Tracy v. Union Iron-Works Co.

• Decision Date: 11 May 1891
• Citation: 16 S.W. 203,104 Mo. 193
• Parties: TRACY v. UNION IRON-WORKS CO.
• Court: Missouri Supreme Court

16 S.W. 203

104 Mo. 193

TRACY v. UNION IRON-WORKS CO.

Supreme Court of Missouri, Division No. 1.

May 11, 1891.

PAROL EVIDENCE — TERMS OF LEASE.

1. The general rule excluding evidence of contemporaneous or prior verbal agreements varying or contradicting writings discussed, and the exceptions noted.

2. Where parties entered into a written lease of premises "in the present condition thereof," a prior verbal agreement, by which the lessor, after the lease began, was to add a switch to connect the premises with a railway line, is not admissible in evidence, being contradictory of the lease.

(Syllabus by the Court.)

Appeal from circuit court, Jackson county; TURNER A. GILL, Judge.

The lease mentioned in the opinion of the court is in these words, viz.: "This article of agreement witnesseth that H. W. Tracy has this day rented to the Union Iron-Works Co., of Decatur, Illinois, in the present condition thereof, the upper story of his business house known as 1305, 1307, and 1309 West Twelfth street, Kansas City, Mo., said company to have the use of elevator and platform in common with the other tenants of building, and to pay their fair proportion of water rates for same, and other uses about the house; also office desk-room and space for sample machine on first floor, for the period of one year from the first day of May, 1884, on the following terms and conditions, to-wit: For the use and rent thereof the said Iron-Works Co. hereby promise to pay said H. W. Tracy, or to his order, one thousand dollars per year for the whole time above stated, and to pay the same monthly on the first of each month; that they will not sublet, or allow any other tenant to come in with or under them, without the consent of the said H. W. Tracy that they will repair all injuries or damages done to the premises during their occupancy, or pay for the same; that all of their property, whether subject to legal exemption or not, shall be bound and subject to the payment of the rents and damages thereof; that they will take good care of the building and premises, and keep them free from fifth, from danger of fire, or any nuisance, and protect and defend the said H. W. Tracy from all charges for such; that the house and premises shall be fairly treated, kept clean, and left so; that in default of the payment of any monthly installment of rent for ten days after the same is due they will, at the request of the said H. W. Tracy, quit and render to him the peaceable possession thereof, but for this cause the obligation to pay shall not cease; and, finally, at the end of their term, they will surrender to said H. W. Tracy, his heirs or assigns, the peaceful possession of the said house and premises, with all the keys, bolts, latches, and repairs, if any, in as good condition as they received the same, the usual wear and use and providential destruction excepted. In case of any accident that may occur to elevator, the party at fault for same shall pay for all costs of repairing made necessary by such accident. In witness whereof the parties have subscribed to two copies hereof, one to be retained by each of the above-named parties. Dated this 25th day of April, 1884. [Signed] H. W. TRACY. [Seal.] UNION IRON-WORKS. [Seal.] A. R. MONTGOMERY, Sec'y. [Seal.]" The other facts necessary to an understanding of the case appear in the opinion.

Albery Young and W. A. Alderson, for appellant. Warner, Dean & Hagerman, for respondent.

BARCLAY, J., (after stating the facts as above.)

Plaintiff brought this action to recover certain installments of rent due from defendant according to the covenants of a lease dated April 24, 1884, under the seals of both parties, whereby plaintiff let certain business property in Kansas City, Mo., to defendant for one year from May 1, 1884, on terms, one of which was the payment of $1,000 rent during that period. Defendant went into possession, and concedes non-payment of the rent in dispute. The reason therefor appears in the counter-claim interposed. That part of defendant's answer, and the evidence supporing it, raise the only question presented on this appeal. Defendant's position is that the rent due is subject to reduction to the extent of damages sustained by defendant by the breach of a verbal agreement between plaintiff and defendant, the admissibility of which in evidence is the point in dispute. The trial court heard defendant's testimony on the subject fully, (over objections,) and then directed a verdict for plaintiff, a stipulation having been made at the outset of the trial that plaintiff was entitled to recover the amount claimed, unless the defense in question was established. The facts shown on defendant's part were that it was engaged in the manufacture and sale of corn-shellers and other farm machinery at Decatur, Ill. It rented the premises at Kansas City as a store-house and business office. When the negotiations for the lease began it was verbally agreed between plaintiff and defendant's representative that the former would put in a railway switch (to connect the premises with a railroad near by) for the use of defendant for shipping purposes. Something was then said about inserting this stipulation in the lease, but plaintiff declared it was not necessary, as the thing would be done by the time defendant would be ready to use the track after moving in, adding that his word was as good as his bond. Shortly afterwards the lease was prepared in Kansas City, and forwarded to Decatur for signature on the part of defendant. On examining its terms the defendant made an amendment by inserting the words, "Also office desk-room and space for sample machine on first floor," (as they now appear.) Then the instrument was formally executed by both parties. It contains no such express agreement as defendant now insists upon concerning a railway switch. It will be assumed that defendant's proof showed substantial damages in consequence of the want of the railway connection mentioned. On this showing the trial court directed a verdict for plaintiff. In due course defendant appealed to the Kansas City court of appeals, where the judgment was affirmed. The cause, however, was certified to the supreme court, as directed by the constitution, in view of a division of opinion among the judges of the court...