St. Louis 221 Club v. Melbourne Hotel Corp.

• Decision Date: 21 February 1950
• Docket Number: No. 27792,27792
• Citation: 227 S.W.2d 764
• Parties: ST. LOUIS 221 CLUB v. MELBOURNE HOTEL CORPORATION et al.
• Court: Missouri Court of Appeals

Page 764

227 S.W.2d 764

ST. LOUIS 221 CLUB v. MELBOURNE HOTEL CORPORATION et al.

No. 27792.

St. Louis Court of Appeals, Missouri.

Feb. 21, 1950.

Motion for Rehearing or to Modify Opinion Denied March 24, 1950.

Jones, Hocker, Gladney & Grand, St. Louis, Benjamin Roth, St. Louis, for appellants.

Joseph Boxerman, St. Louis, Joseph Nessenfeld, St. Louis, for respondent.

HUGHES, Judge.

This is an action in equity seeking the reformation of a written lease contract, with a prayer in the petition for a temporary injunction pending the final adjudication of the case.

In 1934 St. Louis 221 Club, a laundrymen's association or club, which had been in existence for about forty years at the time of the trial, became a tenant under written lease of the Melbourne Hotel Corporation. Under the terms of that lease the club rented rooms 212, 214, 221, 222 and 223 for a term of five years, at a rental of $100 per month. That lease expired in 1939, but the club continued as a tenant of the hotel without a written lease and continued paying a rental of $100 per month. There was no specification in that lease, nor in the lease here in controversy, to which reference will later be made, of what, if any, services were to be furnished the club other than the possession and use of the rooms rented. However, the hotel during all of the time after 1934, and up to the present time, did furnish the club with the following: daily maid service, janitor service, room telephone service, soap, towels, hot and cold water, electric light, air cooling, cleaning and decorating, maintenance of plumbing and maintenance of electric sign at entrance to the rented rooms.

In the latter part of December, 1945, the manager of the hotel notified the secretary of the club that it was not paying enough rent and would have to give up the rooms. Thereupon Mr. Weil, Mr. Lees and Mr. Morgan, officers of the club, had a meeting with Mr. Florida, who owned practically all of the capital stock of the hotel corporation, and negotiations were entered into looking toward a new written lease, which resulted in an agreement that the club would give up rooms 212 and 214, and the hotel would rent to it rooms 221, 222 and 223, at the same rental of $100 per month for a term of five years with the option to the club to renew the lease for a further term of five years. The same parties again met on January 1, 1946, to execute the new lease which had been prepared by or under the directions of Mr. Florida.

The three officers of the club testified that in the negotiations for this lease Mr. Florida told them that the club was to have the same services as it had been getting except that those services would be improved because of extensive repairs and improvements being made to the hotel. To the contrary, Mr. Florida testified that nothing was said about anything except that the club would give up the two rooms and he would lease them the three rooms for $100 a month.

The new lease was signed and is silent as to what, if any, service the hotel would give the club other than the use and occupancy of rooms 221, 222 and 223. However, the hotel continued to give the services as theretofore, to wit, daily maid service, janitor service, room telephone service, soap, towels, hot and cold water, ice water, electric light, air cooling, cleaning and decorating, maintenance of plumbing and maintenance of electric sign at entrance to the rented rooms. The tenancy thus continued uninterrupted until June 15, 1948, when the club received from the managing director of the Melbourne Hotel Corporation the following letter:

'June 15, 1948.

'St. Louis '221' Club,

'Melbourne Hotel,

'3601 Lindell Blvd.,

'St. Louis, Missouri.

'Attention Mr. Goldrick

'Dear Mr. Goldrick:

'In accordance with my conversation with you yesterday, this letter will further explain that we will be unable to continue to furnish your quarters with maid or porter service, towels, soap, etc., effective July 1st, 1948. We understand that you have been receiving these services although there is no stipulation in your lease calling for this type of service, and since our company has taken over this property, and having made a survey on our costs, we cannot afford to continue giving this type of service.

'We regret very much that it is necessary for us to take this action and will appreciate your notifying your Board.

'Yours very truly,

'(Signed) E. A. Leach

'Managing Director,

'Melbourne Hotel Corporation.'

This suit followed the receipt of that letter.

There is some complication as to the pleadings and the parties to the suit at the time of the trial of the case. This is occasioned by the fact that the Melbourne Hotel Corporation sold the hotel building on January 5, 1948, to a partnership composed of Albert Pick, J. Edgar Moss and Harold J. McCormick, d/b/a Highland Hotel. On March 10, 1949, at the close of the trial of the case the record shows as follows: 'Thereafter, on the 10th day of March, 1949, by consent, Albert Pick, J. Edgar Moss, Harold J. McCormick, d/b/a Highland Hotel, joined as additional parties defendant and caption of petition amended accordingly. Jones, Hocker, Gladney & Grand and Benjamin Roth enter their appearance as attorneys for said new parties defendant. By leave, said new parties defendant adopt answer heretofore filed as their answer. By consent, temporary injunction heretofore granted to stand in full force and effect as against said new defendants. Depositions for defendants filed.'

The case was taken as submitted, and thereafter, on March 30, 1949, the court entered its decree. It appears that in October, 1948, the Melbourne Hotel Corporation was dissolved, yet the case proceeded to a final determination as against the Melbourne Hotel Corporation and the partnership. We think this was authorized by Section 22(c) of the Civil Code, Mo.R.S.A. Sec. 847.22(c) which is as follows: 'In case of any transfer of interest, the action may be continued by or against the original party, unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party. Service of the motion shall be made as provided in sub-section (a) of this section.'

The joining of the individual defendants was by consent, and no motion to joint them was necessary.

The decree entered by the trial court is as follows:

'1. That the said lease dated January 1st, 1946, by and between Melbourne Hotel Corporation as lessor and St. Louis 221 Club as lessee be, and the same is hereby reformed so as to provide that the lessor in said lease, its successors and assigns agree to furnish to plaintiff during the entire term of said lease the following services, to-wit: daily maid service, janitor service, room telephone service, soap, towels, hot and cold water, ice water, electric light, air cooling, cleaning and decorating, maintenance of plumbing and maintenance of electric sign at entrance to the rented rooms.

'2. That in and by said lease as so reformed defendant Melbourne Hotel Corporation, as lessor, leased to plaintiff the rooms therein mentioned and agreed to furnish as part thereof and incident thereto the services hereinabove set forth and listed; and that defendants are bound to continue to furnish to plaintiff during the term of said lease the said services.

'3. That defendants be and they are hereby enjoined and restrained from discontinuing the services hereinabove set forth during the term of said lease.

'That the costs of this action be assessed against the defendants.'

After unavailing motion for a new trial the partnership defendants appeal.

The primary relief sought by the plaintiff-respondent in its petition, and awarded to it by the trial court's decree, was the reformation of a lease contract in order that it express the true intention and agreement between the parties. 'Courts of equity have from time immemorial exercised power to reform written instruments so as to make them speak the real agreements made between the parties in cases in which by the mistake or misprision of the scrivener the writing fails to do so, and it will exercise this power not only as between the original parties, but as to those claiming under them in privity, such as personal representatives, heirs, assigns, grantees, judgment creditors, or purchasers from them with notice of the facts.' Sicher v. Rambousek, 193 Mo. 113, 129, 91 S.W. 68, 72; Leitensdorfer v. Delphy, 15 Mo. 160, 161, 55 Am.Dec. 137. A lease which fails to express the intention of the parties should be reformed. Smith v. Smith, 289 Mo. 405, 233 S.W. 183. The rule is the same as to a deed or any other written contract. General Refractories Co. v. Howard, 328 Mo. 1139, 44 S.W.2d 65; Brumley v. McCormack, Mo.App., 17 S.W.2d 597.

Not only did the overwhelming weight of the evidence show that the actual agreement between the parties was that the hotel would furnish the services that it had furnished from the beginning of the club's tenancy in 1934, but such is conceded by the appellants in their statement of facts contained in their brief as follows: 'The appellants will not, in this appeal, press their contention that the actual agreement is set out in the written lease. The oral evidence on this point was heard by the trial judge, and his decision should not be disturbed here.'

We do not agree with appellants' argument to the effect that, because of the injunctive relief prayed for and that awarded to plaintiff, the cause of action was for specific performance of a contract. It remained an action for the reformation of a written lease contract in order to make it speak the actual contract as contemplated and intended by both parties. The decree went beyond the petition, which had for its purpose the reformation of the lease contract, with a prayer only for a temporary injunction to maintain the status quo pending the final determination of the case. No permanent injunction was prayed...