[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Appeal
from St. Louis City Circuit Court.--Hon. O'Neill Ryan
Judge.
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 and
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 William 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. 19, 1901.
"Rutledge & Kilpatrick R. E. Co., City.
"Gentlemen:
Relative to your buildings, numbers 1131 and 1139 inclusive,
Collins street, 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 a 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.,
"Per
ROBERT 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 $ 88.33, 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 sixth of
February--before the sixth 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
March, 1902. In the latter month memoranda of a lease were
drawn up in duplicate, as follows:
"This
indenture made the thirty-first day of December, in the year
of our Lord, A. D. nineteen hundred and one, between Edmund
Realty Company, a corporation organized under the laws of the
State of Missouri, party of the first part, hereinafter
called the lessor, and Becker-Moore Paint Company of the city
of St. Louis, State of Missouri, party of the second part
and hereinafter called the lessee,
"Witnesseth:--That
the said lessor in consideration of the rents, covenants and
agreements mentioned and reserved on the part of the said
lessor, its executors, administrators, and assigns, has
leased, and by these presents does lease to the said lessee,
"Certain
premises known as No. 1131 and No. 1133 Collins street,
consisting as follows: No. 1131 being a three-story and
basement brick building and No. 1133 being a two-story brick
building, and being situate on the southwest corner of
Collins and Biddle streets, in city block No. 71 w., in the
city of St. Louis, State of Missouri, to commence on the
first day of January, A. D. nineteen hundred and two, for and
during the term of three years at the yearly rental of one
thousand dollars ($ 1,000) for the first two years of said
term payable in equal monthly installments in advance of
eighty-three dollars and thirty-three cents ($ 83.33); and at
the yearly rental of twelve hundred dollars ($ 1200) for the
third year of said term, payable in equal monthly
installments in advance of one hundred dollars ($ 100). The
privilege is given to renew this lease after the third year
for two more years at the yearly rental of twelve hundred
dollars ($ 1200).
"And
failure to pay each month's rent when due and after a
demand for the same, to produce a forfeiture of this lease,
if so determined by said lessor, or its successors. The lease
of said tenement, or any part of it, is not assignable, nor
is said tenement, or any part of it, to be underlet under
penalty of forfeiture, without the written consent of said
lessor; provided said lessee may sublet one of said
buildings. And it is hereby covenanted, that at the
expiration of this lease, the said tenement and premises are
to be surrendered to said lessor, its heirs, assigns or
successors, in the condition received, only excepting natural
wear and decay or the effects of fire. The total destruction
of said building by fire, lightning or storm shall cause a
termination of this lease at the option of either of the
parties hereto, but in the event of a partial destruction of
said premises, by fire, lightning or storm, not resulting
from any neglect on the part of the said lessee, then this
lease shall not be terminated, but the rent shall be reduced
in proportion to said actual damage done to said premises,
until the said damaged portion may be repaired, or restored
to said lessee, which the said lessor covenants to do or
cause to be done with all possible speed.
"All
repairs made by the said lessee, all heating and steam pipes,
elevator, and all other improvements made by the lessee,
shall remain the property of the said lessor, at the
expiration of this lease. Said lessor agrees to keep the
walls, roofs, all down-spouts, guttering and private alleys
in good repair during the continuance of this lease. All
repairs deemed necessary on the interior of said premises by
the said lessee, to be made at the expense of the said
lessee, with the consent of the said lessor, and not
otherwise.
"The
said lessee is also to have the use of the private alley
around the above-described premises.
"The
said lessee, and all holding under it, hereby engage to pay
the rent above reserved, and double rent for every day it, or
any one else, in its name, shall hold on to the whole or any
part thereof of said premises after the expiration of this
lease, or of its forfeiture for...
