Sherman Inv. Co. v. Sheehan

• Decision Date: 18 February 1947
• Docket Number: No. 27054.,27054.
• Citation: Sherman Inv. Co. v. Sheehan, 199 S.W.2d 922 (Mo. App. 1947)
• Parties: SHERMAN INV. CO. v. SHEEHAN.
• Court: Missouri Court of Appeals

199 S.W.2d 922

SHERMAN INV. CO. v.SHEEHAN.

No. 27054.

St. Louis Court of Appeals. Missouri.

February 18, 1947.

Appeal from Circuit Court, St. Louis County; John A. Witthaus, Judge.

"Not to be reported in State Reports."

Suit for rent by the Sherman Investment Company, a corporation, against Ethel Sheehan.The jury returned a verdict for the defendant, and the plaintiff moved for a new trial.From an order sustaining plaintiff's motion for a new trial, the defendant appeals.

Order affirmed and cause remanded for further proceedings.

Taylor R. Young and Alvin Goldman, both of St. Louis, for appellant.

Malcolm I. Frank, William M. Fitch and Geo. O. Durham, all of St. Louis, for respondent.

HUGHES, Presiding Judge.

This is a suit for rent.The petition, omitting the formal parts, is as follows:

"Plaintiff further states that the defendant, Ethel Sheehan, on the 15th day of September, 1939, rented two apartments from the plaintiff, #604 and #605, and was advised by the rental manager of plaintiff that the rent was $47.50 per month each; that on said day she moved into said apartments together with her family and occupied the same.Plaintiff states that the defendant vacated apartment #605 on August 1, 1940, and vacated apartment #604 on July 1, 1940.Plaintiff further states that the defendant failed to pay the monthly rent for either of said apartments during the time she occupied the same; that said monthly rental was requested of her, and that she has failed and refused to pay the same and still refuses to do so; that the defendant is indebted to the plaintiff said rent in the amount of $950.00, and that the following is a true and correct account of the rent due on said apartments to the plaintiff.

"To rent — Apartment #605 — Sherman
                   Apartments 6188 McPherson
                   Ave. 9/15/39- 8/1/40 (10
                   1/2 months) @ $47.50 per
                   month                                         $498.75
                "To rent — Apartment #604 — Sherman
                   Apartments 6188 McPherson
                   Ave. 9/15/39- 7/1/40 (9
                   1/2 months) @ $47.50 per
                   month                                          451.25
                                                                 ________
                                                                 $950.00
                

"Wherefore, the premises considered, plaintiff prays judgment against the defendant in the sum of Nine Hundred and Fifty Dollars ($950.00) together with its costs herein expended."

The answer, other than an admission that plaintiff is the owner of the apartment building, and a general denial, contains an allegation as follows:

"III.

"Admits that defendant and her family did move into said apartments September 15, 1939, at the special instance and request of the President of Plaintiff, Walter Sheehan, under circumstances from which an implied contract was entered into between plaintiff, its agents and servants, and defendant that the defendant would not be required to pay any rent for the use and occupancy of said two apartments until such time as she was able to find other living quarters for herself and her family.Said circumstances being that the plaintiff is a family owned corporation in which the said Walter Sheehan, his brother, Joe Sheehan, and another brotherJerry Sheehan, deceased husband of defendant, were the owners, and any member of said family was entitled by consent of said members of said family to occupy any part of said premises temporarily without the payment of any rent, and this defendant states that her occupancy of said apartments were of a temporary nature only, and plaintiff never intended to charge her for the use and occupancy of said apartments."

The reply is a denial of every allegation set forth in paragraph III of the answer.

The case was tried before a judge and jury and resulted in a verdict in favor of the defendant.A timely motion for new trial was filed by plaintiff and was afterwards sustained because the court deemed defendant's instruction No. 3 to be erroneous.Thereupon defendant appealed from the order sustaining plaintiff's motion for a new trial.

The plaintiff is a corporation, and is the owner of the Sherman Apartment Building.The entire capital stock of the corporation belonged to the Sheehan family, and in 1939 the officers and stockholders of the corporation were Jeremiah, Walter F., and Joseph Sheehan.Jeremiah was president, Joseph was secretary, and Walter F. was vice-president, general agent and manager of the Sherman Apartments.Jeremiah Sheehan died in 1939 and thereafter Walter F. Sheehan acted as president of the corporation.Mrs. Nellie Miller was employed as rental manager.

In addition to the above conceded facts the plaintiff's evidence was to the effect that after the death of Jeremiah Sheehan in the spring of 1939, his widow, the defendant here, contemplated a trip with her four children to Wisconsin for a rest, and asked Walter F. Sheehan if upon her return she could occupy an apartment at the Sherman Apartments, and he told her to write him when she was ready to come home and he would take care of her; that plaintiff did write to Walter F. Sheehan that she would return September 15th, and would like to have an apartment in another building of which his company was agent, and that he replied that there was no apartment available in that building, and the only apartments they had that might be available would be the two apartments in the Sherman Apartments.That Walter F. Sheehan was later advised by Mrs. Miller, the rent manager, that defendant had taken possession of the two apartments in the Sherman Apartment Building.Walter F. Sheehan testified that as agent for the building his company had never given him authority to let anybody, relative, stockholders or strangers, rent an apartment free of charge.

There was little controversy as to the actual facts.Defendant's evidence was to the effect that she thought that by reason of her deceased husband being a stockholder that she would be entitled to a home in the apartment until she was settled; that she understood that other members of the Sheehan family had at times occupied the apartments; that she was never asked for rent, but that if Walter F. Sheehan had billed her for rent she would have paid it; that no demand was ever made of her for rent until over two years later; that when she moved into the apartments she did not know how long she would stay, and Walter never talked it over with her or mentioned it.

There was a mass of testimony, but the foregoing synopsis of the pleadings and facts is sufficient to show what the issues were.Defendant's instruction No. 3, which the trial court afterwards, on motion of plaintiff for a new trial, found to be reroneous and prejudicial, is as follows:

"The Court instructs the jury that if they should find and believe from the evidence that during the late spring or early summer of 1939, defendant, Ethel Sheehan, and her children went to Ephraim, Wisconsin, to spend their summer vacation, and before leaving their home in St. Louis, that Walter Sheehan stated to Ethel Sheehan, the defendant that whenever defendant and her family was desirous of returning to St. Louis from their said vacation, he would arrange to permit the defendant and her family to be housed in said apartment building temporarily; and if you further find that said general manager of said apartment building did not intend to charge defendant for the use and occupancy of apartments...