Ward v. Deck

• Decision Date: 08 September 1967
• Docket Number: No. 8616,8616
• Citation: Ward v. Deck, 419 S.W.2d 286 (Mo. App. 1967)
• Parties: Noah A. WARD and Katheryn Ward, Plaintiffs-Respondents, v. Jeff DECK and Lucille Deck, Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 286

419 S.W.2d 286

Noah A. WARD and KatherynWard, Plaintiffs-Respondents, v.Jeff DECK and Lucille Deck, Defendants-Appellants.

No. 8616.

Springfield Court of Appeals, Missouri.

Sept. 8, 1967.

Turner White, White & Dickey, Springfield, for defendants-appellants.

John B. Newberry, Springfield, for plaintiffs-respondents.

HOGAN, Judge.

This action was brought by plaintiffs, as lessees, to recover damages for defendants' failure to put them in possession under a lease.Upon a jury trial, the plaintiffs recovered the sum of $11,022.00, which was reduced to $4,000.00 by remittitur in the trial court.The defendants have appealed, principally upon the ground that plaintiffs' evidence of damages is insufficient to support a judgment in any amount.

At the time here involved, the defendants were the owners of a parcel fo realty located at the northeast corner of College and Grant in Springfield, Missouri.For several years prior to the execution of the lease in question, this corner had been occupied and used as a 'package liquor store,' i.e., for the sale of liquor in the original package, by one of a chain of such stores known as the Brown Derby Package Liquor Stores.For some reason which does not appear of record, the Brown Derby vacated the premises prior to April 1965, and the defendants built a new building at the same location.It is clearly inferable that at the time the new building was being constructed the defendants expected Brown Derby to execute a new lease, for defendantJeff Deck testified that when he and plaintiffs signed their lease 'Mr. Ward * * * well understood * * * that I had been negotiating with Brown Derby on a lease.'Nevertheless, no arrangements had been concluded with Brown Derby at the time the parties made the lease involved here, though subsequently the property was sold to Brown Derby by the defendants for $30,000.00, and is now used by Brown Derby as a package liquor store.

In this court, the defendants concede that the lease executed by them and plaintiffs was valid, and they concede that they breached their covenant to put the plaintiffs in possession.With the comment that defendants vigorously contested the case in the trial court, we state the background facts necessary to a reasonably clear understanding of the issues from a point of view most favorable to the result reached.

After the new building was practically complete, about the first of May 1965, plaintiffNoah A. Ward asked defendantJeff Deck, with whom he was well acquainted, if the Brown Derby was 'going back' in the new building.Defendant¹ replied that the former tenant had plans to do so, but if anything came up he would contact the plaintiff.A week or so later the parties again discussed the matter; the defendant expressed doubt that he and his former tenant could 'get together' and asked the plaintiff if he was interested in having the new building for $350.00 per month.Plaintiff was unwilling to pay this much, though he testified it was not necessarily 'too high'; he offered to execute a lease on a percentage basis and defendant tentatively agreed.Mr. Ward then said he would 'scout around' to see if he could find a liquor store for sale, because 'you have to buy someone out in order to get a City license,' and their discussion ended.Mr. Ward did locate a liquor store available for purchase and made a contract to buy it.Having done so, and believing that he had struck a bargain with the defendant upon which he could rely, plaintiff made a $500.00 partial payment on the liquor store and set a carpenter to work on the interior of the new building.

During the course of their negotiation, the parties had tentatively discussed a rental figure.Defendant, as indicated, originally wanted $350.00 per month, but plaintiff, who didn't want to 'tie (himself) down,' offered to pay four per cent of gross sales up to $5,000.00 per month and five per cent for 'all over that.'According to the plaintiff, at least, this seemed satisfactory to Mr. Deck.By Saturday, May 29, the plaintiff had 'gotten pretty well involved,' and advised defendant that he would have to have 'something in writing and get it signed tonight or else as far as I'm concerned the deal on that building is off.'Mr. Ward also told the defendanthe would rather 'forfeit that five hundred dollars * * * than * * * to go ahead and inventory that (liquor) store tomorrow and have all that stock and fixtures on my hand (sic) and then * * * get in the building with no lease.'The defendant, who had been protesting that Brown Derby had offered $360.00 per month without air conditioning, then 'kind of changed his attitude' and told Mr. Ward there was 'no need in doing that,' and consequently--this according to the plaintiff--the parties went over their previous oral agreements 'step by step, just what (was) in the lease.'On Saturday, May 29, the parties executed the following lease:

'LEASE

This lease made and entered into this 29th day of May, 1965, by and between Jeff Deck and Lucille Deck, hereinafter known as lessors and Noah A. Ward and Katheryn Ward hereinafter known as lessees.

'WITNESSETH: That lessees do hereby lease from lessors and lessors do hereby let to lessees a building located at the corner of College and Grant in Springfield, Greene County, Missouri.Said building being known as 653 College.

'This lease shall take effect on the above date and shall be for a period of one year.

'Lessees agree to pay lessors as consideration for this lease, 4% of the amount of gross sales made by lessees, on the premises, on the first $5,000.00 of gross sales and 5% of such gross sales above $5,000.00.It is agreed that such rent be paid at the end of each month of this lease.

'Lessors do hereby agree that lessees will use said premises for the sale of intoxicating beverages.Lessees agree that they will not assign this lease or sublet the premises without the written consent of lessors.

'Lessors agree that if the gross sales of lessees during the 12th month of this lease shall be $8,000.00 or greater that lessees shall have the option of extending this lease for an additional 4 years under the same terms and conditions as the original period.

'It is agreed that if the building be destroyed by fire or other casualty, so that it cannot be repaired, that either party may terminate this lease.

'It is agreed that lessees may remove all fixtures installed by them, at the time of termination of this lease.

'This lease shall be binding on the administrators, executors or other legal representatives of the parties.

'In witness whereof the parties have hereunto set their hands the year and day above written.

'/s/ Jeff Deck

'/s/ Lucille Deck

'/s/ Katheryn Ward

'/s/ Noah A. Ward'

On Wednesday, June 2, and before plaintiff had moved in, defendant announced, 'We're going to have to change the lease,' and indicated he would not abide by the terms.Plaintiff stated that he would have the lease checked to see if it was enforceable, and then left.As stated, the defendants now admit the validity of the lease and that they refused to allow the plaintiffs to occupy the premises.

The appellants have briefed and argued a number of points in this court.Inferentially, they have raised several complex and involved issues concerning the measure of plaintiffs' damages and the proper method of valuation of a leasehold, but a full discussion and resolution of all the questions they suggest is, in our view, unnecessary and probably imprudent upon the record presented.Manifestly, the plaintiffs' damage in this case is not readily susceptible to exact proof, but the case is not fairly comparable to Hough v. Jay-Dee Realty and Investment, Inc., Mo.App., 401 S.W.2d 545, as the defendants maintain.Not only did we restrict the Hough case to its peculiar facts; there the lessor's obligation was so nebulous--to build a 'first-class restaurant'--that the plaintiffs themselves conceded the impossibility of any recovery based on the usual measure of damages.This case is much more nearly comparable to those cases in which there has been an interruption of an established business, and while we have the opinion that one measure of the value of a leasehold is the present worth of the difference between the rent contracted for and the current rental value of the premises, St. Louis County v. State Tax Commission, Mo., 406 S.W.2d 644, 652--653(7--11);Land Clearance for Redevelop. Corp. v. Doernhoefer, Mo., 389 S.W.2d 780, 784(2, 3), we are unwilling to transmute any particular theory of real estate appraisal into a fixed legal principle by holding that there is one particular method of valuation which must be followed in this case.Of course, the method of valuation used must...