Stein v. Reising

• Decision Date: 10 October 1949
• Docket Number: 41238
• Citation: 224 S.W.2d 80,359 Mo. 804
• Parties: A. Joe Stein, Respondent, v. Sophie Reising, Appellant
• Court: Missouri Supreme Court

224 S.W.2d 80

359 Mo. 804

A. Joe Stein, Respondent, v. Sophie Reising, Appellant

No. 41238

Supreme Court of Missouri

October 10, 1949

Rehearing Denied November 14, 1949.

Appeal from Circuit Court of City of St. Louis; Hon. Harry F Russell, Judge.

Reversed.

SYLLABUS

A clause in a lease granting the lessee the first option to purchase the property was not an absolute option to purchase, but was conditional on the desire of the lessor to sell the property. A judgment of specific performance is reversed.

Julius H. Drucker and Walter S. Berkman for appellant.

(1) Option agreements should be strictly construed and specific performance should be denied if any doubt exists as to the facts on which the right to the remedy depends. Braxton Realty & Inv. Co. v. Schellenberg. 142 S.W.2d 1006; Chapman v. Breeze, 198 S.W.2d 717, 355 Mo. 873. (2) The granting of a first option to purchase property confers upon the optionee a conditional right to purchase only in the event the optionor desires to sell his property during the prescribed term. R.I. Realty Co. v. Terrell, 254 N.Y. 121, 172 N.E. 262; Cloverdale Co. v. Littlefield, 240 Mass. 129, 133 N.E. 565; Buddenberg v. Welch, 97 Ind.App. 87, 185 N.E. 865; 51 C.J. 631; Landowners Co. v. Pendry, 151 Kan. 674, 100 P.2d 632; Fergen v. Lyons, 162 Wis. 131, 155 N.W. 935; In re Rigby's Estate, 167 P.2d 964; Sander v. Schwab, 315 Ill. 623, 146 N.E. 509; 127 A.L.R. 901; Koppi v. Gallegher, 133 Misc. 79, 230 N.Y.S. 680; Sargeant v. Vought, 194 A.D. 807, 185 N.Y.S. 578; Hathaway v. Nevitt, 213 S.W.2d 938; Nu-Way Service Stations, Inc., v. Vandenberg Bros. Oil Co., 283 Mich. 551, 278 N.W. 683.

Mandel & Cohn and Louis E. Zuckerman for respondent.

(1) The trial court was not bound to believe the appellant and her witnesses that, notwithstanding she had made no such reservation in the option, respondent would have the option to buy only "if she would decide to sell" during the year of the lease; and so disbelieving such testimony, the decree for respondent was not erroneous, but proper. Anast v. Czerwenka, 203 S.W.2d 463, 356 Mo. 741; Holland v. Martin, 198 S.W.2d 16, 355 Mo. 767; Donati v. Gualdoni, 216 S.W.2d 519. (2) The option in the case at bar was completely sold and transferred in praesenti, subject only to its exercise by respondent during the year of the lease in question. There was no agreement in futuro. Elliott v. Delaney, 217 Mo. 14, 116 S.W. 494; 35 C.J. p. 1038, sec. 182; p. 1039, notes 58(a), 68(b); Spitzli v. Guth, 112 Misc. 630, 188 N.Y.S. 743; Gilbert v. Port, 28 Ohio St. 276; Tilton v. Sterling Coal Co., 28 Utah 173, 77 P. 758, 107 Am. St. Rep. 689; 35 C.J. 1040, notes 68(a) (5), 69(c); Tennant v. Rafferty, 44 S.D. 235, 184 N.W. 195; 35 C.J. 1040, sec. 183; Matter of Hunter, 1 Edw. N.Y., 1; Hawralty v. Warren, 18 N.J.Eq. 124, Am. Dec. 613; 51 C.J.S. 634, sec. 81; Hathaway v. Nevitt, 213 S.W.2d 938; 51 C.J.S. 635, secs. 81(b), 81(c); 51 C.J.S. pp. 643, 644, sec. 84. (3) The intention of the parties in this case, as gathered from their acts, words and conduct, must control in determining the right of respondent to exercise his option to purchase the property within the year of the lease, if the lease be in effect during that time, for $ 8000; but oral testimony may not be used to vary the written option, or to add thereto the words, "unless she decides to sell". Chapman v. Breeze, 355 Mo. 873, 198 S.W.2d 717; Wells v. Fisher, 199 N.Y.S. 594, 237 N.Y. 79, 142 N.E. 258; Barnhart v. Stern, 182 Wis. 197, 196 N.W. 245; Tatum v. Keller, 123 A. 299; Schroeder v. Gemeinder, 10 Nev. 355; 30 Words & Phrases, p. 19; Ilges v. Dexter, 77 Ga. 36; Brice v. Meier, 7 P.2d 1037; Hyatt v. Vinita Brass Works, 214 P. 706, 89 Okla. 171; Behrman v. Max, 137 So. 120; Lively v. Tabot, 107 S.W.2d 62, 341 Mo. 352; City of Minn. v. Rep. Creosoting Co., 201 N.W. 414, 161 Minn. 178; Queen Ins. Co. of America v. Meyer Milling Co., 43 F.2d 885; Busch v. Midland Fin. Corp., 64 F.2d 859; certiorari denied; Midland Fin. Corp. v. Busch, 54 S.Ct. 64, 290 U.S. 645, 78 L.Ed. 560; Order of U. Com. Trav. of Am. v. Sevier, 121 F.2d 650; Amsterdam Syndicate of U.S. v. Fuller, 154 F.2d 342; McFarland v. Gillioz, 37 S.W.2d 911, 327 Mo. 690; O'Connor v. Great Lakes Pipe Line Co., 63 F.2d 523; Fulkerson v. Great Lakes Pipe Line Co., 75 S.W.2d 844, 335 Mo. 1058, 60 S.W.2d 71, 227 Mo.App. 382; Swinney v. Cont. Bldg. Co., 102 S.W.2d 111, 340 Mo. 611; School Dist. of Independence, ex rel. Whalen v. Wilcox, 58 S.W.2d 1009; Prater v. Bush, 74 S.W.2d 875, 228 Mo.App. 922; Burman v. Venzeau, 85 S.W.2d 217, 231 Mo.App. 1109; Ambassador Bldg. Corp. v. St. L. Ambassador Theatre, 185 S.W.2d 827, 238 Mo.App. 600; Pitcairn v. American Refr. Tr. Co., 101 F.2d 929; certiorari denied, 60 S.Ct. 78, 308 U.S. 566, 84 L.Ed. 475; Industrial Bank & Tr. Co. v. Hesselberg, 195 S.W. 470; N. St. L. Bldg. & Loan Assn. v. Obert, 69 S.W. 1044, 169 Mo. 507; McCartany v. Guardian Tr. Co., 202 S.W. 1131, 274 Mo. 224; White v. Murphy, 236 S.W. 674; Stockham v. Leach, 238 S.W. 853, 210 Mo.App. 407; Wainscott v. Haley, 171 S.W. 983, 185 Mo.App. 45; Pickard v. William J. Burns Det. Agency, 187 S.W. 614; Ebbs v. Neff, 282 S.W. 74, 220 Mo.App. 1070. (4) The payment of the rent of $ 85 stipulated in the lease is the consideration for the option to purchase contained in the lease; the optionor, lessor, became bound to sell the property on lessee's acceptance of the option; and such acceptance need not have been in writing or otherwise formal to bind the lessor. Hathaway v. Nevitt, 213 S.W.2d 938; 51 C.J.S. 640, sec. 82(b). (5) It is respectfully submitted that, by its opinion in Division 2, of this Honorable Court, the court has directed an unconstitutional taking of the respondent's "property", that is, "a valuable property right", by state action; has denied respondent "due process of law" and "the equal protection of the laws", in violation of Section 1, of the 14th Amendment to the Constitution of the United States, which guarantees to him the protection of that right; has denied him "due process of law", guaranteed to him by that same 14th Amendment and by Section 10, of Article I. of the Constitution of Missouri of 1945; and, by the construction therein placed upon the option clause here involved, respondent has been denied the right guaranteed him by both Section 13, of Article I., of the Missouri Constitution of 1945, and Section 1, of the 14th Amendment to the United States Constitution, that no law shall be made impairing the obligation of his contract. And the adoption of the opinion in Division 2 by the Court en Banc will result in a like violation of such property right so constitutionally inviolate. Elliott v. Delaney, 217 Mo. 14, 116 S.W. 494; Chapman v. Breeze, 355 Mo. 873, 198 S.W.2d 717; Tebeau v. Ridge, 261 Mo. 547, 170 S.W. 871; Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836; Armour Packing Co. v. U.S., 153 F. 1, 82 C.C.A. 135, 14 L.R.A. (N.S.) 400, affirmed 28 S.Ct. 428, 209 U.S. 56, 52 L.Ed. 681; Bowers v. Kansas City Pub. Serv. Co., 41 S.W.2d 810, 328 Mo. 770; Curators of Central College v. Rose, 182 S.W.2d 145; appeal dismissed 65 S.Ct. 269, 323 U.S. 678, 89 L.Ed. 550; Hathaway v. Nevitt, 213 S.W.2d 938; 51 C.J.S. pp. 637-638, sec. 81 (e); Bammert v. Kenefick, 261 S.W. 78; State ex rel. Jones v. Nolte, 350 Mo. 271, 165 S.W.2d 632; Barber v. Time, Inc., 159 S.W.2d 291, 348 Mo. 1199; Brinkerhoff-Faris Tr. & Sav. Co. v. Hill, 50 S.Ct. 451.

OPINION

Barrett, C.

This action involves the construction and meaning of this clause in a lease: "Lessee will be given first option to purchase property within year lease if in effect at a price of $ 8,000.00." The precise question upon this appeal by the lessor is whether the trial court should have decreed specific performance of the clause as an absolute and unconditional option and compelled a conveyance of the property to the lessee.

Sophie Reising owned the two and one half story brick building at 2655 Shenandoah Avenue in St. Louis. For more than twenty years Mrs. Reising and her husband operated a grocery store and market in the first floor of the building and lived in the second floor. Mr. Reising died in 1939 and thereafter Mrs. Reising and her son, Henry, operated the store. In 1946 they decided to sell the grocery store and the building. Mr. A. Joe Stein was introduced to them as a prospective purchaser. He had once operated a grocery store, probably unsuccessfully, and in the intervening years had been employed as a butcher. He immediately entered into negotiations with the Reisings and by the 9th of July had agreed to buy the grocery store. He paid them $ 4,875.00 for the fixtures and good will of the business for which they gave him a bill of sale. The grocery stock was inventoried to him and he bought a truck from Henry and in turn sold Henry his automobile, for all of which he made a further payment of $ 2,372.00, or a total cash outlay for the fixtures, stock and truck of $ 7,247.00. This phase of the transaction was either agreed upon or consummated by Monday, August 12, 1946. On that day Mr. Stein took over the management and operation of the grocery store and he and Mrs. Reising executed the lease.

The lease is a printed form with the dates, the names, the consideration, the description of the premises and the option clause typed into the blank spaces. The lease is of the "store building and flat" for a period of one year from the 12th day of August 1946. The specified year's rent is $ 1,020.00, payable in monthly installments of $ 85.00. There is no provision for a renewal of the lease and it provides for double rent in the event the lessee should hold over after the expiration of the specified term, and it also provides that any alterations or repairs will be made at the expense of...