenney, 103 Mo.App. 318, l. c. 323. (3) Prejudicial error having been committed against respondent in giving erroneous instructions to the jury at the request of appellant, such error may be urged by respondent in support of the court's ruling granting it a new trial. Higgins v. Higgins, 243 Mo. 164, l. c. 171; Savings Bank v. Denker, 275 Mo. 607, l. c. 621.
This is an action in unlawful detainer brought by respondent, hereinafter called complainant, against appellant, hereinafter called defendant. A complaint in proper form was filed by complainant on January 6, 1932, before a justice of the peace in the City of St. Louis. A trial was had on January 13, 1932, and on January 15, 1932, the justice of the peace found that the property described in the complaint had been unlawfully detained by defendant. Judgment for complainant was rendered, it being ordered thereby that complainant have restitution of the property and also have judgment against defendant for $ 6,355.54, double the sum found by the justice of the peace for complainant's damages, and judgment against defendant at the rate of $ 3,666.66 per month, double the sum found by the justice of the peace for monthly rents and profits, from January 15, 1932, the date of said judgment, until restitution be made, and for costs.
Defendant duly appealed to the Circuit Court of the City of St. Louis, where, on March 14 and 15, 1932, the case was tried before the court and a jury, resulting in a verdict in which the jury found the defendant not guilty in manner and form as charged in the complaint. In due time complainant filed its motion for a new trial, which was sustained by the court on the ground that the verdict was against the weight of the evidence. Defendant brings the case to this court by appeal.
The property involved is located on the northwest corner of Grand Boulevard and Olive Streets, in the City of St. Louis, Missouri, and consisted of several stores in the building known as Beers Hotel. The stores all fronted on Grand Boulevard. The evidence disclosed that defendant leased the premises in question from complainant under a written lease dated March 27, 1925, for a period of twelve years from August 1, 1925. The rental provided for the lease was $ 20,000 per annum, payable monthly, for the first six years of the term, and $ 22,000 per annum, payable monthly, for the remaining six years.
Among the provisions of the lease appears the following:
"At the expiration of this lease or the determination of the term hereby created, the said tenements and premises are to be surrendered to the lessor, its successors or assigns, in as good condition as when received, excepting natural wear and tear or the effects of accidental fire or windstorm, cyclone or other acts of God."
It was also provided in the lease that:
It was also further provided in the lease as follows:
"Any failure to pay each month's rent within fifteen days after the due date thereof, or to keep and perform any of the covenants and agreements herein contained shall produce a forfeiture of this lease if so determined by the lessor or its successors or assigns, without further notice or demand."
After the execution of the lease defendant was given possession of the premises and in turn he subleased the several stores to various persons and firms as he was permitted to do under the terms of his lease with complainant. The premises numbered 505 North Grand Boulevard were sublet by defendant to the Grand National Bank. Prior to the institution of the unlawful detainer suit, however, the Grand National Bank, of which defendant was an officer, had moved out of the premises and at the time of the suit this part of the premises was occupied by the Fair Stores. The store numbered 509 North Grand Boulevard was occupied by J. Gwynn Gough, who conducted a haberdashery therein. No. 511 North Grand Boulevard was occupied by Erker Bros. Optical Company. No. 513 North Grand Boulevard was occupied by Sugar Bowl Candy Company. No. 515 North Grand Boulevard was occupied by Famous Cleaning and Pressing Company and C. & K. Hamburger Stand, both of which establishments were owned by William Kocorakis and Christ Folias. It was conceded that these various tenants were in possession of their respective premises during the month of October, 1931, under their several subleases or arrangements with defendant.
On November 24, 1931, Edward Miller, vice-president of the complainant company, served on defendant personally, a notice to the effect that defendant was in default under the lease dated March 27, 1925, for failure to pay the rent for the months of October and November, 1931, totaling $ 3,666.66 for the two months. It was stated in the notice that the rental for each of the said months was more than fifteen days past due. The notice called defendant's attention to the forfeiture provisions of the lease, and contained a declaration that complainant thereby exercised its privilege of declaring the lease forfeited. The notice requested that defendant, for himself and on behalf of his subtenants, immediately surrender possession of the premises.
On the same day that the above mentioned notice was served on defendant, Mr. Miller, complainant's vice-president, also served a notice on each of defendant's subtenants. These notices were to the effect that the lease complainant had with defendant had been declared forfeited and that they, the tenants, were not entitled to continue in the possession of their respective premises under any arrangement they might have theretofore made with defendant. The subtenants were requested in the notices to surrender immediately to complainant, possession of their respective premises, and it was stated therein that on their failure to do so, unlawful detainer proceedings would be instituted against them.
It is conceded by defendant that complainant had the right to cancel and declare the lease forfeited and that the notices referred to were served upon defendant and upon the subtenants on ...
To continue reading
Request your trial