Sunray DX Oil Co. v. Lewis, 52617

• Citation: 426 S.W.2d 44
• Decision Date: 12 February 1968
• Docket Number: No. 52617,No. 2,52617,2
• Parties: SUNRAY DX OIL COMPANY, Plaintiff-Respondent, v. Lawrence E. LEWIS and Ethel I. Lewis, Defendants-Appellants
• Court: United States State Supreme Court of Missouri

Page 44

426 S.W.2d 44

SUNRAY DX OIL COMPANY, Plaintiff-Respondent, v. Lawrence E. LEWIS and Ethel I. Lewis, Defendants-Appellants.

No. 52617.

Supreme Court of Missouri, Division No. 2.

Feb. 12, 1968.

Watson, Ess, Marshall & Enggas, Robert I. Donnellan, Clayton R. Smalley, Kansas City, for plaintiff-respondent.

Rufus Burrus, Independence, for defendants-appellants.

GEORGE P. ADAMS, Special Judge.

Defendants-appellants appeal from a decree ordering them to specifically perform certain obligations undertaken by them under a lease with plaintiff-respondent whereby a tract of a little less than an acre, located in the northeast quadrant of the I--70-Noland Road interchange in Jackson County, Missouri was leased to plaintiff.

On and prior to April 25, 1963, defendants were the owners of a number of acres located in the northeast quadrant of said interchange. On the 10th day of May, 1963, and before the actual construction of said interchange, they executed a 'station site lease,' dated April 25, 1963, leasing the tract described in said lease to plaintiff for a term of five years at a gallonage rental of one cent per gallon for each gallon of gasoline delivered to said premises by the lessee or its agents, with the further provision that such rental payments would amount to a minimum of Two Hundred Dollars per month.

Defendants agreed to fill said premises to a grade to be determined by plaintiff, with the cost thereof to be shared on a fifty-fifty basis with plaintiff. Defendants also agreed to construct an 'access road' 36 feet in width, running east from the State Highway right-of-way line on Noland Road and abutting the tract along its south boundary, provided 'such access road is granted to lessor by the Missouri State Highway Department.' There was no provision for plaintiff to share any of the expenses of the construction of this road.

Plaintiff was permitted to use the site 'for a motor vehicle service station for the sale of petroleum products and other merchandise customarily handled by such service stations; and for servicing of motor vehicles; and for the conduct of any other lawful business; and the Lessee is hereby given the right to sublease or underlet said premises.'

Defendants were prohibited from constructing, maintaining or operating a motor vehicle service station or permitting the sale of motor fuel or other merchandise 'customarily handled by such service stations' on any of their premises immediately adjoining or within three hundred feet of the leased tract.

Plaintiff was granted the option of extending the primary term of the lease for four additional successive periods of five years each, at the same rental per month and on the same terms and conditions.

Plaintiff was granted an option to purchase the premises 'on the same terms and at the same price as any bona fide offer for said premises received by lessor and which offer lessor desires to accept.'

The lease further provided that it should not become effective until executed by a Vice-President of plaintiff and that 'should the Lessee fail to deliver an executed counterpart of this lease to Lessor on or before ninety days from date hereof, Lessor and Lessee shall be relieved of any further liability to each other.'

Under the terms of the lease, the defendants were required, upon plaintiff's request, to furnish plaintiff 'complete abstracts of title, or proof of insurable title, certified to date, and such other evidence of title as Lessee may request, for examination.'

Within ninety days of the date of said lease, plaintiff, as authorized by the lease, mailed an 'executed counterpart' of the lease to defendants.

By the pleadings, the ownership of the premises is agreed to be in the defendants.

In its petition, plaintiff alleged that under said instrument, it was granted a ninety day option to lease the tract described; that the option was exercised by it by executing said lease and delivering the same to defendants within said ninety day period; that defendants refused to recognize the option and refused to deliver to plaintiff satisfactory evidence of their title and refused to perform any of the other duties and obligations undertaken by them 'in granting said option and lease.'

In Count I, plaintiff sought a judgment declaring 'that the option granted by defendants to plaintiff was valid and that plaintiff exercised said option and holds a valid and existing lease on said real estate and is entitled to possession thereof in accordance with the terms and conditions of said lease and for such further relief as may be equitable.'

In Count II of its petition, plaintiff adopted all of the paragraphs of Count I and prayed 'that the defendants be required to specifically perform said option and lease and that plaintiff have such further relief as may be equitable.'

In their Answer, in addition to admitting the ownership of the premises, defendants denied that they were 'obligated to recognize the claimed option because none was granted by them,' and denied that they were obligated to deliver any evidence of title to any real property.

Defendants plead further that 'if this court should find that the paper writing mentioned by Plaintiff in its petition did in fact constitute an option for ninety days to lease the premises described in said writing that the same is invalid and of no force or effect for the reasons * * *:' (1) there was no consideration for any option; (2) that the description was vague and indefinite and insufficient to enable the location of the area sought to be covered; (3) that 'a portion, if not all of the frontage owned by Defendants on Noland Road was contained in an eminent doman (sic) proceeding by the State of Missouri * * * which cause had then resulted in the said Plaintiff (State Highway Commission), obtaining lands of Defendants and in obtaining all of the access said lands had to Noland Road, and that therefore it was impossible for the proposed filling station site to have access to Noland Road * * *;' (4) that the paper writing was indefinite and contradictory; (5) that plaintiff had abandoned its rights under the instrument by rejecting it and making a new and different proposal; (6) that plaintiff was estopped from claiming any rights or benefits by reason of the paper; (7) that it was guilty of laches; (8) that 'said paper writing provides for an inequitable and insufficient rental' because defendants would not 'be permitted to participate in any of the income derived from the sale of oil 'and other merchandise customarily handled by such service stations; and for the servicing of motor vehicles; and for the conduct of any other lawful business;' or to participate in any business which might be carried on by any sub-lessee of said premises.'

In Count I defendants prayed that the court 'decree that this Plaintiff has no right, title, interest or estate in or to the lands mentioned in Plaintiff's petition and for such other and further orders, judgments and decrees as to the court shall seem just, meet, equitable and proper.'

In Count II of their answer, defendants adopted all of the paragraphs of Count I of the answer, denied the paragraphs of Count II of the petition and prayed that the court 'deny the relief sought by the plaintiffs (sic) herein and for such other and further orders, judgments, and decrees as to the Court shall seem just, meet, equitable and proper.'

In its reply, plaintiff denied all of the affirmative matters pled in defendants' answer.

By its decree, the Court found the issues generally in favor of plaintiff and against defendants on Counts I and II of the petition and found that plaintiff was entitled to the relief prayed.

With respect to Count I, it decreed specifically 'that the option and lease under date of April 25, 1963 and executed by defendants on May 10, 1963, was and is valid; that plaintiff duly exercised such option and holds a valid and existing lease' to the property described in the lease; and that plaintiff was entitled to possession thereof.

With respect to Count II, it ordered defendants to specifically perform their obligations under said lease 'including but not limited to the following:' (1) furnish plaintiff with abstract of title or proof of insured title; (2) surrender possession of the premises; (3) cause the property to be filled to a grade acceptable to plaintiff, with the costs to be borne one-half by plaintiff and one-half by defendants; (4) cause construction of access road at defendants' cost 36 feet in width running east from the Interstate 70 State Highway right-of-way line on Noland Road and abutting said real property along its southern boundary line; and (5) secure consents and permits as necessary for lessee's use of said property for service station purposes.

Following the overruling of their motion for a new trial, defendants appealed to this court.

Defendants attempt to invoke the appellate jurisdiction of this court 'because the trial court decreed specific performance of a lease of real property for a term of five years, with four five-year renewal options, and by reason of Article V, Sec. 3, of Missouri Constitution, suits directly involving the title to real estate gives this court jurisdiction.'

In Plaintiff's brief, no statement is made with reference to the grounds of appellate jurisdiction of this court. Plaintiff apparently agrees that we have appellate jurisdiction.

Before considering the contentions of the parties on themerits of the cause, we must first determine whether we have appellate jurisdiction. This is required even though there is no dispute between the parties and such jurisdiction is conceded by them. It cannot be conferred by agreement or consent. Bock v. Sheahan Investment Company, et al., Mo.Sup., 412 S.W.2d 393, 395(1). The courts of appeals have general appellate jurisdiction but the Supreme Court is limited to the appellate jurisdiction specifically conferred by the Constitution...