Wandell v. Ross

• Decision Date: 07 January 1952
• Docket Number: Nos. 21626-21628,s. 21626-21628
• Citation: Wandell v. Ross, 241 Mo.App. 1189, 245 S.W.2d 689 (Mo. App. 1952)
• Parties: WANDELL et al. v. ROSS et al. (two cases).
• Court: Missouri Court of Appeals

Page 689

245 S.W.2d 689

241 Mo.App. 1189

WANDELL et al. v.ROSS et al.(two cases).

Nos. 21626-21628.

Kansas City Court of Appeals, Missouri.

Jan. 7, 1952.

Clif Langsdale, Gibson Langsdale, Kansas City, for appellants.

Bundschu, Bailey & Hodges, Clarence H. Dicus and Glenn E. McCann, all of Kansas City, for respondents.

Richard C. Jensen, Kansas City, for appellant-respondent Joseph G. ross.

BROADDUS, Presiding Judge.

This is a suit by plaintiffsGene H. Wandell and Rebecca Wandell, against defendants Mamie, Frank J. and Joseph G. Ross, claiming damages for loss of future profits caused by an alleged breach of a written contract which defendants assert is a real estate lease, plaintiffs a license.Plaintiffs recovered judgment in the amount of $4000 against all three defendants.DefendantJoseph G. Ross filed a cross-claim against defendants Mamie and Frank J. Ross and recoverd judgment against them for any sum he should be forced to pay as a result of plaintiffs' said judgment.The three defendants appeal from the judgment in plaintiffs favor (our cases Nos. 21627-28) and defendants Mamie and Frank J. Ross also prosecute an appeal from the judgment in favor of defendantJoseph G. Ross, on his cross-claim (our case No. 21626).

Plaintiffs, husband and wife, are partners doing business as 'G.and R. Concessions.'Since 1945 the partnership has engaged in the business of furnishing hat checking services, selling tobaccos and sundry products in the Hotel President, Hotel Continental and other hotels and eating establishments in Kansas City, Missouri.

Defendants, Mamie, Frank J. and Joseph G. Ross, throughout 1947 were partners doing business as 'Ross' Il Pagliaccio Restaurant' in Kansas City, Missouri.The building in which the restaurant was located was owned by Mamie and Joseph G. Ross, parents of Frank J. Ross.

The instrument which forms the basis of this suit is styled 'Store Lease'.The first three paragraphs are as follows:

'This lease, made this 15th day of May, 1947, by and between Ross Il Pagliaccio Restaurant, party of the first part, hereinafter called the Lessor, and G. & R. Concessions, party of the second part, hereinafter called the Lessee.

'Witnesseth: That said Lessor hereby leases to said Lessee the hat checking space to the front and left of front entrance doors, the premises located at 600 East 6th Street, Kansas City, Missouri, to be used for the purpose of hat checking service, cigars, cigaretts, novelties, jewelry, confections, and/or kindred merchandise, for a term of three (3) years, beginning April 19th, 1947 and ending April 19th, 1950, and the said Lessee agrees to pay for use and rent thereof a total of Nine Hundred Dollars (900.00) per year at the rate of $100.00 per month for October, November, December, January, February and March, and $50.00 per month for April, May, June, July, August and September, on the first of each month.

'The Lessee covenants and agrees with the Lessor as follows:

'1.Lessee agrees to furnish adequate hat checking service for luncheons and dinners, and further agrees to discharge any employee that does not abide by the rules of the Il Pagliaccio establishment at the request of the management.It is further agreed that the Lessor hereby gives the Lessee an option to renew this lease for two (2) years after the end of the term hereof upon the giving of notice in writing to the Lessor on or before April 19th, 1950 at the rate of $1,200.00 per year payable $100.00 per month on the first day of each month.'

It contains other provisions usually found in leases.It was executed: 'Il Pagliaccio Restaurant, by Jos. R. Ross, Manager' and 'G.& R. Concessions, by Gene Wandell, Manager.'

Plaintiffs operated the hat checking concession in the restaurant from April 19, 1947 until November 30, 1947, at which time they were ordered from the premises by defendantFrank J. Ross.

The claim of defendantJoseph Ross to relief on his cross-claim against defendants Mamie and Frank Ross grows out of a property settlement agreement which was executed by all of them on February 18, 1948, incident to a divorce action instituted by Mamie against Joseph Ross in July, 1947.By paragraph 8 of that agreement Joseph G. Ross conveyed to Mamie and Frank Ross all of his interest in the restaurant, and Mamie and Frank Ross agreed to indemnify him from 'any debt or obligation of any kind of said business, except any undisclosed obligations which may have been incurred or created by Joseph G. Ross.'

This is a brief outline of the case.Additional facts will be set out as we consider defendants' assignments of error.

Defendants' first contention is that the court erred in not sustaining their motions for directed verdicts because: 'There was a surrender by operation of law which terminated any rights and interests of the plaintiffs under any tenancy whether by lease or otherwise.'

A surrender by operation of law results from acts which imply mutual consent independent of the expressed intention of the parties that their acts shall have that effect.32 Am.Jur. 766.

The evidence shows that plaintiffs quit the premises when they did because they were ordered by defendantFrank Ross to vacate by December, 1947.PlaintiffGene Wandell asked Frank Ross why he wanted to terminate the relationship and offered to make adjustments; but Frank Ross gave no reason--merely remained 'firm in his stand that he wanted us out.'On November 28, 1947, Mr. Wandell wrote a letter to Frank Ross stating: 'We cannot understand your attitude * * *.If there are any phases of our service that you or your guests do not like we will be only too glad for you to tell us so we can make necessary adjustments that will meet with your approval.'Accompanying this letter was plaintiffs' check for $100 payable to Frank Ross to cover rent for December, 1947, Frank Ross refused to accept this check and returned it to plaintiffs.

When all of Mr. Wandell's efforts failed Mrs. Wandell approached Frank Ross and said to him: 'I would like to discuss it with you and make some adjustment.He said: 'I want you out', in a loud voice; it created quite a commotion, and the customers all turned around and looked toward me from the bar, so I dropped it.And I went down after that, a few days after that, during the day, and went to his office and talked with him and begged him to tell me why he wanted us to vacate, and if there was any reason why that we could control, any adjustment we could make, we'd be most happy to make any adjustment that he wanted us to make in order to keep the concession; I was willing to go along with him on any suggestion and he refused to make any--all he would tell me was that he just wanted us out.'

From this it is obvious that plaintiffs desired to continue the relationship and it was only after all their efforts to retain it failed that they vacated the premises.Certainly defendants cannot rightfully maintain that plaintiffs created a surrender by operation of law merely because they did not wait to be bodily hurled from the restaurant.

All of the cases cited by defendants on this point are based upon the fundamental principle that a surrender takes place only when there is mutual consent and agreement, either actual or implied, to the termination.The facts in those cases called for the application of that rule.Those in the case at bar do not.

The next point advanced is that the contract was a lease conveying an interest in real property.Upon that basis defendants Mamie and Frank Ross assert that it is void as to them because they are not named in it nor did they personally execute it, nor was defendantJoseph Ross authorized in writing to execute it as their agent.Their contention is based upon the requirements of our statute, RSMo 1949, Sec. 432.050, V.A.M.S., that leases of real estate must be in writing, signed by the parties or their agents lawfully authorized by writing, otherwise they shall have the force and effect of estates at will only.

It is true that the instrument recites that it is a 'store lease' and contains technical words of demise.'But the mere fact that it is denominated as a lease and employs technical words of demise is not sufficient in law to constitute the instrument an indenture of lease if it, in fact, appears to be something other than that.'Whiteside v. Oasis Club, 162 Mo.App. 502, loc.cit. 506, 142 S.W. 752, 753.

This contract, although called a lease, is in the nature of a license.It merely gave plaintiffs the right to conduct a concession in defendants' place of business.A license in respect of real property has been defined as 'a privilege to go on the premises for a certain purpose, as, for example, the purpose specified in the instrument creating the license; it does not operate to confer on, or vest in, the licensee any title, interest, or estate in such property.'53 C.J.S., Licenses, Sec. 84.

The difference between a license and lease is set out in 32 Am.Jur. 30-31 where the following appears: 'It is recognized that it is often difficult to distinguish between a license and a lease. * * * the distinguishing characteristic of a lease that it carries a present interest and estate in the land for the period specified, and the criterion seems to be the right to the possession of the land, and if such right is not conferred, the transaction is to be deemed a license, profit, or easement.A license to do an act upon land involves the exclusive occupation of the land by the licensee, so far as is necessary to do the act, and no further, whereas a lease gives the right of possession of the land, and the exclusive occupation of it for all purposes not prohibited by its terms.'(Italics ours.)

The same principle is set out in 51 C.J.S., Landlord and Tenant, Sec. 6, p. 513 as follows: 'In other words, the principal test for determining whether the relationship created is that of landlord and tenant rather than that of licensor and licensee...