Thornburgh v. Warson Village Corp.
| Decision Date | 19 January 1960 |
| Docket Number | No. 30280,30280 |
| Parties | Ethel THORNBURGH, (Plaintiff) Appellant, v. WARSON VILLAGE CORPORATION, a corporation, and Thomas J. White, (Defendants) Respondents. |
| Court | Missouri Court of Appeals |
H. Jackson Daniel, Husch, Eppenberger, Donohue, Elson & Jones, St. Louis, for appellant.
Kappel & Neill, Robert E. Staed, St. Louis, for respondents.
This is an action for reformation of a lease. The trial court's judgment and decree was for defendants and plaintiff appeals.
Plaintiff alleges in her petition that defendant, Thomas J. White, deliberately and fraudulently omitted a provision in the lease giving plaintiff an option to renew the lease for five more years after its termination, although said defendant had agreed to said option. Plaintiff further alleges that if the aforesaid provision was not deliberately and fraudulently omitted then said provision was omitted by said defendant through inadvertence and mistake and that said lease was executed by plaintiff by mistake and oversight in the belief that said provision for an option to renew was contained in said lease.
Plaintiff contends that the evidence clearly established an agreement between the parties giving plaintiff an option to renew, as well as mistake on the part of plaintiff and inequitable conduct by defendants in omitting the renewal provision from the lease and, therefore, the trial court erred in denying reformation of the lease. A determination of this contention requires an examination of the evidence.
Plaintiff was the sole proprietor of the Warson Village Children's Shop. Prior to coming to St. Louis County to open and operate the children's shop she was a resident of Milwaukee, Wisconsin, where she had been employed by Gimbel's Department Store as a buyer for a period of three years. In the course of this employment she signed no leases for her employer. She had thirty years business experience. Prior to moving to Milwaukee, Wisconsin, she was employed by Klines, a women's clothing store at 608 Washington Avenue in St. Louis, Missouri. While so employed she was chosen to open and operate a department of that store.
Sometime prior to 1952 plaintiff considered opening a children's shop in St. Louis, Missouri. About February or March of 1952 she started tangible plans to bring to fruition her consideration. At that time she contacted defendant, Thomas J. White, about possible store space in the Brentwood Shopping Center. White informed her there was no space available in that shopping center, but told her he was building a new addition on the Warson Village Shopping Center. This shopping center was owned by Hannah White, mother of defendant Thomas J. White, and he was acting as her agent in the dealings with plaintiff.
Plaintiff, accompanied by Mr. Keil, went out to the Warson Village Shopping Center where they met White. Plaintiff testified Mr. Keil was a friend of her family and had introduced her to defendant, White. According to plaintiff's testimony, Keil was present during the conversation she had with White.
Plaintiff told White she would like to have Unit No. 2 of the shopping center, because it was closer to the 'dress operations' of the center. White told plaintiff all units were available at that time. Plaintiff then told White she wanted a five-year lease with an option to renew the lease at termination for another five years. When plaintiff was asked what Mr. White said to this proposal, she answered: Plaintiff asked White how much the rental would be and he told her 'it would not exceed one hundred or one hundred fifty dollars per month.' She told White the rental was satisfactory.
We think it opportune to relate at this point some remarks of the trial court made at the conclusion of plaintiff's case and when discussing defendants' motion for a directed verdict with the attorneys for the parties. The court told the attorney for plaintiff that he had the court reporter read the answer given by plaintiff when she was asked what Mr. White said in answer to her proposal for a five-year lease with an option to renew for an additional five years. The court pointed out that plaintiff did not testify that there was an agreement on the part of White to draw up a lease in accordance with plaintiff's terms. The court then told plaintiff's attorney 'there is nothing that would cause me to reform this lease.' The court took defendants' motion for a directed verdict under advisement and instructed defendants to proceed with their evidence. At the close of defendants' evidence plaintiff again took the witness stand and under questioning by her attorney and the judge of the trial court, she testified that before she left the shopping center Mr. White said he would give her a five-year lease with an option to renew for an additional five years.
Returning to the evidence in plaintiff's case-in-chief it shows that plaintiff returned to Milwaukee after her visit to the Warson Village Shopping Center and the conversation with Mr. White. The lease did not arrive as promised and plaintiff telephoned White on two occasions. On both occasions White told her his father was very sick. On the occasion of the last telephone call she told White she wanted to give her employer two weeks notice of her resignation from her position and wanted to buy fall merchandise for the store. She testified White told her, She came to St. Louis about April 1, 1952. At no time did she have any correspondence with White about the option to renew for five years.
Some time after plaintiff arrived in St. Louis. White called and told her the lease was ready for signing. She went to his office, the date of the visit she could not remember, and the only persons present were White and plaintiff. White told her he wanted three months advance rent as a deposit and that the rental would be one hundred seventy-five dollars per month. She questioned the amount of rental and White told her, 'Well, that's what it worked out and that's what it would have to be.' She told him 'all right' and gave him a check for the deposit. She was asked if she read the lease and answered 'No.' She testified that White told her 'you don't need to read it.' Plaintiff then signed the lease. At this point the court said to plaintiff, 'And you signed a paper without even looking at it?' and she answered, 'Yes, I did, sir.' She testified that at no time did White threaten her or force her in any way to sign the lease. He gave her a copy of the lease after it was signed and she has had the lease in her possession ever since. The lease was dated April 18, 1952.
Plaintiff never looked at the lease before she opened the business, which was about September 1, 1952. About August 1953, plaintiff received a bill for heating costs. She then 'glanced through' the lease to see if there was anything in it calling for payment for heat. She did not notice the absence of a provision about the option because she 'wasn't looking for that.' She sent the heating bill and her copy of the lease to her attorney. In a letter to the attorney she pointed out to him that there was no provision in the lease for a heating charge and recited other grievances concerning the premises she occupied, but said nothing about the failure of the lease to contain an option to renew.
In the year 1955 (three years after the lease was executed) plaintiff began to hear rumors in the shopping center that she was going to lose her lease. She then looked at the lease and for the first time learned it contained no option to renew. She talked to White and told him she was upset about the rumors she heard and thought the lease contained an option to renew for an additional five years. He told her she had nothing 'to worry about.' When she asked him to give her 'something in writing,' he refused.
In the summer of 1957, when her lease was about to expire, White wanted her to move into larger quarters in the shopping center. She declined the proposal. After the lease expired eviction proceedings were instituted. Plaintiff stopped paying rent in June 1957 because she knew the lease would expire in August.
Excerpts from the deposition of Mr. Keil were read into evidence as a part of plaintiff's case. This witness testified that in the discussion with Mr. White as to the terms of the lease, plaintiff said 'she wanted a five-year lease with a five-year option' and that White said 'that he would take care of it and send her a satisfactory lease in a few days.'
The only witness for the defendants was defendant Thomas J. White. His testimony showed he was president of the defendant corporation, which became the owner of the shopping center after the lease with plaintiff was executed. He was agent for his mother when the lease was negotiated and executed. White said the lease...
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