Ver Steeg v. M. Longo Fruit Co.

Decision Date06 June 1911
Citation138 S.W. 901,158 Mo. App. 126
PartiesVER STEEG v. M. LONGO FRUIT CO.
CourtMissouri Court of Appeals

An owner orally contracted to execute a written lease of his premises for a term of years, he to make specified improvements on the premises. He made the improvements and placed the lessee in possession, but he did not execute a lease. Held, that the owner did not make full performance to take the contract out of the statute of frauds.

Appeal from St. Louis Circuit Court.

Action by Walter B. Ver Steeg against the M. Longo Fruit Company. From a judgment for plaintiff, defendant appeals. Reversed.

This is an action to recover damages for breach by defendant of its oral contract to take and execute as lessee, a written lease of real property for a term of years, the plaintiff alleging and relying on full performance by him to take the case out of the statute of frauds. The defendant by its answer and by its objection to the establishment of the contract by parol evidence distinctly raised the issue that the contract was within the statute of frauds, and denied that there had been such full performance.

It appears from the plaintiff's evidence, which was parol and was admitted over the objection of defendant, that in the latter part of May, 1906, the plaintiff, being the owner of a business building in the city of St. Louis, made a parol agreement with the defendant that, if the plaintiff would install a freight elevator in the building, then the plaintiff, as lessor, and defendant, as lessee, would make and enter into a written lease of part of the second story of the building for a term to begin June 1, 1906, or as soon thereafter as the elevator should be completed, and ending August 1, 1908, at a rental of $50 per month. A few days after said parol agreement was made, the plaintiff commenced work on the elevator, and, before it was finished, the defendant took possession of the premises. While the work on the elevator was in progress, the plaintiff prepared a form of lease which was in accordance with the parol agreement, and which we may say was in the usual form and called for the signature of the lessor as well as for that of the lessee, and transmitted it to the defendant with a request that the defendant execute and return, promising that thereupon he, the plaintiff, would sign a duplicate thereof for the defendant. There is no allegation or evidence that the plaintiff ever signed the lease or a duplicate of it, and, as we understand the evidence, the contrary is the fact. The defendant refused to sign the lease on the ground that the plaintiff had promised to put in a staircase as well as to put in the elevator, and its evidence tends to prove that the parol agreement included such staircase. After occupying the premises some four months, all the time it seems insisting that it was only a tenant from month to month, and paying the rent of $50 per month as such, the defendant vacated the premises after giving one month's notice of its intention so to do. At the instance of the plaintiff, the court declared the law to be that "if the court shall find and believe from the evidence that a verbal or parol agreement was entered into between plaintiff and defendant for a lease of the premises mentioned in the evidence, and that said verbal agreement was fully performed on the part of the plaintiff, by...

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