Stephenson v. Morrissey
| Decision Date | 03 April 1950 |
| Docket Number | No. 21332,21332 |
| Citation | 230 S.W.2d 124,241 Mo.App. 43 |
| Parties | STEPHENSON et al. v. MORRISSEY et al. |
| Court | Missouri Court of Appeals |
Gene Thompson, Maryville Richard Thompson, Maryville, for appellants.
Emmett Bartram, Maryville, L. L. Livengood, Maryville, for respondents.
This suit seeks to enjoin the defendants from continuing to violate certain provisions of a lease contract and to recover damages therefor. After the pleadings were filed plaintiffs and defendant Morrissey each filed a motion for judgment on the pleadings. The court overruled plaintiffs' motion but sustained defendant Morrissey's motion and dismissed plaintiffs' petition and rendered judgment against them. They have appealed.
The pleadings and the motions concede that on or about July 1, 1947, plaintiffs and defendant Morrissey entered into a written lease wherein the plaintiffs leased to Morrissey a certain building in Maryville, Missouri, which had theretofore been used as a hotel. The first paragraph of the lease recites that plaintiffs have rented to Morrissey certain property 'to be used for a hotel,' and then follows the legal description of the premises. The lease also provides that Morrissey 'further covenants and agrees that he will not sublet or assign this lease.' Thereafter Morrissey took possession of the premises and operated the hotel. On or about March 5, 1948, he sublet a portion of the lobby of said hotel to defendants Basford for the purpose of installing a ladies ready-to-wear dress shop. Shortly thereafter, Morrissey began erecting partitions and enclusing the portion of the lobby so sublet and, in due time, the Basfords entered said premises and were conducting a place of business for the sale of ladies' dresses. When the plaintiffs learned of this sublease and the proposed remodeling and alterations of the lobby, they protested and requested the defendants to desist, which they refused to do, and this suit followed.
There is no forfeiture clause in the lease, and on motion the court struck from the petition the prayer asking for such relief, and we are no longer concerned with that issue. This leaves the question of plaintiffs' right to an injunction and damages for any violation of the terms of the lease.
Defendant Morrissey's motion for judgment on the pleadings is based on the propositions that (a) the words in the lease, 'to be used as a hotel,' are merely descriptive and are in no wise a restriction; (b) that the clause in the lease, 'not to sublet or assign this lease,' is not equivalent to a covenant against subletting a portion of the leased premises or any part thereof; and (c) that the lease is for more than two years and there is no forfeiture clause for breach thereof, therefore Sec. 2967, R.S.1939, Mo.R.S.A., controls, and it is immaterial whether plaintiffs gave consent to subletting a portion of the premises.
Morrissey's lease was from August 1, 1947, to March 31, 1950, with the right to renew for an additional period of two years by giving notice. His sublease to the Basfords was from April 1, 1948 to March 31, 1950, with the right to renew for an additional period of two years by giving notice.
Under our view of the case, it is unnecessary to decide whether the language of the lease constitutes a restriction of the use of the property or is merely descriptive. It is conceded that the lessee, Morrissey, sublet a portion of the premises to the defendants, Basford, and that they are now in possession of the leased portion. If this subletting was a violation of the contract, then the court erred in sustaining the motion for judgment on the pleadings.
Morrissey contends that (a) the provision of the lease reading, 'second party (Morrissey) further covenants and agrees that he will not sublet or assign this lease,' is not a covenant against subletting a portion or all of the premises; and (b) that the lease shows on its face that it is for a period of more than two years; therefore, under Sec. 2967, it was not necessary to have the landlord's consent to the subletting. This section reads: 'No tenant for a term not exceeding two years, or at will, or by sufferance, shall assign or transfer his term or interest, or any part thereof, to another without the written assent of the landlord; * * *.' This section certainly does not prohibit a landlord from contracting against the subletting or assigning of a lease without his written consent. In E. H. Powers Shoe Company v. Odd Fellows Hall Company, 133 Mo.App. 229, loc. cit. 242, 113 S.W. 253, it is held that a landlord may absolutely prohibit the assigning or subletting of a lease because he has the right to select his own tenant. Defendant cites the case of Bibler v. Iuchs, Mo.App., 275 S.W. 779. That case does hold that under the statute a tenant whose term is in excess of two years may assign or sublet without the landlord's consent; and it does appear that the lease under consideration was for more than two years, but we think the court overlooked that fact because the cases cited in support of the proposition do not justify such a broad statement. In none of those leases was the tenant prohibited from assigning or subletting without the written consent of the landlord. If that case intended to hold that a lease for more than two years may be assigned or a portion of the premises sublet without the landlord's consent, regardless of whether the lease contract provided otherwise, then it should not be followed. In Griggs v. Bridgewater, 167 Mo.App. 342, 345, 151 S.W. 764, 765, it is said of this section: 'That statute by its terms only applies to leases not exceeding two years or tenancies at will...
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