Smith v. Greenstone

• Decision Date: 11 November 1918
• Docket Number: No. 12488.,12488.
• Citation: 208 S.W. 628
• Parties: SMITH v. GREENSTONE.
• Court: Missouri Court of Appeals

208 S.W. 628

SMITH v. GREENSTONE.

No. 12488.

Kansas City Court of Appeals. Missouri.

November 11, 1918.

Appeal from Circuit Court, Jackson County; Daniel B. Bird, Judge.

"Not to be officially reported."

Action by Richard Smith against Joseph Greenstone. From a judgment for defendant, plaintiff appeals. Affirmed.

Edward B. Naber and R. J. Smith, both of Kansas City, for appellant.

I. J. Ringolsky and M. L. Friedman, both of Kansas City, for respondent.

TRIMBLE, J.

Appellant, by written contract, leased defendant the first floor storeroom of a building at 713 Main street, Kansas City, Mo., for five years from June 1910, at a rental of $150 per month payable monthly in advance. Here the defendant conducted a retail millinery business, and his employés and customers were mostly women. The lease permitted defendant to subrent the storeroom upon plaintiff's giving written consent, but defendant's obligation to pay rent did not thereby cease.

In November, 1912, defendant's business was sold to one Romm, and, pursuant to the terms of the lease; defendant sublet the storeroom to him; and became his employé. Romm paid the rent to plaintiff up to July 1, 1913, but removed from the premises on June 30th.

This suit was brought for 16 months' rent accruing from July 1, 1913. The jury returned a verdict for defendant, and plaintiff has appealed.

The answer admitted the lease and the failure to pay the rent sued for, and set up a constructive eviction, and possibly other defenses not necessary to notice now. Under this answer, the defendant had the burden of proof and was allowed to open and close. In other words, as to the only contested issue in the case, defendant occupied the position of a plaintiff and plaintiff assumed that of a defendant. Strictly speaking, the first point raised is, not that there is no substantial evidence to support the verdict, but that the verdict and judgment are against the weight of the evidence. Appellant, in order to sustain the point made, reviews the evidence, takes into consideration that offered by plaintiff to contradict and offset the defense, and compares plaintiff's evidence with that of defendant's. But we cannot pass upon the weight of the evidence; and, in determining the question whether there was any substantial evidence to support the defense, we cannot consider any of plaintiff's evidence tending to contradict that of defendant's.

The evidence offered by defendant was of the kind and character required by the law to support such a defense, and, had the point been that there was no substantial evidence to sustain the verdict, still plaintiff would hardly be in a position to maintain that claim now, since neither at the close of defendant's evidence, nor at the close of all the evidence, nor at any other time, did he ask a demurrer to defendant's evidence. Without making any such request, appellant joined with respondent in submitting the case to the jury and asked and obtained instructions on the theory that there was an issue for the jury to determine. He is therefore not in a position now to claim that the evidence created no such issue. Hansen v. Boyd, 161 U. S. 397, 402, 16 Sup. Ct. 571, 40 L. Ed. 746; Kenefick-Hammon Co. v. Norwich, etc., Ins. Co., 205 Mo. 294, 312, 103 S. W. 957; Boone County Lumber Co. v. Niedermeyer, 187 Mo. App. 180, 186, 173 S. W. 57; Heller v. Ferguson, 189 Mo. App. 484, 492, 176 S. W. 1126. However, the record shows that there was sufficient evidence from which the jury could find all the facts to be as defendant claimed they were. And, since the verdict was in his favor and has received the approval of the trial judge, we must accept as true all the facts which defendant's evidence tends to show.

But it is contended that, taking all such claims at their face value, they do not, in law, amount to a constructive eviction nor relieve the defendant from his obligation to pay rent on that account.

The building in question was three stories high. A stairway located north of the storeroom, and opening on Main street, led to the second floor where there was a landing, and from this landing another stairway led to the third floor. On the second floor under this last-named stairway was a toilet. The third floor had no toilet, but the first floor had one under the stairway leading to the second floor. The hall and both stairways were always open and could be used by anyone. Access to the toilet on the second floor could be obtained either by going up the first flight of stairs to the landing or by coming from the third floor down to the landing, or, as the ground in the rear of the building was on a level with the second floor, persons could walk in from the rear through a hall leading to the closet. At the time the lease was executed, a truss company occupied the second floor, and the third floor was rented as a dwelling. Afterwards a portion of the second floor was rented for a...