Wilson v. Weil

• Decision Date: 30 April 1878
• Citation: Wilson v. Weil, 67 Mo. 399 (Mo. 1878)
• Parties: WILSON, Plaintiff in Error v. WEIL.
• Court: Missouri Supreme Court

67 Mo. 399

WILSON, Plaintiff in Error

v.WEIL.

Supreme Court of Missouri.

April Term, 1878.

Error to St. Louis Circuit Court.

The case was tried before Hon. Jas. J. Lindley, one of the judges.

F. J. Bowman for plaintiff in error.

H. N. Hart and Krum & Madill for defendant in error.

NAPTON, J.

In 1864, Weil, being the owner of a lot in St. Louis, at the corner of Fifth and Pine, contracted with Wilson and his associate, Morris, to put up an opera house, and to let them occupy it for ten years from the date of its completion, at a rent of $6,000 per annum. As Wilson and Morris were to advance $10,000 towards the expense of the building, the last twenty months of the ten years were agreed to be rent free. The $10,000 was advanced, the house was built, and Wilson, who shortly after the contract, bought out his associate, Morris, continued in the occupation of the building till the spring of 1869. Being then behind hand in paying the rent, Weil instituted proceedings to get possession and recover the back rents due, and ultimately got a judgment against Wilson in 1870 for $3,994.67. Previous to this, in March, 1869, Weil and Wilson made the following agreement:

“It is hereby agreed by and between Joseph Weil and Frederick Wilson, as follows: 1st. Fred Wilson agrees to pay Jos. Weil the sum of $83.33 weekly, in advance, for the use and occupation of the premises known as ‘Wilson's Opera House,’ with all the scenery and appurtenances therein contained and used in the minstrel and theatrical business, said rental to be for the period of six months from the date hereof, or until the 25th September, 1869. Should the said Wilson fail or refuse to pay said weekly rent as stipulated, for the period of two consecutive weeks, then he shall, upon written notice, restore said premises to Joseph Weil, free from all recourse or incumbrance whatever. It is further agreed that if said Wilson shall pay, or cause to be paid, all back rent accrued under the lease of said premises, within the period above named, the said premises shall be restored to him under the lease, with all the rights and immunities thereof. It is also agreed that said weekly rent shall commence from the date said Wilson shall return from New Orleans, on or before the 17th of May, 1869, and that during the absence of said Wilson, said Weil shall have control of said opera house for the purpose of renting the same, and all rent received therefor shall be applied on account, for the payment of the back rent due from said Wilson. Witness our hands and seals this 26th day of March, 1869.

FRED WILSON, [SEAL.]

JOSEPH WEIL, [SEAL.]”

The present action is brought to recover damages for an alleged breach of this contract by the defendant Weil, in refusing to deliver to Wilson the opera house, on his return from New Orleans, in May, and the damages claimed are not merely the value of this lease of 1869, but the value of the prior lease of 1864. The defense, on the part of Weil was, that this obligation of March, 1869,...