Thomas v. Utilities Bldg. Corp.

• Decision Date: 18 September 1934
• Docket Number: 30855
• Citation: 74 S.W.2d 578,335 Mo. 900
• Parties: Harry C. Thomas, Appellant, v. Utilities Building Corporation and Kansas City Power & Light Company
• Court: Missouri Supreme Court

74 S.W.2d 578

335 Mo. 900

Harry C. Thomas, Appellant, v. Utilities Building Corporation and Kansas City Power & Light Company

No. 30855

Supreme Court of Missouri

September 18, 1934

Rehearing Overruled July 17, 1934.

Motion to Transfer to Banc Overruled September 18, 1934.

Appeal from Jackson Circuit Court; Hon. Darius A. Brown Judge; Opinion filed at May Term, 1934, June 12, 1934; motion for rehearing filed; motion overruled July 17, 1934; motion to transfer to Court en Banc filed; motion overruled at September Term, September 18, 1934.

Affirmed.

Gossett Ellis, Dietrich & Tyler for appellant.

(1) The lease assigned to plaintiff, upon which his rights are based, gave and created a leasehold for years of and for four consecutive terms or periods, namely: First term: For twenty-five years from and including January 1, 1904, the rent payable during this period to be $ 65 per month for the first ten years; $ 75 per month for the next ten years; and $ 100 per month for the last five years of that twenty-five-year period. Second term: For thirty days after the end of the first twenty-five-year period if appellant (lessee) chose, as he did, not to remove his building before the end of that twenty-five years, and, as he also did, if he chose not to remove it within that thirty days. And if and as he retained the land for such thirty days, he became bound, as by the lease it is provided he should be bound "to pay rent at the rate of $ 100 per month for whatever part of said thirty days," the buildings might remain on the land. Third term: For as long thereafter (that is after the thirty days if he retained possession for the whole of the thirty days) not exceeding twenty-five years as he might for such twenty-five years or any part of it he chose, retain possession by keeping his building on the land, but he is obligated to pay to the lessors the sum of $ 150 per month (rent) for the twenty-five years or any such part of the same during which he so retained possession. Fourth term: ". . . but if, however, at the end of twenty-five years said possession has not been given, then said lessee shall and will become a tenant of the lessors from month to month" (italics ours). (2) Unless expressly so restricted or provided lessee is not bound to use only for one purpose. Moore v. Guardian Trust Co., 173 Mo. 218. (3) A lease for a specific time is a lease for years and cannot be a lease from month to month. 35 C. J. 970, sec. 47; Stoppelkamp v. Mangeot, 42 Cal. 316; Young v. Smith, 28 Mo. 65; Shippey v. Kansas City, 254 Mo. 24; holding that no formal words are necessary to constitute a lease. Any form of words showing owner intends to part with or divest himself of possession in favor of another for a determinate time and second party's agreement to pay rent, makes a lease. (4) A lease of land to a lessee for as much of thirty days or of twenty-five years, from certain dates as lessee may retain possession, he covenanting to pay rents for such parts of those successive periods as he may so occupy, is in legal effect equivalent of a lease for thirty days, or twenty-five years with proviso that lessee may at any time during the then current such respective period, cancel the lease, with or without notice therefor. It is for and in such definite term of years, defeasible and terminable at lessee's option. If so written and executed, as in this case, there is no ground to say such lease is not entirely valid. Corby v. McSpadden, 63 Mo.App. 652. It is of as permanent nature and more definite as to its successive terms than a mining license, even which is valid for more indefinite terms. Boone v. Stover, 66 Mo. 434. Lessee is presumed to have held over any period rightfully when the lease provides for a continuance of his possession and payment of rent. Medicus v. Altman, 199 Mo.App. 466. (5) Where a term for a fixed period is created by a lease, a provision for the termination of the lease upon an event which may or may not happen before the expiration of the period specified will not prevent the creation of a valid term for years. The fact that a lease for a fixed period provides for its termination before the expiration of such period at the option of the lessor or the lessee will not prevent it from creating a valid term for years. Conservative Realty Co. v. St. Louis Brewing Assn., 133 Mo.App. 261; Hadley v. Bernero, 97 Mo.App. 314; Willis v. Thomas, 9 S.W.2d 423; Reed v. Lewis, 74 Ind. 433, 39 Am. Rep. 88; Monigle v. Boston, 3 Allen, 230; Shaw v. Hoffman, 25 Mich. 162; Corby v. McSpadden, 63 Mo.App. 652; Miller v. Levi, 44 N.Y. 489; Nesham v. Selby, L. R. 13 Eg. 191; Wright v. Cartwright, 1 Burr. 282, 97 Reprint, 315; 35 C. J., pp. 970, 972, 974.

Johnson, Lucas, Landon & Graves for respondents.

(1) The rights of the appellant as lessee under the terms and provisions of his lease wholly expired December 31, 1928, reserving to appellant the right, if he had not removed the buildings at said expiration date, December 31, 1928, to re-enter for the purpose of removing the buildings within thirty days. There is no provision in the lease extending the period of tenancy after December 31, 1928. Shippey v. Kansas City, 254 Mo. 24, 162 S.W. 137; Medicus v. Altman, 199 Mo.App. 468, 203 S.W. 637; Corby v. McSpadden, 63 Mo.App. 652. (2) Contracts optional in respect to one party are strictly construed in favor of the party that is bound and against the party in whose favor the option runs. A lease containing a provision with reference to an option given the tenant to an additional term at the expiration of the term provided in the lease, obligates the lessee to give notice of his exercise of such option prior to the expiration of the term provided in the lease. American Press Co. v. St. Louis, 314 Mo. 303, 284 S.W. 482; Rutledge & Taylor Coal Co. v. Mermod, 209 Mo.App. 300, 237 S.W. 849; Lewis Coal Co. v. Fuel Co., 33 F.2d 730. (3) The appellant had only the right under the terms of the lease to re-enter the premises after December 31, 1928, for the purpose of removing the buildings and not as a tenant. (4) The notice served upon appellant January 30, 1929, to terminate the tenancy of the appellant on March 1, 1929, and to surrender possession, was a sufficient notice to terminate the rights of appellant as a tenant from month to month, since such tenancy from month to month commenced on December 31, 1928. Sec. 2584, R. S. 1929.

Hyde, C. Ferguson and Sturgis, CC., concur.

OPINION

HYDE

This case, coming recently to the writer, is an action to determine title to a leasehold estate, for damages for withholding possession, and for the destruction of buildings on the land claimed. Prior to the trial, the parties entered into a stipulation which settled the issues to be tried and the amount of the damages in case of recovery. Under this stipulation, in case plaintiff established the rights he claimed, he would have been entitled to recover, as follows: "(1) For the conversion of his building by respondents as of March 2, 1929, $ 15,000.00; (2) and the then present worth on March 2, 1929, of the monthly net value of the rents and profits $ 450 per month for 24 years and 10 months, amounting to $ 68,561.82." The court, however, sustained a demurrer to plaintiff's evidence and from the judgment entered against him thereon plaintiff appeals.

The lease in controversy was made in December, 1903, and provided for a twenty-five-year term. The question for determination is: What rights did plaintiff have, as assignee of the Morr Transfer and Storage Company, the original lessee, after the expiration of the twenty-five-year term? The material provisions of the lease are as follows:

"First. That said lessors, being the owners in fee of lots one (1) two (2), three (3) and four (4), in Block lettered F of Second Resurvey of Reid's Addition to the City of Kansas (now Kansas City), in the county of Jackson and state of Missouri, do in consideration of the rents to be paid by and covenants to be performed by said lessee, as hereinafter set forth, lease and let unto said lessee, for the period of twenty-five (25) years from and including the first day of January, 1904, the said lots above described.

"Second. Said lessee, as rent for said premises, during the whole of the first ten years of said term, agrees to pay to said lessors the sum of sixty-five ($ 65) dollars per month, on the first day of each and every month, in advance, and for the next ten years the sum of seventy-five ($ 75) dollars per month for each and every month, due and payable in like manner, and for the remaining five years the sum of one hundred ($ 100) dollars per month for each and every month, due and payable in like manner.

"Third. In addition, as part of the consideration for this lease, the said lessee agrees and binds itself to pay all taxes, state, county and city, that fall due and are payable after the first day of January, 1904, and within the term of this lease, as well as all special taxes and assessments, of every character or kind that may be legally charged or assessed against said property, or any part thereof, after said date. . . .

"Sixth. It is agreed that if all rents have been paid and all the terms of this lease have been complied with, all buildings and improvements on said premises at the expiration of this lease, except the foundation, shall belong to the lessee with the right to remove the same; but unless said lessee shall have removed them by that time, then they shall be removed within thirty days, but said lessee must pay rent at the rate of one hundred ($ 100) dollars per month for whatever part of said thirty days said buildings and improvements and fixtures, or any part thereof so to be removed, may remain on said premises; but should they not be...