Ver Steeg v. Becker-Moore Paint Co.

• Decision Date: 12 April 1904
• Citation: 80 S.W. 346,106 Mo. App. 257
• Parties: VER STEEG v. BECKER-MOORE PAINT CO.
• Court: Missouri Court of Appeals

80 S.W. 346

106 Mo. App. 257

VER STEEG v. BECKER-MOORE PAINT CO.

St. Louis Court of Appeals. Missouri.

April 12, 1904.

UNLAWFUL DETAINER—PLEADING—AMENDMENT — LEASE — EXECUTION — EVIDENCE—ALTERATION —LICENSE—APPEAL—HARMLESS ERROR.

1. After an action of unlawful detainer was removed by certiorari from a justice to the circuit court, it was proper to permit an amendment of the complaint increasing the amounts demanded as damages and for the rents and profits.

2. Under Rev. St. 1899, § 3324, providing that a justice of the peace shall issue a summons in unlawful detainer, on the filing of a verified complaint describing the tenements unlawfully detained and stating by whom and when they were detained, an amendment of the complaint, on appeal to the circuit court, by increasing the amounts demanded for damages and for rents and profits, without a new verification, does not deprive the circuit court of jurisdiction.

3. In the case of a month to month tenancy, where the lessee went into possession on the 6th of the month, but his first payment was up to the 1st of the next month, the tenancy is deemed to run from the 1st of each month to the 1st of the next.

4. Where a writing stated that "it is agreed that a lease will be given" on certain terms, and was preceded by a letter in which different terms were proposed, and parties subsequently agreed on still other terms, the writing did not constitute a lease, though it was accompanied by a payment of rent and the lessee took possession.

5. In an action of unlawful detainer, where no unlawful entry was asserted, a writing which showed a license to enter, but no lease, was not admissible in evidence.

6. Where an instrument executed by a lessor's agent was not a lease, but only an agreement to execute one, and the lessee became a tenant from month to month, it was not error, in an action of unlawful detainer against the lessee, to exclude evidence to show that the lessor was estopped to deny the agent's authority to execute the instrument.

7. An issue of fact is concluded by the verdict of the jury, acting under proper instructions and rulings as to evidence.

8. Alterations in a lease, without the consent of the lessor, before its execution by the lessee, giving the privilege of subletting, and binding the lessor to make repairs, were so material that the assent of the lessee to the lease, with the modifications, did not make the contract binding.

9. Testimony of a witness for the plaintiff that leases were sent to the defendant on a certain date justified the statement by the court that plaintiff asserted they were delivered on that date, when the instruction did not assume that they were in fact delivered then.

10. Where a lessor delivered two copies of a lease to the lessee for execution, but the lessee made certain interlineations before executing them, the fact that the lessor afterwards secured possession of one of the altered copies executed by the lessee does not estop it to deny the validity of the lease, where it secured such possession merely to copy the lease.

11. Any error in admitting in evidence a letter inclosing leases was harmless, where it was admitted that there was a delivery of the leases to the addressee in some manner.

12. Where, in an action of unlawful detainer, the defendant testified that the lessor's agent refused to deliver leases which he had executed because of the cancellation of insurance on a building near by owned by the lessor, and the agent testified that he might have said the insurance was canceled, but that he did not refuse to deliver the leases on that account, evidence that there was no difficulty in securing insurance on the neighboring building was irrelevant.

13. In an action of unlawful detainer, where the jury brought in a verdict for plaintiff for $1, though the premises had been detained six months, and their rental value was $150 a month, it was proper for the court to refuse to accept the verdict, and, after they retired and reconsidered the case, to accept their second verdict for $900.

Appeal from St. Louis Circuit Court; O'Neil Ryan, Judge.

Action by Walter B. Ver Steeg against the Becker-Moore Paint Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

W. B. & Ford W. Thompson, for appellant. T. Percy Carr, for respondent.

Statement of the Case.

GOODE, J.

This is an action of unlawful detainer, instituted before a justice of the peace to obtain possession of a four-story brick building, known as "Dr. J. H. McLean's Laboratory Building," 1131 Collins street, in the city of St. Louis, and six buildings, Nos. 230 to 240, inclusive, on Biddle street, at the corner of Collins.

As originally filed the complaint laid the damages at $500, and the monthly value of the rents and profits at $300. The case was removed by writ of certiorari to the circuit court, in which court the respondent was permitted to amend the complaint by demanding $3,000 damages for the detention of the premises and laying the value of the rents and profits at $450 a month. An exception was saved to this amendment, and it is contended that, as the complaint was not again verified by affidavit after it was amended, the circuit court had no jurisdiction to try the case. The defendant, the Becker-Moore Paint Company, was organized as a corporation subsequent to November 19, 1901. Said corporation became the tenant and occupant of the premises under an arrangement with their then owner, the Edmund Realty Company, a corporation. The Rutledge & Kilpatrick Real Estate Company, another corporation, acted as agent of the Edmund Realty Company in leasing and selling the property in controversy.

The appellant's occupancy of the premises began subsequent to the following correspondence between the Edmund Realty Company and Wm. E. Becker, president of the appellant company, contemplating the incorporation of the Becker-Moore Paint Company and its tenancy of the premises under a lease to be given to it by the Edmund Company:

                                "St. Louis, Nov. 19th, 1901
                

"Rutledge & Kilpatrick R. E. Co., City— Gentlemen: Relative to your buildings, numbers 1131 and 1139, inclusive, Collins St., I propose to lease same on the following terms: Five years' lease with privilege of renewal for five years. Terms: one thousand dollars per annum for the first three years, and nine hundred dollars per annum for the remaining two years. Terms of renewal to be nine hundred dollars per annum for a term of five years, under the following conditions: Landlord to keep walls, frames, sash, roof, and all gutters and down spouts in good condition, with privilege of use of alleys on south and west side of buildings during the life of the lease and the necessary repairs explained to your Mr. Bakewell. Rent to begin when entire possession is given us. We agree to make deposit on execution of lease, the same to be applied on rent. Awaiting your prompt consideration and reply, I am,

                    "Yours very truly
                         "Wm. E. Becker
                                "603 Franklin Avenue."
                

To that proposition no formal reply was made, but Becker took possession of such portions of the premises as were then vacant, and the Edmund Realty Company gave the following receipt and agreement:

"Exhibit G.

"Received of William E. Becker et al. the sum of eighty-three dollars and thirty-five cents (83.35) for one month's rent of buildings 1131 to 1139 Collins street, being the two buildings on the southwest corner of Collins and Biddle streets. Rent to date from time full possession is given to him. It is agreed that the lease will be given to William E. Becker et al., or their assigns, for five years; rent to be at rate of one thousand dollars ($1,000) per annum for the first two years, and at the rate of twelve hundred dollars ($1,200) per annum for the next three years. All repairs to be done as per letter of November 19th.

                  "Edmund Realty Company
                  "Rutledge & Kilpatrick Realty Co
                               "By Robt. Rutledge, V. P."
                

Those documents were offered in evidence by the appellant, and excluded by the court, and an exception saved. In connection with the offer of the document marked "Exhibit G," this statement of counsel for the appellant as to the purpose of the offer was made: "I offer this contract for two reasons: First, to show that the Rutledge & Kilpatrick Realty Company received the rent of these premises, and that the rent under the terms of that receipt was to begin after full possession was given. Now, then, that was the first step taken. I have identified the checks and contract and everything, that we paid that rent, paying the first month's rent that was to be paid under the lease, and that we paid that rent after the lease was executed. In other words, that this contract was the beginning of the negotiations, and that we took these different steps. We first paid the $83.33, or $65.66 in November. We got that paper in November. In pursuance of that authority we took possession of the property. We made the improvements upon the property. In February—on the 6th of February—before the 6th of February— In January we agreed to pay part of the expenses of a compromise with Fee and Morrison, and we went on with these improvements. Then we got possession of this instrument for examination. Afterwards we got a letter from Mr. Bakewell, which we have here, not yet read in evidence. Now, we claim this is a part of the steps that were taken in order to secure that lease, and that we are entitled to the lease, and that we accepted the lease."

The understanding was that the rent of the premises should not begin until complete possession was obtained by Becker or his intended corporation, which did not occur until February 6, 1902; and, though the above receipt for one month's rent was given in November, 1901, the rent then paid was applied by a subsequent agreement between the Edmund Company and the appellant in satisfaction of the rent for the month of ...