Yacobian v. J. D. Carson Co.
| Decision Date | 18 November 1947 |
| Docket Number | 27251 |
| Citation | 205 S.W.2d 921 |
| Parties | YACOBIAN v. J. D. CARSON CO., Inc |
| Court | Missouri Court of Appeals |
'Not to be reported in State Reports.'
Max Sigoloff and Myron L. Silver, both of St. Louis, for appellant.
Jones Hocker, Gladney & Grand, V. L. Boisaubin, and Lon Hocker Jr., all of St. Louis, for respondent.
HUGHES
This suit is in equity for the specific performance of an oral agreement to make and deliver a written lease. The facts are undisputed. The defense is based on the statute of frauds § 3354, R.S.1939, Mo.R.S.A. § 3354.
Defendant is the lessee under a lease from the owner of a five story and basement building known as 1113-1115 Locust Street in the City of St. Louis, Missouri, dated March 26, 1946, for a period of three years from April 1, 1946, at a monthly rental of $ 600.00, subject to a lease from the owner to plaintiff, dated August 11, 1945, of the first floor of the building, except a portion thereof used by defendant as a shipping room, plaintiff's lease containing a 90 day cancellation privilege. Defendant's lease granted to it the privilege of sub-leasing the first floor of the building.
On March 29, 1946, plaintiff and defendant after discussing the matter of a lease to plaintiff, orally agreed that defendant would enter into a written lease to plaintiff of the first floor of the building except that portion thereof used by defendant as a shipping room, for a period of three years, commencing on the first day of April, 1946, and ending on the 31st day of March, 1949, for a monthly rental of $ 300.00, payable in advance, and that plaintiff was to deposit in escrow the sum of $ 3,000.00 in cash or negotiable securities to guarantee the payment of the last ten months of the term of the lease. Pursuant to this oral agreement defendant's attorney prepared and delivered to plaintiff's attorney, on March 30, 1946, a written lease, in triplicate, attached to each copy of which was an escrow agreement as to the deposit of the $ 3,000.00. Plaintiff on the same day signed the written lease and the escrow agreement and returned them to defendant's attorney. Plaintiff had purchased $ 3,000.00 of United States Government Bonds on March 27, 1946, for the purpose of carrying out his part of the escrow agreement. The parties had agreed upon a trust company with which the $ 3,000.00 was to be deposited and held under the escrow agreement, assuming that the trust company would act without remuneration therefor. On April 8, 1946, defendant's vice-president informed plaintiff's attorney over the telephone that the trust company wanted $ 50.00 a year or $ 150.00 for the three years for acting under the escrow agreement, and he thought that was entirely too much to pay them, and that he had been negotiating with a bank which was willing to act for $ 25.00 a year. Plaintiff's attorney told defendant's vice-president that he would have no objection to substituting the bank for the trust company, but that it would be in order for the defendant to pay the escrow fee because the escrow agreement was for the defendant's benefit. The next day, April 9, 1946, defendant's vice-president told plaintiff's attorney over the telephone that the whole thing was off and that defendant did not intended to go on with the deal. This suit followed.
The case being tried, the trial court rendered a decree in plaintiff's favor, by which it decreed that the agreement in suit, being one to make and deliver a written lease and not one of lease itself, the said agreement being performable within one year by the actual making and delivery of the written lease, it not within the inhibition of section 3354, R.S.Mo.1939, Mo.R.S.A., pleaded by defendant in defense; and further that plaintiff, having fully performed, or offered to perform, his part of the agreement, and defendant having failed and refused to perform its part of the agreement by refusing to sign and deliver to plaintiff the written lease, and on account of the manifest injustice to plaintiff because of defendant's failure and refusal to sign and deliver said written lease, the statute of frauds, pleaded by defendant, being section 3354, R.S.Mo.1939, Mo.R.S.A., is not a defense in equity.
Specific performance of the oral agreement was decreed, and after unavailing motion for a new trial, defendant appeals.
We are first met with respondent's challenge to the jurisdiction of this court to hear and determine the appeal, on the theory that the amount involved is the rental of $ 300.00 per month for 36 months, less three months that plaintiff would be entitled to possession under his prior lease, which would be $ 9,900.00 involved in this case. He therefore contends that under the provisions of Section 3, Article V of the Constitution of Missouri, Mo.R.S.A., the appeal should have been to the Supreme Court because the amount involved, exclusive of costs, exceeds the sum of $ 7500.00. We have heretofore overruled plaintiff's motion to transfer the case to the Supreme Court, but the contention is again urged in respondent's brief. Plaintiff's petition seeks no money judgment but only asks that the court exercise its equitable jurisdiction and specifically require defendant to execute and deliver to him a written lease. There is no evidence in the case by which damage in dollars can be fixed by either the granting or withholding of the relief prayed for by plaintiff. The rent reserved would not be a criterion. The proposed lease provides for cancellation in case of the property being destroyed by fire, or the elements, or such material injury thereto as to render the premises untenantable for sixty days. The jurisdiction of the Supreme Court must affirmatively appear from the record before that court will accept jurisdiction; and neither the Supreme Court nor this court may indulge in speculation or conjecture for the purpose of fixing the jurisdictional amount involved. The appellate jurisdiction of the Supreme Court attaches when, and only when, the record of the trial court affirmatively shows that there is involved in the controversy, independent of all contingencies, an amount exceeding $ 7500.00. A mere chance that the amount in dispute may exceed $ 7500.00 does not give the Supreme Court jurisdiction. It must appear affirmatively and with certainty from the record of the trial court that the amount in dispute exceeds $ 7500.00. Higgins v. Smith, 346 Mo. 1044, 144 S.W.2d 149; Warmack v. Crawford, Mo.Sup., 192 S.W.2d 406. In this case if the decree is denied plaintiff, how much is he damaged? Certainly not the rent reserved in the proposed contract. He will not have to pay it. If he is given the relief, how much is defendant damaged? Certainly not the amount of rent reserved because it will be paid, if the contract continues in force. All that is involved in the case is the right or want of right in plaintiff to a written rental contract of uncertain and undetermined value. We think jurisdiction of the appeal is in this court.
The issue in this case is whether plaintiff is entitled to specific performance of an oral contract to lease property, which cannot be performed within one year from the making of the contract, in view of the statute of frauds. There is no question in the case of either partial or full performance, which might or might not be an exception to the statute of frauds and furnish a ground for specific performance. No such issue was plead nor raised in the trial. The sole and only issues tried were, first, whether the statute of frauds as to leases applies only to the sale of an executed lease, and, second, whether an oral agreement to enter into a written lease that cannot be performed within one year, stands on any better footing than an oral lease agreement. Those are the only issues tried below or briefed and submitted here. The statute of frauds, Section 3354 R.S.1939, Mo.R.S.A. § 3354, so far as applicable here, is as follows:
'No action shall be brought to charge * * * any person * * * upon any contract made for the sale of lands, tenements hereditaments, or an interest in or concerning them, or any lease thereof, for a longer time than one year, or upon any...
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