Von Schleinitz v. North Hotel Co.

• Decision Date: 14 October 1929
• Docket Number: No. 27704.,27704.
• Parties: RENE VON SCHLEINITZ, Appellant, v. NORTH HOTEL COMPANY ET AL.
• Court: Missouri Supreme Court

23 S.W.2d 64

RENE VON SCHLEINITZ, Appellant, v. NORTH HOTEL COMPANY ET AL.

No. 27704.

Supreme Court of Missouri, Division One.

October 14, 1929.

Appeal from Jackson Circuit Court. — Hon. Brown Harris, Special Judge.

REVERSED AND REMANDED (with directions).

Meredith & Harwood for appellant.

(1) Acceptance of surrender and release of tenant from further liability is a matter of intention of the parties, to be arrived at from their conduct. Schulte v. Haas, 287 S.W. 816; Sander v. Commission Co., 121 Mo. App. 293; Leggett v. Exposition Co., 157 Mo. App. 108; 35 C.J. 1094; Livermore v. Eddy's Admr., 33 Mo. 547; Sessinghaus v. Knoche, 127 Mo. App. 300; Gerhart Realty Co. v. Brecht, 109 Mo. App. 25; 16 R.C.L. 972. (2) On abandonment by the tenant, the landlord may permit the premises to remain vacant or he may mitigate the loss by getting what he can out of the premises. 16 R.C.L. 972, 1154; West Side Auction Co. v. Life Ins. Co., 186 Ill. 156; Nelson v. Thompson, 23 Minn. 512; Respini v. Porter, 89 Cal. 464; Sander v. Commission Co., 121 Mo. App. 293; Sessinghaus v. Knoche, 127 Mo. App. 300; Gerhart Realty Co. v. Brecht. 109 Mo. App. 25; Schulte v. Hass, 287 S.W. 816; Commercial Building Co. v. Lehman, 6 S.W. (2d) 1001. (3) The North Hotel Company could not be chattel mortgage give a lien on its property good as against its creditors to secure notes which represented the personal indebtedness of its president, i.e., the unpaid purchase price of the capital stock of the company. Nat. Tube Works Co. v. Refrig. Co., 183 Mo. 365; Hunter v. Garanflo, 246 Mo. 131; Gilbert v. Mfg. Co., 98 Fed. 208; Re Haas Co., 65 C.C.A. 218, 131 Fed. 232; Re Stucky Trucking Co., 243 Fed. 287; Hess v. Lumber Co., 245 Pac. 753; Re Romadka Bros. Co., 132 C.C.A. 557, 216 Fed. 113; 14a C.J. 111, sec. 1878.

Walsh & Aylward for respondent W.J. Skeer; E.M. Metcalf for respondent J.E. Secrest; John A. McGuire for respondent Fred W. Colegrove; Gossett, Ellis, Dietrich & Tyler for respondent Ben Hurst; Mertseimer & O'Donnell for respondent E.H. Lowry.

(1) Under the undisputed evidence in this case there was a surrender and acceptance by operation of law and therefore a termination of the relationship of landlord and tenant, with a resulting discharge from all subsequent liability under the lease. Jones, Landlord & Tenant (1906 Ed.) pars. 549, 551; Baker v. Music Co. (Cal. App.), 146 Pac. 1056; 35 C.J. 1089; 16 R.C.L. 970-1; Mining Co. v. Hodge, 185 Mo. App. 138; Churchill v. Lammers, 60 Mo. App. 244; Sharon v. Am. Fidelity Co., 157 S.W. 972; St. Louis Bill Posting Co. v. Stanton, 154 S.W. 821; Hanson v. Russell, 75 Mo. App. 110; Producers Pkg. Co. v. Fisher, 283 S.W. 747; In re Mullins Clo. Co., 238 Fed. 58, certiorari denied, 243 U.S. 635; Johnson v. Watkins, 26 Ga. App. 759; Flanagan v. Dickerson, 229 Pac. 552, 103 Okla. 206; Taylor v. Kennedy, 228 Mass. 390; Rafferty v. Klein, 256 Pa. 481; Bernard v. Renard, 165 Pac. 694, 175 Cal. 230; Tracy v. Thum, 267 Pac. 398, 125 Ore. 323; In re Frey, 26 Fed. (2d) 472; West Concord Mill Co. v. Hosmer, 129 Wis. 8; Palmer v. Meyers, 79 Ill. App. 409; Armour & Co. v. Pack. Co., 116 Iowa, 723; 45th East Fifty-Seventh St. Co. v. Millar, 212 N.Y. Supp. 95; 18 A.L.R. 960. (2) The appellant could not acquire the $17,500 deposit free from the lien of the Hurst chattel mortgage absent consent of mortgagee or of holder of notes secured by mortgage. 36 A.L.R. 1379; Gorin Savings Bank v. Early, 260 S.W. 480. (3) The appellant is in no position to complain about the Hurst chattel mortgage. There was no issue made attacking its validity in the pleadings or in the trial below, and appellant recognized it in his petition, the respondents in their answers set up the chattel mortgage and assert the lien thereof, all of which answers stand undenied by appellant, and appellant's claim that chattel mortgage is ultra vires cannot now be considered for the first time on appeal. 21 C.J. 670, 672, 552; Wallace Bank & Trust Co. v. Bank, 237 Pac. 289; Meholin v. Carlson, 107 Pac. 755; Martin v. Land Inv. Co., 146 S.W. (Ky.) 738; Dairy Co. v. Bank, 315 Mo. 849, 288 S.W. 359; Walsh v. Walsh, 226 S.W. 236; Silverthorn v. Lumber Co., 190 Mo. App. 716, 176 S.W. 441; Whitlock v. Crowe, 278 S.W. 788; Casteel v. Dearmont, 229 S.W. 816; Bank v. Romine, 136 S.W. 21; Louisville & N. Railway Co. v. Whitaker, 300 S.W. 912, 222 Ky. 302; Dobbs v. Dobbs, 143 S.E. 702; Dittmerer Real Estate Co. v. Surety Co., 289 S.W. 877; Sturtevant Co. v. Mfg. Co., 315 Mo. 1025, 288 S.W. 59. (4) Appellant recognized the validity of the North Hotel Company mortgage (to the making of which he had consented) when he entered into novation referred to as "Exhibit G" and by claiming the benefits under said agreement and by his own pleadings and evidence setting up such chattel mortgage and asking to have the lien thereof determined to be inferior to his alleged lien, appellant therefore is now estopped to deny the validity of the chattel mortgage. Williams v. Kimball Co., 188 Mo. App. 650; Curry v. Lafon, 133 Mo. App. 163; Dunbar v. Cazort-McGehee Co., 131 S.W. 698.

SEDDON, C.

This is a suit in equity, commenced in the Circuit Court of Jackson County, at Independence, on March 2, 1925, wherein plaintiff (appellant herein), as the owner of a four-story and basement hotel building, and the land upon which said building is erected, described as lots 19 and 20 in Union Station Addition in Kansas City, Missouri, seeks a judgment in the sum of $37,137 for accrued and unaccrued rents, together with the cost of making certain repairs to said building, under the terms of a written lease, dated July 5, 1919, by and between J. North Mehornay, a former owner of said real estate, as lessor, and Frank Josephson and Samuel N. Josephson, as lessees, and under certain written modifications of, and supplements to, said lease, subsequently made, and wherein plaintiff further asks to have the judgment sought for such accrued and unaccrued rents, and for such repairs, to be declared and adjudged to be a first, prior and superior lien upon and against all of the furniture, fittings, fixtures and equipment contained in said hotel building and located upon said premises, together with a foreclosure of such equitable lien by sale of said personal property, furniture, fittings and equipment.

The defendants in said suit are the North Hotel Company, a corporation, and Ben Hurst, W.J. Skeer, E.H. Lowry, Fred W. Colegrove and J.E. Secrest, individuals. The corporate defendant, North Hotel Company, failed to appear in said action and defaulted. The individual defendants aforesaid filed separate answers, seeking certain affirmative relief, and claiming an interest, right and title in and to said personal property, and in and to a certain deposit or fund of $17,500 paid to the original lessor, Mehornay, by the original lessees, Josephson, under the terms of said written lease agreements, and which deposit or fund is now held by the plaintiff, the interest, right and title claimed by said individual defendants arising out of a certain chattel mortgage, dated April 7, 1922, executed by defendant, North Hotel Company, as mortgagor, in favor of defendant. Ben Hurst, as mortgagee, to secure the payment of nineteen certain promissory notes made by the defendant. E.H. Lowry, payable to the order of said defendant, Ben Hurst, aggregating the principal sum of $9,500; and the individual defendants, by their separate answers herein, pray that such chattel mortgage be declared and adjudged to be a first, prior, paramount and superior lien upon said personal property, furniture, fittings and equipment, and against said deposit or fund of $17,500, held by, and in possession of, plaintiff at the time of the commencement of plaintiff's equitable action.

A trial of the action resulted in a decree favorable to the claims of the individual defendants, as presented by their separate answers herein, and plaintiff was allowed an appeal to this court from the decree so entered. We retain jurisdiction of the appeal because the pecuniary amount in controversy between the respective parties exceeds $7,500, exclusive of costs.

The evidence herein is mostly documentary. From such documentary evidence, we glean the following facts:

J. North Mehornay was the owner, in the year 1919, of a vacant and unimproved tract of land in Kansas City, described as lots 19 and 20 in Union Station Addition, and known as No. 2027-29 Main Street. On July 5, 1919, said J. North Mehornay, as lessor, entered into a written lease of said described premises with Frank Josephson and Samuel N. Josephson, as lessees, wherein said premises were leased to the said lessees and their assigns for a term of twelve and one-half years, beginning on February 1, 1920, and ending on July 31, 1932, at and for an agreed rental of $1460 per month, payable by the lessees to the lessor on the first day of each and every month during said term of twelve and one-half years. The lease agreement obligated the lessor, Mehornay, to erect on said vacant land a three-story and basement, brick and stone hotel building, having at least seventy-four guest rooms. Under the terms of said written lease, the lessees, Josephson, covenanted and agreed with the lessor, J. North Mehornay, "to punctually pay the rental; to take good care of said premises, and keep the interior of same in good repair, usual wear and providential destruction excepted, ... and to repair all injury or damage done or occasioned to said premises by their neglect; and at the expiration of the term hereby created, whether terminated by lapse of time or otherwise, to surrender to lessor quiet and peaceable possession of said premises hereby let, with all appurtenances and fixtures, in as good condition as same were taken possession of, usual wear and tear and damage or destruction by fire, proceedings at law, or by any providential means excepted: ... and should the lessees fail to make, or cause...