J.E. Blank, Inc., v. Lennox Land Co.

Full title: J.E. BLANK, INC., Appellant-Respondent, v. LENNOX LAND COMPANY, a…

Court: Supreme Court of Missouri, Court en Banc

Date published: Nov 1, 1943

351 Mo. 932 (Mo. 1943)

174 S.W.2d 862

Opinion

Nos. 37647-37649.

July 20, 1943. Rehearing Denied, November 1, 1943.

1. JUDGMENTS: Declaratory Judgment Act: Action Treated as in Equity. While the action is for a declaratory judgment, equitable relief is sought by both parties and the case will be treated as a suit in equity.

2. LANDLORD AND TENANT: Taxation: Lease Clause Construed: Lessee Required To Pay Lessor's Income Tax. The lease clause requiring the lessee to pay certain taxes is construed to include the lessor's personal income tax upon income represented by the lease rentals.

3. LANDLORD AND TENANT: Contracts: Lease Clause Construed By Parties. The tax clause in the lease was construed by the parties for a number of years as requiring the lessee to pay the lessor's income tax based upon the lease rentals.

4. CORPORATIONS: Landlord and Tenant: Authority of President To Construe Lease. The president of the lessee corporation had authority to deal with the lessor in construing the lease.

5. WITNESSES: Evidence: Death Statute: Defendant's Agent Not Disqualified By Death of Plaintiff's Agent. Defendant's witness Adams was not disqualified by the death of plaintiff's agent Ganz from testifying as to conversations between Adams and Ganz. [Carroll v. United Rys. Co., 157 Mo. App. 247, is overruled.]

6. LANDLORD AND TENANT: Contracts: Lease Clause Ambiguous: Construction of Parties Adopted. There having been differing judicial interpretations of the disputed tax clause of the lease, it should be considered as ambiguous and is construed as the parties have construed it.

7. LANDLORD AND TENANT: Breach of Ambiguous Covenant: No Forfeiture of Lease. The lease should not be forfeited because of the breach of an ambiguous covenant.

8. LANDLORD AND TENANT: Agreed Basis For Tax Clause Not Applicable To Future Years. The agreed compromise basis for computing the lessor's income tax to be paid by the lessee does not apply to succeeding years after the compromise basis was rejected.

9. LANDLORD AND TENANT: Taxation: Lessee's Covenant To Pay Lessor's Income Tax: Asserted Overpayments By Lessor No Defense: Right To Contest Future Assessments. The lessee does not have the right to raise the issue that the lessor has paid to the federal and state governments income taxes it was not required to pay. But provision should be made to permit the lessee to contest the future tax liability of the lessor.

10. LANDLORD AND TENANT: Taxation: Covenant To Pay Lessor's Income Tax: Deductions Approved. The allowances, credits and other items of deduction allowed by the trial court in determining the lessee's liability for the lessor's income tax are approved.

11. LANDLORD AND TENANT: Taxation: Covenant To Pay Lessor's Income Tax: Taxes Accrued Since Trial: Payment Properly Required To Avoid Forfeiture. In denying forfeiture of the lease for the failure of the lessee to comply with the covenant requiring the lessee to pay the lessor's income tax, the court had the right to require payment of taxes accrued since the trial as the price of his decree denying forfeiture.

12. COURTS: Actions: Prior Jurisdiction of Another Division of Circuit Court: Second Action Properly Dismissed. When another division of the same circuit court had already acquired jurisdiction of the first case, a second case in a second division was properly dismissed.

On Motion For Rehearing.

13. LANDLORD AND TENANT: Taxation: Covenant To Pay Lessor's Income Tax Construed. The covenant to pay the lessor's income tax is construed as applying to income of the lessor derived from the rentals.

14. LANDLORD AND TENANT: Contracts: Covenant Ambiguous: Construction of Parties Adopted. By reason of divergent judicial views the covenant is treated as ambiguous and the construction followed by the parties for eleven years is adopted.

15. LANDLORD AND TENANT: Contracts: Rule of Construction By Parties Not Subservient To Rule of Construction In Favor of Lessee. The principle of practical construction arising from the conduct of the parties is not subservient to the rule that an ambiguous lease is to be construed most strongly in favor of the lessee.

16. LANDLORD AND TENANT: Contracts: Construction By Parties Not a Modification. Construction by the parties of the true meaning of the lease is not a modification in violation of a provision of the lease prohibiting any modification not in writing and duly acknowledged.

Appeal from Jackson Circuit Court. — Hon. Ray G. Cowan, Judge.

AFFIRMED AND REMANDED.

James P. Aylward, George V. Aylward, Terrence M. O'Brien and Ralph M. Russell for Lennox Land Company.

(1) Validity not involved. Elliott v. Winn, 305 Mo. 105, 264 S.W. 391; United States v. Boston Maine R. Co., 279 U.S. 732, 49 Sup. Ct. 505, 73 L.Ed. 929; Wallin Coal Corp. v. Commissioner of Internal Revenue, 71 F.2d 521; North Pa. R. Co. v. Philadelphia R. Ry. Co., 249 Pa. 326, 95 A. 100; Boston P.R. Corp. v. Old Colony R. Corp., 269 Mass. 190, 169 N.E. 157. (2) In construing a sub-lease, the thing to determine is the intent of the parties. In doing that, four factors are to be considered, First, the circumstances existing at the time it was made; Second, the purpose; Third, the language used and Fourth, the conduct of the parties under it. Fulkerson v. Great Lakes Pipe Line Co., 335 Mo. 1058, 75 S.W.2d 844; Strauss v. J.C. Nichols Land Co., 327 Mo. 205, 37 S.W.2d 505; Swinney v. Continental Building Co., 340 Mo. 611, 628, 102 S.W.2d 111; Thomas v. Utilities Bldg. Corp., 335 Mo. 900, 906, 74 S.W.2d 578; Mathews v. Modern Woodmen, 236 Mo. 326, 139 S.W. 151; K.C. Steel Co. v. Utilities Bldg. Corp., 339 Mo. 68, 72, 95 S.W.2d 1176; Hubbard v. Hubbard, 264 S.W. 422; State v. Christopher, 318 Mo. 225, 2 S.W.2d 621. (3) Existing circumstances show an intent that plaintiff should pay the tax upon defendant's income derived from the rental. Sec. 49, Chap. 45, Revenue Act of 1861; Sec. 90, Chap. CXIX, Revenue Act of 1862; Sec. 117, Chap. 172, Revenue Act of 1864; Sec. 13, Chap. 169, 1867 Amendment to 1864 Revenue Act; Sec. 7, Chap. 255, Revenue Act of 1870; Sec. 27, Chap. 349, Revenue Act of 1894; Sub. B, Sec. II, Chap. 16, Revenue Act of 1913; Sec. 2(a), Chap. 463, Revenue Act of 1916; Sub. (a), Sec. 213, Revenue Act of 1918; Laws, 1917, p. 525, sec. 2; Hubbard v. Hubbard, 264 S.W. 422; Fulkerson v. Great Lakes Pipe Line Co., 335 Mo. 1058, 75 S.W.2d 844; Kansas City Steel Co. v. Utilities Bldg. Corp., 339 Mo. 68, 95 S.W.2d 1176; Timmonds v. Kennish, 244 Mo. 318, 149 S.W. 652; State ex rel. Buerck v. Calhoun, 330 Mo. 1171, 52 S.W.2d 742; State ex inf. Atty. Gen. v. Meeker, 317 Mo. 719, 296 S.W. 411; State v. Messino, 325 Mo. 743, 30 S.W.2d 750; State v. Shenck, 238 Mo. 429, 142 S.W. 263; Handlin v. Morgan County, 57 Mo. 114. (4) Purpose. Kansas City Steel Co. v. Utilities Bldg. Corp., 339 Mo. 68, 95 S.W.2d 1176. (5) The language used clearly shows that the parties intended the lessee to pay the tax upon the lessor's income derived from the rental. United States v. Warren R. Co., 39 F. Supp. 135; Sec. 116, Chap. 172, Revenue Act of 1864; Sec. 113, Chap. 169, 1867 Amendment to 1864 Revenue Act; Sec. 7, Chap. 255, Revenue Act of 1870; Sec. 27, Chap. 349, Revenue Act of 1894; Sub. B, Sec. II, Revenue Act of 1913; Sec. 2, Revenue Act of 1916; Sub. (a), Sec. 213, Revenue Act of 1918; Sec. 213(a), Revenue Act of 1921; Sub. (a), Sec. 213, Revenue Act of 1924; Sub. (a), Sec. 213, Revenue Act of 1926; Sub. (a), Sec. 22, Revenue Act of 1928; Sub. (a), Sec. 22, Revenue Act of 1932; Sub. (a), Sec. 22, Revenue Act of 1934; Sub. (a), Sec. 22, Revenue Act of 1936; Sub. (a), Sec. 22, Revenue Act of 1938; Sub. (a), Sec. 22, Revenue Act of 1939; Laws 1917, p. 525, sec. 2; Laws 1927, p. 477, sec. 13108; Laws 1929, p. 429, sec. 13108; Laws 1931, p. 363, sec. 10117; Stony Brook R. Corp. v. Boston M.R. Corp., 260 Mass. 379, 157 N.E. 607, 53 A.L.R. 700; Dennehy v. Barnheisel, 218 Ill. App. 91; Young v. Illinois Athletic Clubs, 310 Ill. 75, 141 N.E. 369, 30 A.L.R. 985; Whitlock v. Boston M.R.R. Co., 29 F.2d 351; E.D. Stair Corp. v. Taylor, 39 F.2d 788; Sec. 670, Title 11, U.S.C.A.; Dean v. Lee, 52 S.W.2d 426; Missouri Athletic Assn. v. Delk Inv. Co., 20 S.W.2d 51; LaClede Gas Light Co. v. St. Louis Union Trust Co., 12 S.W.2d 432; Elliott v. Winn, 264 S.W. 391; Riesenberg v. Primary Realty Co., 214 Mo. App. 43, 258 S.W. 23; McFarland v. Gillioz, 327 Mo. 690, 37 S.W.2d 911; Swinney v. Continental Bldg. Co., 340 Mo. 611, 102 S.W.2d 111; Mathews v. Modern Woodmen, 236 Mo. 326, 139 S.W. 151; Bratz v. Maring, 116 Conn. 186, 164 A. 388; Terminal Inv. Co. v. Pope Estate Co., 122 Cal.App. 281, 10 P.2d 139; In re Russell's Estate, 127 Misc. 59, 215 N.Y.S. 244; Kimball v. Madison, 286 Mass. 277, 190 N.E. 506. (6) The conduct of the parties shows an intent that plaintiff should pay the tax upon defendant's income derived from the rental. State v. Christopher, 318 Mo. 225, 2 S.W.2d 621; District of Columbia v. Gallaher, 124 U.S. 506, 510, 31 L.Ed. 526; Natl. Refining Co. v. Cox, 227 Mo. App. 778, 57 S.W.2d 778; Insurance Co. v. Dutcher, 95 U.S. 262. (7) The conduct of the parties shows an intent that plaintiff should pay the tax upon defendant's income derived from the rental. State v. Christopher, 318 Mo. 225, 2 S.W.2d 621; District of Columbia v. Gallaher, 124 U.S. 506, 31 L.Ed. 526; Natl. Refining Co. v. Cox, 227 Mo. App. 778, 57 S.W.2d 778; Insurance Co. v. Dutcher, 95 U.S. 262; United States v. American Trucking Assns., 310 U.S. 534. (8) If the Sub-lease is ambiguous, the conduct of the parties is conclusive. State ex rel. Union Indemnity Co. v. Shain, 334 Mo. 153, 66 S.W.2d 102; McFarland v. Gillioz, 327 Mo. 690, 37 S.W.2d 911; Thomas v. Utilities Bldg. Corp., 335 Mo. 900, 74 S.W.2d 578. (9) The conduct of the parties shows an intent that plaintiff should pay the tax upon defendant's income derived from the rental. This conduct is shown by admissions of the plaintiff, plaintiff's records, plaintiff's witnesses, and documentary proof as well as the testimony of defendant's witness Adams. (10) Adams' testimony competent. Sec. 1887, R.S. 1939; Wagner v. Binder, 187 S.W. 1128; Signaigo v. Signaigo, 205 S.W. 23; Rauch v. Metz, 212 S.W. 357; O'Neill v. Stratton, 64 F.2d 911; Maryland Cas. Co. v. Cook-O'Brien Const. Co., 69 F.2d 462; Allen v. Jessup, 192 S.W. 720; Orthwein v. Nolker, 290 Mo. 284, 234 S.W. 787; Darby v. Northwestern Mut. Life Ins. Co., 293 Mo. 1, 239 S.W. 68, 21 A.L.R. 920; Curtis v. Alexander, 257 S.W. 432; Allen Estate Assn. v. Boeke Son, 300 Mo. 575, 254 S.W. 858; Freeman v. Berberich, 332 Mo. 831, 60 S.W.2d 393; Bernblum v. Travelers Ins. Co., 340 Mo. 1217, 105 S.W.2d 941; John Greer Real Estate Co. v. Building Co., 196 Mo. 358, 93 S.W. 1111; Carroll v. United Rys. Co., 157 Mo. App. 247, 137 S.W. 303; Banking House v. Rood, 132 Mo. 256, 33 S.W. 816; In re Farmers Merchants Bank of Lynn-Leismeyer v. Moberly, 119 S.W.2d 1012; Williams v. Edwards, 94 Mo. 447, 7 S.W. 429; Lead Zinc Co. v. Lead Co., 251 Mo. 721, 158 S.W. 369; Norvell v. Cooper, 155 Mo. App. 445, 134 S.W. 1095; People's Bank of Queen City v. Aetna Cas. Surety Co., 225 Mo. App. 1113, 1126, 40 S.W.2d 535; Lampe v. Franklin American Trust Co., 339 Mo. 361, 96 S.W.2d 710; Markowitz v. Markowitz, 290 S.W. 119; Edwards v. Latimer, 183 Mo. 610; In re Trautman's Estate, 300 Mo. 314; Tarlton v. Johnson, 138 S.W.2d 49. (11) The agreements of 1926, 1927 and 1928 are valid and should be given effect. Richards v. Earls, 345 Mo. 260, 133 S.W.2d 381; Metropolitan Properties Co. v. Rideout, 346 Mo. 787, 142 S.W.2d 1055; Jeck v. O'Meara, 343 Mo. 559, 122 S.W.2d 897; Lampson v. New Cole County Bldg. Loan Assn., 341 Mo. 168, 106 S.W.2d 911; Jones v. Jones, 333 Mo. 478, 63 S.W.2d 146; Sec. 3354, R.S. 1939; Smith v. Wilson, 160 Mo. 657, 61 S.W. 597; Mastin v. Grimes, 88 Mo. 478; Aurora Water Co. v. Aurora, 129 Mo. 540, 31 S.W. 946; Blue Valley Creamery Co. v. Consolidated Products Co., 81 F.2d 182; Logan v. Waddle, 315 Mo. 980, 287 S.W. 624; Moore v. Mountcastle, 61 Mo. 424; Truskett v. Rice Brothers, 180 S.W. 1048; Carman v. Harrah, 170 S.W. 388; United Securities Co. v. Tilley, 177 Mo. App. 113, 163 S.W. 281; Linton v. Williams, 25 Ga. 291; Duvall v. Duncan, 331 Mo. 1129, 111 S.W.2d 89; Mullanphy v. Riley, 10 Mo. 489; Rinehart v. Bills, 82 Mo. 534; Clough v. Holden, 115 Mo. 336; Wood v. K.C. Home Tel. Co., 223 Mo. 537, 123 S.W. 6; School Dist. v. Matherly, 90 Mo. App. 403; Nelson v. Diffenderffer, 178 Mo. App. 48, 163 S.W. 271; Osborne v. Fridrich, 134 Mo. App. 449; Sheppard v. Travelers' Protective Assn., 233 Mo. App. 602, 124 S.W. 528; Day v. Mechanics' Traders' Ins. Co., 88 Mo. 325; Teer v. Fuller, 30 F.2d 30; Polk v. Western Assur. Co., 114 Mo. App. 514, 90 S.W. 397; Bartlett v. Stanchfield, 148 Mass. 394, 19 N.E. 549; House Wrecking Co. v. Sonken, 152 Mo. App. 458, 133 S.W. 355; Prendiville v. Prendiville, 284 Mo. 116, 223 S.W. 596; Sparks v. Dispatch Transit Co., 104 Mo. 531, 15 S.W. 417; Jones v. Williams, 139 Mo. 1, 39 S.W. 486; Kaufman v. Baden Ice Cream Manufacturers, 7 S.W.2d 298; Tuttle Pike v. Const. Co., 136 Mo. App. 309; Concrete Steel Const. Co. v. Natl. Asphalt Ref. Co., 2 S.W.2d 157; Bacon Piano Co. v. Wilson, 62 S.W.2d 774; Hearne v. Chillicothe Brunswick R. Co., 53 Mo. 324; Chamberlain v. Mammoth Min. Co., 20 Mo. 90; Buffalo Trust Co. v. Producers' Exch., 23 S.W.2d 644; Tyler Estate v. Hoffman, 146 Mo. App. 510, 124 S.W. 535; Donham v. Hahn, 127 Mo. 439, 30 S.W. 134; Sinclair Coal v. Mining Co., 207 S.W. 266; First Natl. Bank v. Coal Co., 86 Mo. 125; Maplewood v. Johnson, 273 S.W. 237; Murphy v. Milby, 344 Mo. 1084; Katz v. Dreyfoos, 26 S.W.2d 1001; St. Louis Gun Co. v. Wannamaker, 115 Mo. App. 270; Flournoy v. Brick Const. Co., 159 Mo. App. 376; Patterson v. Prudential Ins. Co., 23 S.W.2d 198; Thimmig v. General Talking Pictures Corp., 85 S.W.2d 208; Fayles v. Natl. Ins. Co., 49 Mo. 380; Moore v. Gaus Sons Mfg. Co., 113 Mo. 98, 20 S.W. 975; Koewing v. Greene County B. L. Assn., 327 Mo. 680, 38 S.W.2d 40; Madden v. Paroney Realty Co., 75 Mo. App. 358; Lungstrass v. German Ins. Co., 57 Mo. 107; Fink v. Gregg Realty Co., 296 S.W. 838; Rosenbaum v. Gilliam, 101 Mo. App. 126, 74 S.W. 507; Bacon v. K.C. St. Joseph Ry. Co., 91 Mo. 152; Common Sense Min. Co. v. Taylor, 247 Mo. 1, 152 S.W. 5; Campbell v. Pope, 96 Mo. 468; First Natl. Bank v. Fricke, 75 Mo. 178; Pathe Exch. v. McElroy, 243 S.W. 430; Cut Rate Woolen Co. v. U.S. Tailoring Co., 267 S.W. 969; Donham v. Hahn, 127 Mo. 439, 30 S.W. 134; Washington Savs. Bank v. Butchers Drovers Bank, 107 Mo. 133, 17 S.W. 644; Green v. Mo. Pac. R. Co., 82 Mo. 653; Parsons v. Guaranty Inv. Co., 64 Mo. App. 32; Chouteau v. Allen, 70 Mo. 290; Southgate v. A. P. Ry. Co., 61 Mo. 89; Kiley v. Forsee, 57 Mo. 390; Williams v. Morris, 95 U.S. 444, 24 L.Ed. 360; Sanders v. Chartrand, 158 Mo. 352; Law Reporting Co. v. Grain Co., 135 Mo. App. 10, 115 S.W. 475; Napoleon Hill Cotton Co. v. Oetter Grocery Co., 222 S.W. 876; State ex information McKittrick v. Gate City Optical Co., 339 Mo. 427, 97 S.W.2d 89; King v. Phoenix Ins. Co., 195 Mo. 290, 92 S.W. 892; Schlitz Brewing Co. v. Mo. Poultry Game Co., 287 Mo. 400, 229 S.W. 813; Cass County v. Mercantile Town Mut. Ins. Co., 188 Mo. 1, 86 S.W. 837; Marshall v. Knights of Maccabees, 270 S.W. 418. (12) Estoppel was shown. McFarland v. McFarland, 278 Mo. 1, 211 S.W. 23; Johnson v. Stebbins-Thompson Realty Co., 177 Mo. 581, 76 S.W. 1021. (13) The five-year Statute of Limitations, Sec. 862, R.S. 1929, now Sec. 1014, R.S. 1939, applies. Herweck v. Rhodes, 327 Mo. 29, 34 S.W.2d 32; Stark Bros. v. Gooding, 175 Mo. App. 353, 162 S.W. 333; Ludwig v. Scott, 65 S.W.2d 1034; Shultz v. Manufacturers Traders Trust Co., 40 F. Supp. 675. (14) Laches applies. Kellogg v. Moore, 271 Mo. 189, 196 S.W. 15. (15) Waiver applies. Springfield Gas Electric Co. v. Southern Surety Co., 250 S.W. 78; Poe v. Illinois Central R. Co., 339 Mo. 1019, 99 S.W.2d 72. (16) Plaintiff's contention that it is not liable because defendant does not own the beneficial title but is a mere "conduit," and so not liable for Federal and State income taxes, cannot be sustained. Plaintiff improperly attempted to raise this issue in its reply. Mathieson v. Railroad, 219 Mo. 552; Smissman v. Wells, 213 Mo. App. 482; Baker v. Lamar, 140 S.W.2d 34; Newham v. Kenton, 79 Mo. l.c. 384; Goodman v. Crowley, 161 Mo. l.c. 664; Neal v. Twelfth Grand Avenue Bldg., 228 Mo. App. 541. (17) The agreements of 1926, 1927 and 1928 fixing the amount of income against which defendant's income taxes should be calculated for reimbursement by plaintiff eliminate any discussion about the amount or extent of defendant's income. (18) By the lease plaintiff agreed to pay the amounts "assessed." Seested v. Dickey, 318 Mo. 192, 300 S.W. 1088; Laughlin v. Wells, 314 Mo. 474, 283 S.W. 990; Stagg v. Eureka Tanning Currying Co., 56 Mo. 317; Sec. 10135, R.S. 1929. (19) Plaintiff cannot recover the sums already paid. Patton v. Shelton, 328 Mo. 631, 40 S.W.2d 706. (20) Plaintiff's claim for a deduction for amortization cannot be sustained. Plaintiff improperly attempted to raise this issue in its reply. Defendant admittedly computed its returns honestly and in good faith. The decision of the Board of Tax Appeals is binding. McFarland v. McFarland, 278 Mo. 1, 211 S.W. 23; Seested v. Dickey, 318 Mo. 192, 300 S.W. 1088; Tait v. West Maryland Ry. Co., 289 U.S. 620, 53 Sup. Ct. Rep. 706, 77 L.Ed. 1405; Continental Pet. Co. v. United States, 87 F.2d 91; Kelley v. United States, 90 F.2d 73; Buchanan County v. Kirtley, 42 Mo. 534; Gathright v. Callaway County, 10 Mo. 663; Steckdaub v. Wilhite, 211 S.W. 915; Helvering v. Rankin, 295 U.S. 123, 55 S.Ct. 732, 79 L.Ed. 1343; Brown v. Commissioner, 94 F.2d 101; Great Northern Ry. Co. v. Commissioner, 10 B.T.A. 1347; Buchanan County v. Kirtley, 42 Mo. 534; Gathright v. Callaway County, 10 Mo. 663; Steckdaub v. Wilhite, 211 S.W. 915; Patton v. Shelton, 328 Mo. 631, 40 S.W.2d 706. (21) Forfeiture should be decreed. (22) The court had no jurisdiction to grant the temporary restraining order in cause number 454086 below without notice to defendant and without a hearing. Tuttle v. Blow, 176 Mo. 158, 75 S.W. 617; State ex rel. McMillan v. Woodside, 254 Mo. 580, 163 S.W. 845; State ex rel. Kansas City Exchange Co. v. Harris, 229 Mo. App. 721, 81 S.W.2d 632. (23) The payments already made involved neither fraud nor mutual mistake of fact. Allgood v. Tarkio Elec. Water Co., 222 Mo. App. 964, 6 S.W.2d 51; Tappee v. Pohlmann, 79 S.W.2d 485; Poe v. Illinois Cent. R. Co., 339 Mo. 1025, 99 S.W.2d 82; Vail v. Midland Life Ins. Co., 108 S.W.2d 147; Couch v. Kansas City, 127 Mo. 436, 30 S.W. 117; Norton v. Highleyman, 88 Mo. 621; St. Louis v. Priest, 88 Mo. 612; Price v. Estill, 87 Mo. 378; Mutual Service Inst. v. Enslin, 46 Mo. 200; Breit v. Bowland, 231 Mo. App. 432, 100 S.W.2d 599; Kleiman v. Gieselman, 114 Mo. 437, 20 S.W. 796; McMurray v. St. Louis Oil Mfg. Co., 33 Mo. 377; Dailey v. Jessup, 72 Mo. 144; Beland v. Anheuser-Busch, 157 Mo. 593, 58 S.W. 1; Nordyke Marmon v. Kehlor, 155 Mo. 643, 56 S.W. 287; Clark v. Carter, 234 Mo. 90, 136 S.W. 310; Evans v. Evans, 196 Mo. 1, 93 S.W. 969. (24) The court had no jurisdiction to entertain the second suit (No. 459081), or to grant the temporary injunction order entered therein on May 12, 1938. Goddard v. Delaney, 181 Mo. 564, 80 S.W. 886; Updegraff v. Attorney General, 298 Mich. 48, 298 N.W. 400, 135 A.L.R. 933; State ex rel. Townsend v. Mueller, 330 Mo. 641, 51 S.W.2d 8; O'Malley v. Lamb, 342 Mo. 171, 113 S.W.2d 810; State ex rel. Banner Loan Co. v. Landwehr, 324 Mo. 1142, 27 S.W.2d 25; Peer v. Ashauer, 102 S.W.2d 764; Tuttle v. Blow, 176 Mo. 158, 75 S.W. 617; State ex rel. McMillan v. Woodside, 254 Mo. 580, 163 S.W. 845; State ex rel. Kansas City Exchange Co. v. Harris, 229 Mo. App. 721, 81 S.W.2d 632. (25) No point about the Krakauer testimony is here for review. (26) The court's ruling regarding Krakauer's testimony as proper. 70 C.J. 87, sec. 112. (27) The court erred in refusing to declare that the sublease in question was cancelled and forfeited. Where, as here, the parties under no disabilities contracted for a forfeiture upon the happening of certain conditions and those conditions occurred, the forfeiture cannot be avoided unless the party seeking it is guilty of some fraud or improper practice and no fraud or improper practice on the part of the defendant has been shown here. Johnson v. Feskens, 146 Or. 657, 31 P.2d 667, 107 A.L.R. 340. (28) Forfeiture cannot be avoided if the failure to pay rent when due was willful. Bonfils v. Ledoux, 266 F. 507, 16 A.L.R. 430; Crawford v. Texas Improvement Co., 196 S.W. 195; Creamery Dairy Co. v. Electric Park Co., 138 S.W. 1106; Randolph v. Mitchell, 51 S.W. 297. (29) Plaintiff's failure to pay was vexatious and willful. Crawford v. Texas Imp. Co., 196 S.W. 195; Talbert v. General Exchange Ins. Co., 75 S.W.2d 424; Bigalke v. Mutual Life Ins. Co., 34 S.W.2d 1019; Gillespie v. Ins. Co., 168 Mo. App. 320, 153 S.W. 1079; Third Natl. Bank v. Yorkshire Ins. Co., 218 Mo. App. 660, 267 S.W. 445; O'Malley v. Lamb, 342 Mo. 171, 113 S.W.2d 810; State ex inf. v. Equitable Loan Inv. Co., 142 Mo. 325, 41 S.W. 916. (30) Plaintiff's various tenders being conditional were ineffectual and invalid. Harbaugh v. Ford Roofing Products Co., 281 S.W. 686; Defeo v. Goodwin, 221 Mo. App. 789, 287 S.W. 1075; Ruppel v. Mo. Guaranty Savings Building Assn., 158 Mo. 613, 59 S.W. 1000; Henderson v. Cass County, 107 Mo. 50, 18 S.W. 992; Bridges v. Smith, 213 S.W. 858; Saussenthaler v. Federal Union Surety Co., 197 Mo. App. 112, 193 S.W. 286. (31) Deposits with the clerk without a valid order of court are wholly ineffectual. Such a deposit merely makes the clerk the agent of the depositing party. The other party is not required to take any notice of the deposit nor does it affect his rights. Commercial Inv. Co. v. Peck, 73 N.W. 452; Keith v. Smith, 1 Swan, 92; Levan v. Sternfeld, 55 N.J.L. 41, 25 A. 854; Davidson v. Lamprey, 16 Minn. 445; Hammer v. Coffman, 39 Ill. 87; Union Bank Trust Co. v. Los Angeles County, 38 P.2d 442; Wisconsin Livestock Assn. v. Bowerman, 233 N.W. 639; Colber v. Scarborough, 73 Cal.App. 455, 238 P. 1110; Kimball v. Richardson-Kimball Co., 111 Cal. 386, 43 P. 1111; Gilman v. Williams, 7 Wis. 329; Rotsky v. Kelsay Lbr. Co., 12 S.W.2d 973; Texas Pacific Coal Oil Co. v. Ames, 284 S.W. 315; Phipps v. Watson, 108 Fla. 547, 147 So. 234. (32) The court erred in allowing the plaintiff any deductions because the sublease does not allow plaintiff any deductions. The court cannot interpolate a provision allowing plaintiff deductions into the sublease. Siegel v. First Natl. Co., 338 Mo. 417, 90 S.W.2d 776, 105 A.L.R. 181; Sandy Hites Co. v. State Highway Comm., 149 S.W.2d 828; Waugh v. Williams, 342 Mo. 903, 119 S.W.2d 223; Danzer v. Moerschel, 214 S.W. 849; Drake v. Crane, 127 Mo. 85. (33) The court erred in failing to hold that under the 1928 agreement of the parties, the amount which plaintiff should pay defendant as additional rental should be calculated by applying the federal and state income taxes against a flat net income of $29,882.50 for all subsequent years. The undisputed testimony, the admittedly genuine documentary proof and the conduct of the parties in performance conclusively established that, in 1928, the parties agreed that the amount which plaintiff should pay defendant as additional rental should be calculated by applying the Federal and State income tax rates against a flat net income of $29,876.10 for 1927 and against a flat net Income of $29,882.50 for all subsequent years. (34) Where, as here, the undisputed testimony, the admittedly genuine documentary proof and the conduct of the parties in performance conclusively established the contract, that agreement should have been found and enforced by the court. Halstead v. Mustion, 166 Mo. 488, 66 S.W. 258; Ray County Savs. Bank v. Houston, 224 Mo. 42, 123 S.W. 47.

Arthur Miller, Alton Gumbiner, Roscoe C. Van Valkenburgh and John Ryder for J.E. Blank, Inc.; Miller, Gumbiner, Sheffrey Van Valkenburgh of counsel.

(1) The language and wording of Clause VI of the written sixty-nine year sublease here in controversy is conceded by both appellant and appellee to be clear and unambiguous. It was found by the trial court to be clear and unambiguous. It imposes no obligation upon the appellant to pay the personal federal and state income tax assessed against the statutory net income of appellee. Elliott v. Winn, 305 Mo. 105, 264 S.W. 391; Laclede Gas Light Co. v. St. Louis Union Trust Co., 12 S.W.2d 432, 321 Mo. 782; Missouri Athletic Assn. v. Delk Inv. Co., 323 Mo. 765, 20 S.W.2d 51; Benz v. Powell, 93 S.W.2d 877, 338 Mo. 1032; Dean v. Lee, 227 Mo. App. 206, 52 S.W.2d 426; Riesenberg v. Primary Realty Co., 214 Mo. App. 43, 258 S.W. 23. (2) Where the language, wording and terms of a written lease are clear and unambiguous, reference may not be had to any evidence outside the written lease itself as to the meaning of its unambiguous terms, and in determining the obligations of the parties, evidence of the conduct of the parties may not be considered in determining the meaning of the unambiguous terms. Where the meaning is in issue, the unambiguous writing speaks for itself. Elliott v. Winn, 264 S.W. 393; Brainard v. N.Y. Central R. Co., 151 N.E. 152, 242 N.Y. 125; Young v. Illinois Athletic Club, 141 N.E. 369, 310 Ill. 75; Illinois Central R. Co. v. Indianapolis R. Co., 6 F.2d 830; Wetmore v. Crouch, 51 S.W. 738, 150 Mo. 671; Holland Land Loan Co. v. Holland, 298 S.W. 39, 317 Mo. 951; Illinois Fuel v. Mobile O.R. Co., 8 S.W.2d 834, 319 Mo. 899; Anchor Serum Co. v. Rea, 32 S.W.2d 587, 326 Mo. 811; Meissner v. Standard Railroad Equipment Co., 109 S.W. 730, 211 Mo. 112; Grossenbacher v. Daly, 287 S.W. 781; Webb Kunze Const. Co. v. Gilsonite, 220 S.W. 857, 281 Mo. 629; 13 C.J. 549, sec. 517; C.D. Smith Drug Co. v. Saunders, 70 Mo. App. 221; Northwestern Railroad v. Hastings, 69 L.J. Ch. 516, 82 L.T. 429; 4 Page on Contracts, pp. 3515, 3517, 3521, 3581; Cincinnati v. Coke Co., 41 N.E. 239; Hartman v. C., B. Q.R. Co., 182 S.W. 148, 192 Mo. App. 271; Seigle v. First National Co., 90 S.W.2d 776; Martin v. Travelers Ins. Co., 276 S.W. 380; McClintock v. Skelly Oil, 114 S.W.2d 181; Rickey v. New York Life Ins., 71 S.W.2d 88; State ex rel. Natl. Life Ins. Co. v. Allen, 256 S.W. 737, 301 Mo. 631; Sun Printing Publishing Assn. v. Remington Paper Power Co., 139 N.E. 470, 235 N.Y. 338; 12 Am. Jur. 749. (3) Even if evidence dehors the unambiguous written lease were admissible to determine or to construe the meaning of its admittedly unambiguous terms (which admissibility appellant denies), the evidence produced by appellee is insufficient to support its contention that appellant is obliged to pay appellee's personal federal and state income tax assessed upon its statutory net income. In re Farmers Merchants Bank of Linn-Leisemeyer v. Moberly, 119 S.W.2d 1012; Charles Green Real Estate Co. v. Building Co., 93 S.W. 1111, 196 Mo. l.c. 370; Carroll v. United Railroads, 157 Mo. App. 247, 137 S.W. 303; Bernblum v. Traveler's Ins. Co., 105 S.W.2d 941, 340 Mo. 1217; Williams v. Edwards, 94 Mo. 447, 7 S.W. 429; Bank v. Payne, 20 S.W. 41, 111 Mo. 291; B.F. Goodrich Rubber Co. v. Bennett, 281 S.W. 75, 222 Mo. App. 510; Elsea v. Smith, 202 S.W. 1071, 273 Mo. 396; Elliott v. Winn, 305 Mo. 105, 264 S.W. 391; LaClede Gas Light Co. v. St. Louis Union Trust Co., 12 S.W.2d 432, 321 Mo. 782; Blue Valley Creamery Co. v. Consolidated Products Co., 81 F.2d 182; Kelly v. Thuey, 143 Mo. 422, 45 S.W. 300; Allen West Com. Co. v. Richter, 286 Mo. 691, 228 S.W. 827; Crane v. Berman, 297 S.W. 423; Reigart v. Manufacturers' Coal Coke Co., 217 Mo. 142, 117 S.W. 61; Warren v. A.B. Mayer Mfg. Co., 61 S.W. 644, 161 Mo. 12; R.S. 1939, sec. 3354; Miller v. Arnold, 51 S.W.2d 124; Pratt v. Schreiber, 249 S.W. 449; Roburt v. Holmes, 248 S.W. 646; Fuller v. Presnell, 233 S.W. 502; Hain v. Burton, 94 S.W. 589, 118 Mo. App. 578; Crane v. Berman, 297 S.W. 423; Koob v. Ousley, 240 S.W. 102; R.S. 1919, sec. 2169; Denison v. Hildt, 112 A.L.R. 490; Moore v. Mountcastle, 61 Mo. 424; 35 C.J. 1171, note 3 (b); Evers v. Shumaker, 57 Mo. App. 454; State ex rel. Hoyt v. Shain, 93 S.W.2d 992; McFarland v. Heim, 127 Mo. 327, 29 S.W. 1030; American Contracting Co. v. Norton, 253 S.W. 372; 14a C.J. 426, sec. 2276; 2 Fletcher, Cyclopedia of Corporations, sec. 614, p. 530; Donovan v. Schoenhoffen Brewing Co., 92 Mo. App. 341; Lindhorst v. St. Louis Protestant Orphan Asylum, 132 S.W. 666, 231 Mo. 379; People's Bank v. Bennett, 139 S.W. 219; Integrity Mining Milling Co. v. Moon, 109 S.W. 1057, 130 Mo. App. 627; Coleman v. Insurance Co., 201 S.W. 544, 273 Mo. 620; Jones v. Williams, 39 S.W. 486, 139 Mo. 1, 40 S.W. 353; Mariposa Commercial Mining Co. v. Peters, 8 P.2d 849; Ferguson Wheeler v. Venice Transportation Co., 79 Mo. App. 352; Hyde v. Larkin, 35 Mo. App. 365; Feld v. Roanoke Inv. Co., 123 Mo. 603, 27 S.W. 635; 2 Cook on Stock and Stockholders and Corporation Law, sec. 716; 1 Beach on Private Corporations, sec. 202; Riesenberg v. Primary Realty Co., supra; Mo. Athletic Assn. v. Delk Inv. Co., supra; Dean v. Lee, supra; Brinkerhoff Zinc Co. v. Boyd, 192 Mo. 597; 91 S.W. 523; 14a C.J., p. 416, sec. 2264, p. 420, sec. 2269; Freifeld v. M. Groh's Sons, 101 N.Y.S. 863, 116 App. Div. 409; Cassville Roller Mill Co. v. Aetna Ins. Co., 79 S.W. 720; Rankin v. Bates County Inv. Co., 238 Mo. 399, 141 S.W. 1118; Central Transp. Co. v. Pullman Car Co., 139 U.S. 24, 11 S.Ct. 478; Anglo-American Land, M. A. Co. v. Lombard, 132 Fed. l.c. 736; 3 Page on Contracts, p. 3414; Citizens Savs. Bank v. Hawkins, 71 F. 369; Miner's Ditch Co. v. Ellerbach, 37 Cal. 543, 99 Am. Dec. 300; Stacy v. Glen Ellyn Hotel Springs Co., 233 Ill. 546, 79 N.E. 133; 3 Page on Contracts, 3416; 3 Page on Contracts, p. 3421, sec. 1997; McCormick v. Bank, 165 U.S. 538; Boynton v. Gaslight Co., 124 Mass. 1977; Gause v. Commonwealth Trust Co., 196 N.Y. 134, 24 L.R.A. (N.S.) 967, 89 N.E. 476; Northside Ry. Co. v. Worthington, 53 Am. St. Ry. 778, 30 N.W. 1055; National Sales Co. v. Manciet, 83 Or. 34, L.R.A. 1917D, 485, 182 P. 1055; Pearce v. Madison and Indianapolis Railroad, 62 U.S. 441; Page on Contracts, 1919-1929 Supplement, p. 1358, sec. 2004; Providence Engineering Corp. v. Downey, 294 F. 641; Ellett-Kendall v. Western Stores Co., 132 Mo. App. 513, 112 S.W. 4; 14a C.J., p. 329, note 17; Nebraska Shirt Co. v. Horton, 93 S.W. 225. (4) Appellee cannot establish estoppel by asserting and claiming that third parties, not parties to this action, relied on the acts of appellant to the alleged damage or injury of such third parties, nor can appellee claim estoppel, laches or waiver. City of Hardin v. Cunningham, 285 Mo. 457, 226 S.W. 872; 21 C.J. 1180, sec. 183; Mo. Cattle Loan Co. v. Great Southern Life Ins. Co., 52 S.W.2d 1, 330 Mo. 988; Wilkinson v. Lieberman, 327 Mo. 420, 37 S.W.2d 533; State ex rel. v. Trimble, 303 Mo. 266, 259 S.W. 1052; 16 Cyc. 756, 757; Laughlin v. Wells, 283 S.W. 990, 314 Mo. 474; Western Maryland Ry. Co. v. Eastern Cement Gun Co., 231 F. 620. (5) This action is not barred by the Statute of Limitations or by alleged laches, nor has appellant waived its right to deny that its liability for the payment of appellee's Federal and State personal income tax levied upon its statutory net income. R.S. 1939, sec. 1012; Declaratory Judgment Act of the State of Missouri, Sections 1097a, 1097b and 1097c; Laws 1935, p. 218, secs. 1, 2 and 3; Hagan v. Lantry, 89 S.W.2d 522; Davies v. Keiser, 297 Mo. 1, 246 S.W. 897; Fairbanks Morse and Co. v. Baskett, 71 S.W. 1113, 98 Mo. App. 53; Miller v. Rosebud Bank, 116 S.W.2d 267. (6) The rents and profits arising from the subleasehold to which appellee holds title are not part of appellee's taxable income. The beneficial ownership of that sub-leasehold is not now and never was in appellee, Lenox Land Company, but is in the "members of the Lillis family." Any income arising therefrom is not taxable to appellee, Lenox Land Company, and has not been so taxable to it at any time since appellant became sublessee, for the reason that appellee was a mere conduit and dummy corporation and is utilized solely to hold bare legal title for the convenience of the Lillis family. Appellee paid nothing for the leasehold and has no beneficial interest therein. 112 West 59th Street Corp. v. Helvering, 68 F.2d 397; Central Life Society v. Commissioner, 51 F.2d 939; Thrift Realty Co. v. Commissioner, 29 B.T.A. 545; Bettendorf v. Commissioner, 49 F.2d 173; Central Life v. Commissioner, 51 F.2d 939; North Jersey Title Ins. Co. v. Commissioner, 84 F.2d 898; United States v. Jelinko, 23 F.2d 511; Moro Realty Holding Corp., 25 B.T.A. 1134; Grey Bull Corp., 27 B.T.A. 853; Shellabarger v. Commissioner, 28 F.2d 566; Stewart Forshay, 20 B.T.A. 537; Hallahan, 14 B.T.A. 584; Greenleaf Textile Corp., 26 B.T.A. 737; Blake v. Commissioner, 23 B.T.A. 554. (7) Appellant is entitled to recover from appellee all sums exacted by appellee from appellant under Clause VI of the sublease; the Statute of Limitations is no bar because the situation between appellant and appellee is that of a running account with last payment within time. Appellee stands in a fiduciary relation to appellant and where, in such relation, constructive legal fraud is present, the statute does not begin to run until the facts and the fraud are discovered. 1 Page on Contracts (1919-1929 Supplement), sec. 2001, p. 1356; People v. Friedman, 321 Ill. 572, 152 N.E. 523; Duddy-Robinson Co. v. Taylor, 137 Wn. 304, 242 P. 21; Philadelphia Loan Co. v. Towner, 13 Conn. 249; Vanatta v. State Bank, 9 Ohio St. 27; Cassville Roller Mill v. Aetna Ins. Co., 105 Mo. App. 146, 79 S.W. 720; 3 Page on Contracts, p. 3423, sec. 2000; 7 Fletcher, Cyclopedia Corporations, p. 710, sec. 3571; p. 714, secs. 3573, 3577, p. 721, sec. 3579; Equitable Trust Co. of New York v. Natl. Bank of Commerce in St. Louis, 221 F. 688; Newcastle Northern Railroad Co. v. Simpson, 23 F. 214; Moore v. Swanton Tanning Co., 60 Vt. 459, 15 A. 114; Selle v. Wrigley, 116 S.W.2d 217, 234 Mo. App. 1119; Patton v. Shelton, 40 S.W.2d 706, 328 Mo. 631; 26 C.J., p. 1152, sec. 68, p. 1154, footnote 97; Cahn v. Reid, 18 Mo. App. 115; 26 C.J. 1156; Morrow v. Franklin, 289 Mo. 549, 233 S.W. 224; Snider v. McAtee, 147 S.W. 136; Kirby v. Davis, 91 S.W.2d 215; Fleischer v. Berger Cohn Co., 96 S.W.2d 643; 48 C.J., sec. 312, pp. 759, 761, sec. 323, p. 765, sec. 326, p. 766, sec. 325, p. 765; Picotte v. Mills, 203 S.W. 825, 200 Mo. App. 127; Illinois Central Ry. Co. v. Indianapolis Union Railway Co., 6 F.2d 830; Home Coal Co. v. City of Macon, 262 S.W. 59, 216 Mo. App. 590; Bone v. Friday, 167 S.W. 599, 180 Mo. App. 577; "Restatement of the Law of Restitution, Quasi Contracts and Constructive Trusts," sec. 18, p. 82, sec. 20, p. 92, sec. 28, p. 123, sec. 160, p. 640, sec. 163, p. 661; 3 Bogert on Trusts, sec. 473, p. 1464; First Natl. Bank v. U.S.F. G. Co., 271 P. 57; Callaway Bank v. Ellis, 238 S.W. 844; Bank of Williston v. Alderman, 91 S.E. 296; Roberts v. Neale, 114 S.W. 1120, 134 Mo. App. 612; McAdoo v. Metropolitan Life, 110 S.W.2d 845; Gammon v. McDowell, 235 S.W. 461, 208 Mo. App. 616; Prewitt v. Prewitt, 188 Mo. 675, 87 S.W. 1000; Freeland v. Williamson, 220 Mo. 217, 119 S.W. 560; Graham v. Wilson, 153 S.W. 83; Johnson v. Smith, 27 Mo. 593; Burdette v. May, 100 Mo. 13, 12 S.W. 1056; Reed v. Painter, 145 Mo. 341, 46 S.W. 1089; McKee v. Downing, 224 Mo. 115, 124 S.W. 7. (8) If appellant is obligated under its contract to reimburse appellee for the latter's federal and state personal income taxes levied upon its statutory net income (which appellant denies), then certainly appellant is entitled to have those taxes correctly and properly computed in accordance with applicable law, and is entitled in such computation to give effect to all allowable deductions, exemptions and eliminations, and in no event should appellant be required to reimburse the appellee for a sum greater than that sufficient to make appellee whole. Foreman v. Hilton Co., Inc., 280 F. 608; Appeal of 719 Fifth Avenue, 5 B.T.A. 569; Columbia Casualty Co. v. Tibma, 63 F.2d 538; National Surety Co. v. Runge, 162 S.E. 867; Northern Welding Co. v. Gordon, 150 Minn. 12, 184 N.W. 39; 1 Story, Eq. Jur., 317; Selle v. Wrigley, 116 S.W.2d 217; Patton v. Shelton, 40 S.W.2d 706; 25 C.J. 1118-1120; 26 C.J., p. 1152, section 68, 26 C.J., p. 1154, footnote 97; Cahn v. Reed, 18 Mo. App. 115; 26 C.J. 1156; Morrow v. Franklin, 289 Mo. 549, 233 S.W. 224; Snider v. McAtee, 147 S.W. 136; Kirby v. Davis, 91 S.W.2d 215; Fleischer v. Berger Cohn Co., 96 S.W.2d 643; A.R.R. 676 at page 128 of Treasury Cumulative Bulletin, No. 5, July to December, 1921; Miller v. Commissioner, 10 B.T.A. 383; J. Alland Bro., Inc., v. United States, 28 F.2d 792; Saks Co. v. Commissioner of Internal Revenue, 20 B.T.A. 1151; Julia Stow Lovejoy v. Commissioner, 18 B.T.A. 1179; Olinger Corporation Case, 9 B.T.A. 170; Standard Federal Tax Service, 391 C.C.H., p. 2116, sec. 409.594; Home Trust Co. v. Commissioner of Internal Revenue, 65 F.2d 532; Griffiths v. Commissioner, 70 F.2d 946; Young v. Comm., 59 F.2d 691; Bonwit Teller Co. v. Commissioner, 53 F.2d 381; Appeal of Kaufman Straus Co., 2 B.T.A. 718, Acq. V-1, CB3; Appeal of Northern Hotel Co., 3 B.T.A. 1099, Acq. VI-2, CB5; Plumb, 7 B.T.A. 295, Acq. VII-1, CB25; Secor Hotel Co., 7 B.T.A. 158, Acq. VII-1, CB9, 28; Deshler Hotel Co., 17 B.T.A. 579; Accountant's Handbook (Saliers, Editor), pp. 334, 467; Commissioner of Internal Revenue v. Pittsburgh Union Stockyards, 46 F.2d 646; Roth Hotel Co., 1 B.T.A. 1111; Appeal of The Hotel De France Co., 1 B.T.A. 28; Appeal of Grosvenor Atterbury, 1 B.T.A. 169; Blue Valley Creamery Co. v. Consolidated Products Co., 81 F.2d 182; Illinois Pipe Line v. Commissioner, 37 B.T.A. 158; Commissioner v. Niagara Falls Brewing Co., 282 U.S. 648; Stewart v. Thomas, 45 Mo. 42; Nothstine v. Feldmann, 298 Mo. 365, 250 S.W. 589; City of Springfield v. Clement, 205 Mo. App. 114, 225 S.W. 120; 14 R.C.L. 61; 2 Freeman on Judgment (5th Ed.), sec. 445, l.c. 973, 974, 1045, sec. 485; Satterlee v. Bliss, 36 Cal. 489; Burkman v. Jamieson, 25 Wn. 606, 66 P. 48. (9) The opinion, decision and findings of fact of the United States Board of Tax Appeals in "Appeal of Lennox Land Company v. Commissioner of Internal Revenue" are not binding upon this appellant, who was not a party thereto and had no notice thereof, and appellant is entitled to litigate all of the questions anew with the appellee in connection with any valuations there purported to have been determined. As against this appellant, appellee cannot rely upon the board of tax appeals decision, and appellee is precluded by its conduct from seeking aid of an equity court to destroy plaintiff's rights. Foss v. Commissioner, 75 F.2d 326; Wright v. Logan, 25 S.W.2d 799; Foreman v. Hilton Co., Inc., 280 F. 608; Medicus v. Altman, 199 Mo. App. 466, 203 S.W. 637; Sinclair Refining Co. Case, 289 U.S. 689, 53 S.Ct. 736; Nachod v. Helvering, 74 F.2d 164; Illinois Pipe Line v. Commissioner, 37 B.T.A. 158; Commissioner v. Niagara Falls Brewing Co., 282 U.S. 648; Utah P. L. v. Pfost, 286 U.S. 165; Cohan v. Commissioner, 39 F.2d 540; Mt. Hope Cemetery Assn., 37 B.T.A. 671; Even Realty Co., 1 B.T.A. 355; Ithaca Trust Co. v. United States, 49 S.Ct. 291, 279 U.S. 151; Lewellyn v. Electric Reduction, 275 U.S. 243, 48 S.Ct. 63; Conrad Co. v. Commissioner, 50 F.2d 576; Foster v. Commissioner, 57 F.2d 516; Planters Operating Co. v. Commissioner, 55 F.2d 583; J.H. Gray, Jr., 2 B.T.A. l.c. 681. (10) This court should not declare appellant's rights in and to the sublease forfeited, nor should the court dissolve the temporary restraining order restraining the declaration of a forfeiture by appellee, nor should the court permit appellee to declare a forfeiture of said leasehold, but this court, sitting in equity, should permanently enjoin appellee from declaring a forfeiture of the sublease pursuant to appellee's notice of intention to declare such forfeiture. Haeffner v. A.P. Green Fire Brick Co., 76 S.W.2d 122; Corbonetti v. Elms, 261 S.W. 748; Board of Trade Office Building Co. v. Shannon Grain Co., 21 S.W.2d 913; 35 C.J. 1079, 1080; Jelly v. Lamar, 145 S.W. 799; Rains v. Moulder, 90 S.W.2d 81, 338 Mo. 275; 21 C.J., p. 100, sec. 76; p. 101, sec. 77; p. 102, p. 103, sec. 80. (11) The trial court had jurisdiction both of the subject matter and the person of the defendant in Cause 454086 below (37648 here), and had full power to consider and grant appellant's (plaintiff below) prayer for declaratory judgment and the additional relief sought by appellant in its pleadings. Ex parte Gounis, 263 S.W. 988, 304 Mo. 428; State ex rel. McMillan v. Woodside, 254 Mo. 580, 163 S.W. 845; State ex rel. K.C. Exchange Co. v. Harris, 229 Mo. App. 721, 81 S.W.2d 632; Wessel v. Lavander, 171 S.W. 331, 262 Mo. 421 (12) The undisputed evidence shows that appellant brought this action in good faith and was justified by the facts in so doing. The appellee's allegation that this proceeding was brought to vex and harass the appellee (defendant below), and that appellant intentionally and deliberately breached and defaulted under the terms of the said sublease, by paying the disputed sums into court without prejudice instead of paying them to appellee with prejudice to appellant's rights, are totally unsupported by the evidence. (13) The appellee's contention that appellant abandoned its right to and prayer for a declaratory judgment herein is unsupported by the facts, the pleadings, or the proof. (14) The payments made by appellant to appellee under Clause VI of the subleasehold were not voluntarily made or consented to by appellant for the reason that they were made under a mistaken assumption of fact that Lennox Land Company was the owner of the right to be indemnified by appellant against tax levied on appellee's income and on the further mutual mistake of fact that the type of tax described in Clause VI was "tax on net income," whereas Clause VI refers only to that type of income tax assessed directly against rents, and such payments were all made as a direct result of and in response to written formal demands of appellee upon appellant containing misrepresentations that the sums named in said demands were necessary to save appellee harmless from its liability against that certain type of income tax designated in Clause VI of said sublease, whereas under the evidence the appellee was subject to no such tax and paid no such tax. Dean v. Lee, 52 S.W.2d 426; Missouri Athletic Assn. v. Delk Inv. Co., 20 S.W.2d 51; Laclede Gas Light Co. v. St. Louis Union Trust Co., 12 S.W.2d 432, 321 Mo. 782; Elliott v. Winn, 264 S.W. 393; Riesenberg v. Primary Realty Co., 214 Mo. App. 43, 258 S.W. 23; 1 Page on the Law of Contracts, p. 391, sec. 261; Beland v. Brewing Assn., 157 Mo. 593, 58 S.W. 1; Nordyke Marmon Co. v. Kehlor, 155 Mo. 643, 56 S.W. 287; Clark v. Carter, 234 Mo. 90, 136 S.W. 310; Story, Equity Jurisprudence, sec. 134; Stahl v. Schwartz, 120 P. 856; 1 Page on Contracts, p. 448, sec. 290; Dickerson v. Thomas, 67 Miss. 777, 7 So. 503; Long v. Inhabitants of Athol, 196 Mass. 497, 17 L.R.A. (N.S.) 96, 82 N.E. 665; 1 Page on Contracts, p. 483, sec. 309; National Bank v. Rockefeller, 174 F. 22; 1 Page on Contracts, p. 484, sec. 309; Mills v. Collins, 67 Iowa 164, 25 N.W. 109; Hamlin v. Abell, 120 Mo. 188, 25 S.W. 516; Florida v. Morrison, 44 Mo. App. 529; Paretti v. Rebenack, 81 Mo. 494; 1 Page on Contracts, p. 497, sec. 315; Bank v. Hunt, 76 Mo. 439; Swofford v. Mills, 86 F. 556; Moline Plow Co. v. Carson, 72 F. 387; Alcott v. Bolton, 50 Neb. 779, 70 N.W. 366; 1 Page on Contracts, p. 510, sec. 322; Cottrill v. Krum, 100 Mo. 397, 13 S.W. 753, 18 Am. St. Rep. 549; 1 Page on Contracts, p. 513, sec. 323; p. 515, sec. 326, p. 517, sec. 326; Davis v. Forman, 229 Mo. 27, 129 S.W. 213; Hunt v. Davis, 98 Ark. 44, 135 S.W. 458; Van Horn v. Chambers, 89 Wn. 553, 154 P. 1084; Circle v. Potter, 83 Kan. 363, 111 P. 479; Gerner v. Moser, 58 Neb. 135, 78 N.W. 384; Zang v. Adams, 23 Colo. 408, 48 P. 509; 1 Page on Contracts, p. 524, secs. 328, 329; 1 Page on Contracts, p. 496, sec. 314; Hamlin v. Abell, 120 Mo. 188, 203, 25 S.W. 516; 1 Page on Contracts, p. 600, sec. 375; Sachleben v. Heintze, 117 Mo. 520, 24 S.W. 54; Beland v. Brewing Assn., 157 Mo. 593, 58 S.W. 1; Winter v. K.C. Cable Ry. Co., 160 Mo. 159, 61 947 S.W. 606; Milan Bank v. Richman, 235 Mo. 532, 139 S.W. 352; 1 Page on Contracts, p. 602, sec. 375; Burke v. Ry. Co., 83 Wis. 410, 53 N.W. 692; 1 Page on Contracts, p. 604, sec. 376, p. 494, sec. 314; Nauman v. Oberle, 90 Mo. 666, 3 S.W. 380; Ring v. Glass Co., 44 Mo. App. 111; 1 Page on Contracts, pp. 655, 656, sec. 394; Berry v. Ins. Co., 132 N.Y. 49, 28 Am. St. Rep. 548, 30 N.E. 254; Wilson v. Ott, 173 Pa. 253, 34 A. 23; Holland v. Story County, 195 Iowa 489, 192 N.W. 402; 1 Page on Contracts, p. 667, sec. 400; Clark v. Carter, 234 Mo. 90, 136 S.W. 310. (15) Appellee committed legal fraud and duress upon and against the appellant, for the reason that the testimony and evidence show that for many years prior to the institution of this action, the appellee, possessed of a superior knowledge of confidential facts concerning the type of "straw" title holding corporation which it was, and the fact that it was a mere channel and had no beneficial interest in said sublease, by reason of which it was nontaxable on the income therefrom, knowingly withheld said facts from appellant and insisted upon collecting sums from appellant in excess of its correct income tax and threatened to and did notify appellant it would declare a forfeiture of the lease unless appellant voluntarily acceded to appellee's wrongful demands to pay appellee (with prejudice to appellant's rights) such sums as additional rent as appellee demanded, notwithstanding the fact that at the very time of such threat, this cause of action was pending and the question as to whether or not such liability in fact existed, was and still is a question for final judicial determination. Mark A. Mayer, 36 B.T.A. 117; North Jersey Title Ins. Co. v. Comr., 84 F.2d 898; The Corling Holding Co. v. Comm., 41 B.T.A. 74; 112 West 59th St. Corp. v. Helvering, 68 F.2d 397; Stewart Forshay, 20 B.T.A. 537; Moro Realty Holding Corp., 25 B.T.A. 1135; Thrift Realty Co., 29 B.T.A. 545; Abrams Sons' Realty Corp., 40 B.T.A. 653; Central Life Society v. Com., 51 F.2d 939; Citizens Natl. Bank of Orange v. Waugh, 78 F.2d 325. (16) The refusal of the trial court to direct its clerk to pay over to appellee, without prejudice, the funds previously deposited with the court by the appellant, upon the petition of appellant, thus hindering appellant in avoiding the attempted forfeiture of the lease threatened by appellee, and the entry of the decree that the deposited funds were "ineffectual for any purpose," are abhorrent to equity and constitute an abuse of judicial discretion. (17) Where, as here, the matter before the court is a contractual arrangement through a lease, and the asserted obligation is that one of the parties is to pay the other contracting party sums of money at different intervals, ascertained according to determinable events or dates, no recovery can be had on sums becoming due subsequent to the filing of the petition. Lenox v. Vandalia Coal Co., 158 Mo. 473, 59 S.W. 242; Clothing Co. v. Steidman, 120 Mo. App. 519, 97 S.W. 220; Payne v. School District, 87 Mo. App. 415; Dwyer v. Dwyer, 26 Mo. App. 647; Childs v. K.C., St. J. C.B. R. Co., 117 Mo. 414, 23 S.W. 373; Ward v. Davidson, 89 Mo. 445, 1 S.W. 846; Jegglin v. Orr, 29 S.W.2d 721; Heard v. Ritchey, 112 Mo. 516, 20 S.W. 799. (18) The formulae for computation of governmental taxes assessed by law against appellee upon its statutory net income, as well as that for computation of the former tax against rents by way of tax on income, are fixed and set out by the respective statutes imposing such taxes, and the trial court exceeded its jurisdiction in prescribing a formula of its own to supersede either of them and at variance with such statutory formulae. (19) The decree and findings purport to determine questions of fact, which facts arose subsequent to the institution of the action and the trial thereof, and which pertain to years not before the court, and which facts are neither established by the evidence nor within the issues, and upon which appellant has had no day in court nor opportunity to present its evidence, and the decree directs forfeiture unless appellant complied with findings based on those facts. The decree is therefore violative of the Fifth and Fourteenth Amendments to the Constitution of the United States as depriving appellant of property without due process of law and of equal protection of the laws, and is also violative of Article Two, Section Thirty, of the Constitution of the State of Missouri as depriving appellant of property without due process of law, and is therefore null and void. State ex rel. Hurwitz v. North, 264 S.W. 678, 304 Mo. 607; Standard Oil v. Missouri, 32 S.Ct. 406, 224 U.S. 270; Riverside, etc., Mills v. Menefee, 35 S.Ct. 579, 237 U.S. 189; Stewart v. Palmer, 74 N.Y. 183; 12 C.J. 1238; 33 C.J. 1153, footnote 25. (20) Jurisdiction, in the sense of power to act, in the granting of a preliminary injunction, is not conditioned upon a showing of previous notice of the application therefor, given to the defendant. It is within the sound discretion of the court to grant a temporary injunction without notice. The allegation of "due notice" in the petition is harmless surplusage. Ex parte Gounis, 263 S.W. 988, 304 Mo. 428; State ex rel. McMillan v. Woodside, 254 Mo. 580, 163 S.W. 845; State ex rel. K.C. Exchange Co. v. Harris, 229 Mo. App. 721, 81 S.W.2d 632; Wessel v. Lavander, 171 S.W. 331, 262 Mo. 421; 49 C.J. 787. (21) Jurisdiction of the person is present because the appellee did not move to quash service effected upon its officers, and responded to such personal service by filing its motion to dissolve the restraining order in cause No. 459081. In addition thereto, its motion to dissolve was a general appearance because it therein objected to the jurisdiction of the court over the subject matter of the action and did not confine the ground of its motion to a lack of jurisdiction over its person. State ex rel. Pacific Mut. Life Ins. Co. v. Grimm, 143 S.W. 483, 239 Mo. 135; 4 C.J. 1333. (22) The temporary restraining order issued in Cause 459081 (No. 37649 on appeal here) should not have been dissolved but should have been made permanent. (23) The testimony of Krakauer as to the invariable course of business adopted and pursued by plaintiff, and as to the extent and nature of Ganz's work for plaintiff, was clearly competent and admissible, and the court should give it effect. 70 C.J., p. 87, sec. 112, note 30; Chandler v. Prince, 100 N.E. 1029, 214 Mass. 180; 70 C.J., pp. 83-85, sec. 111, note 16, p. 87, sec. 112, note 29; Gulf, etc., R. Co. v. Booth, 97 S.W. 128. (24) The effect of defendant's answer to plaintiff's petition and plaintiff's answer to defendant's cross-bill seeking cancellation and forfeiture, was to convert the suit into one in equity. Complete relief should be here given. Rhodus v. Geatley, 347 Mo. 397, 147 S.W.2d 631; Auldridge v. Spraggin, 163 S.W.2d 1042; Dinkelman v. Hovekamp, 336 Mo. 567, 80 S.W.2d 681; Slagle v. Calloway, 64 S.W.2d 923, 333 Mo. 1055; Shaffer v. Detie, 191 Mo. 377, 90 S.W. 131; 26 Washington University Law Quarterly, p. 475, "Declaratory Judgments," by Judge Laurence M. Hyde; Kimberlin v. Roberts, 341 Mo. 267, 107 S.W.2d 24; Waugh v. Williams, 242 Mo. 903, 119 S.W. 223; Moser v. Renner, 179 S.W. 970. (25) The theory upon which the case was tried below must be adhered to here. Bray's Admr. v. Seligman's Admr., 75 Mo. 31; Grossenbacher v. Daly, 287 S.W. 781; E.D. Stair Corp. v. Taylor, 39 F.2d 788. (26) Clauses VI and XVIII of the written sub-lease clearly demonstrate that plaintiff is not required to pay defendant's federal and state income tax. Ludlow Saylor Wire Co. v. Wollbrinck, 275 Mo. 339, 205 S.W. 196; E.D. Stair Corp. v. Taylor, 39 F.2d 788. (27) Defendant confuses the Federal tax formerly assessed against rents (by way of tax upon income) with the federal income tax now assessed against defendant upon its statutory net income. They are not the same. Clause VI is precise and applies only to any tax assessed against rental, as such. United States v. Cowden Mfg. Co., 312 U.S. 34, 61 S.Ct. 411, 85 L.Ed. 497; Consolidated Aircraft Corp. v. United States, 31 F. Supp. 247; United States v. Martin, 60 S.Ct. 32. (28) There was a mutual mistake between the parties as to the ownership by Lennox of a property right under Clause VI of the lease, to be reimbursed its federal and state income taxes from Blank as rent (and in Lennox demanding same from Blank) and a corresponding mistake of fact on the part of Blank in paying the sums demanded by defendant under Clause VI. These mistakes arose from an erroneous view of the legal effect of the lease (Clark v. Carter, infra). The elements of absence of consideration, of reliance on the representations of the agent of defendant, of surprise, mutual mistake and unconscionable advantage, are such as will, in equity and good conscience, bring this case within the rule that equity will relieve the plaintiff from such a mistake. Clark v. Carter, 234 Mo. 90, 136 S.W. 310; Griffith v. Townley, 69 Mo. 13; Troll v. Sauerbrun, 89 S.W. 364, 114 Mo. App. 323; Frederick v. Union Elec. L. P. Co., 336 Mo. 1038, 82 S.W.2d 79; Cook v. Smith, 184 Mo. App. 561, 170 S.W. 672; 48 C.J. 763, sec. 319; Koontz v. Central Natl. Bk. of Boonville, 51 Mo. App. 275; Castleman v. Castleman, 184 Mo. 432, 83 S.W. 757; McIntyre v. Casey, 182 S.W. 966; Pomeroy, Eq. Jur. (3rd Ed.), sec. 841; Picotte v. Mills, 200 Mo. App. 127, 203 S.W. 825; 40 Amer. Jur. 845, secs. 189, 190; 16 Cyc. 756, 757. (29) All payments under Clause VI were involuntarily and erroneously made under a mistaken assumption of the obligation imposed by that clause and under duress of the clause providing forfeiture in case of failure to pay rent on time. The statute of limitations does not bar recovery by plaintiff of sums which it erroneously paid defendant in discharge of its single continuing obligation under a single written contract, more than five years prior to this suit. 37 C.J. 865, note 96 (a); Freund Motor Co. v. Alma Realty Inv. Co., 142 S.W.2d 793; Emery Bird Thayer v. Williams, 107 F.2d 965; Eureka Bank v. Bay, 90 Kan. 506, 135 P. 584; Roberts v. Neale, 134 Mo. App. 612, 114 S.W. 1120; MacAdoo v. Metropolitan Life, 110 S.W.2d 845; Gammon v. McDowell, 208 Mo. App. 616, 235 S.W. 461. Claimed oral agreements with a dead agent of plaintiff are ineffectual to increase plaintiff's rental obligations under the 69 year written sub-lease. (31) There was no waiver by plaintiff of its rights under the original written lease. Schwab v. Brotherhood of American Yeomen, 305 Mo. 148, 264 S.W. 690; Miller v. Rose Bud Bank, 234 Mo. App. 647, 116 S.W.2d 267; 40 Amer. Jur., p. 845, secs. 189, 190; Freund Motor Co. v. Alma Realty Co., 142 S.W.2d 793; State ex rel. Met. Life Ins. Co. v. Shain, 334 Mo. 385, 66 S.W.2d 871. (32) The payments made by plaintiff to defendant, even though they are claimed by defendant to constitute admissions of plaintiff that the legal effect of Clause VI is to require plaintiff to pay defendant's taxes upon its income, do not create estoppel against plaintiff. Freund Motor Co. v. Alma Realty Co., 142 S.W.2d 793; Emery Bird Thayer v. Williams, 107 F.2d 965; Crawford v. Lockwood, 9 How. Pr. 547; Skavdale v. Mayer, 21 Wn. 10, 56 P. 841; Daub v. Northern Pac. R. Co., 18 F. 625; 21 C.J., p. 1148, notes 67 (a) and (b); Charter Oak Inv. Co. v. Felker, 60 S.W.2d 655; The Boston Hat Manufactory v. Messinger, 2 Pick. 223; O'Malley v. Wagner, 76 S.W. 356; Elfante v. Pizitz, 169 N.Y.S. 910; Grossenbacher v. Daly, 287 S.W. 781; E.D. Stair Corp. v. Taylor, 39 F.2d 788. (33) The claimed oral agreements between Lennox and the dead agent of Blank (denied by plaintiff appellant), if they were made, went only to the basis of computation of a liability erroneously assumed to exist. Cook v. Smith, 184 Mo. App. 561, 170 S.W. 672. (34) The five year limitation applied in Missouri Township, Chariton County v. Farmers Bank, 328 Mo. 868, 42 S.W.2d 353, is not applicable here as the cases are readily distinguishable on these facts. Missouri Township, Chariton County, v. Farmers Bank, 328 Mo. 868, 42 S.W.2d 353; Roberts v. Neale, 134 Mo. App. 612, 114 S.W. 1120; Illinois R. Co. v. Indianapolis Union Ry., 6 F.2d 830; MacAdoo v. Metropolitan Life, 110 S.W.2d 845; Gammon v. McDowell, 208 Mo. App. 616, 235 S.W. 461; Sheer v. Trust Co. of St. Louis, 49 S.W.2d 135; 37 C.J., sec. 224, p. 859; Natl. Bank of Commerce in St. Louis v. Laughlin, 305 Mo. 8, 264 S.W. 706; Kearns v. Heitman, 104 N.C. 332, 10 S.E. 467. (35) Johnson v. Stebbins-Thompson Realty Co., distinguished from the case at bar, upon its facts. Johnson v. Stebbins-Thompson Realty Co., 177 Mo. 581, 76 S.W. 1021; Missouri Cattle Loan Co. v. Great Southern Life Ins. Co., 330 Mo. 988, 52 S.W.2d 1. (36) In further reply to defendant's contentions: And concerning weight to be accorded Adams' testimony, and effect of accepted rent payments. Smith v. Pullman Co., 138 Mo. App. 238, 119 S.W. 1072. (37) Injunction should go and costs should be awarded plaintiff in the separate injunction suit.

R.R. Brewster and John G. Madden for J.E. Blank, Inc., on motion for rehearing.

(1) The opinion misconstrues the lease. (2) The opinion ignores the rule that since the lessor drafts the instrument every ambiguity should be resolved against him. Riesenberg v. Realty Co., 214 Mo. App. 43, 258 S.W. 23. (3) The construction requiring payment of the personal income tax of the lessor is unenforcible and impracticable. (4) The opinion is in conflict with controlling cases. Riesenberg v. Primary Realty Co., 258 S.W. 23; Elliott v. Winn, 264 S.W. 391; Missouri Athletic Association v. Delk, 20 S.W.2d 51; Laclede Gas Co. v. Union Trust Co., 12 S.W.2d 432; Dean v. Lee, 52 S.W.2d 426; Owen v. Fletcher Trust, 189 N.E. 173; Catawissa R.R. v. Philadelphia Ry., 99 A. 807; Sharon v. Erie, 112 A. 242; Illinois Central v. Indianapolis, 6 F.2d 830; Young v. Illinois Athletic Club, 141 N.E. 369. (5) The basis of calculation adopted by the trial court was arbitrary.

[865] DOUGLAS, J.

This is a suit for a declaratory judgment and other relief. J.E. Blank, Inc., lessee, plaintiff, asks for a declaration of its liability under a sublease from the Lennox Land Company, lessor, defendant, particularly as to its liability to pay defendant's income taxes by way of rent in addition to the stated amount of rent reserved; for an accounting and judgment for payments already made; and for an injunction restraining the forfeiture of the sublease. A temporary injunction was issued. Defendant joins in the request for a declaration of the rights and obligations of the parties under the sublease and asks that the temporary injunction be dissolved and the lease forfeited.

The trial chancellor found all fact issues in favor of defendant; gave defendant judgment for the amount of its income taxes which had accrued at the time suit was filed and plaintiff had refused to pay; also ordered the amount of defendant's income taxes which had accrued during the trial be calculated and paid; dissolved the restraining order; but denied defendant the right to forfeit the lease if plaintiff paid all arrearages. The trial chancellor retained jurisdiction for the purpose of carrying the decree into effect. Both parties have appealed. Plaintiff, pending the first suit, filed a second suit in a different division of the circuit court in which it sought a second order restraining a threatened forfeiture of the lease. A permanent injunction was refused and plaintiff has appealed. That appeal has been consolidated with the cross appeals in the first suit. The three appeals are considered and disposed of herein. In this situation we shall refer to the parties as plaintiff and defendant.

Plaintiff includes in its petition for a declaratory judgment a request for other relief of equitable character. "Relief by declaratory judgment is sui generis, and while not strictly legal or equitable, yet its historical affinity is equitable." Borchard, Declaratory Judgments, pp. 137, 8, 172, 178. We quoted the above with approval in Liberty Mutual Ins. Co. v. Jones, 344 Mo. 932, 130 S.W.2d 945 where we held in effect that a cross bill seeking equitable relief converts a suit for a declaratory judgment into one in equity. Thus we now consider this case as we would a suit in equity.

Defendant holds a 99-year lease on a lot at the southwest corner of 11th Walnut Streets in Kansas City on which is a six-story building. Defendant first sublet this property to one Federman by a sublease dated February 18, 1914 for a term from March 1, 1914 to July 31, 1925. On October 3, 1919 and while Federman was in possession under the first sublease, defendant made a second sublease with the Metropolitan 5 to '50c Stores, Inc. for a term to begin after the expiration of the Federman sublease. Metropolitan never took possession under its sublease but assigned it to plaintiff on January 19, 1924. Plaintiff went into possession on August 1, 1925.

The primary question for decision is whether by the terms of Section VI of the sublease plaintiff must pay by way of additional rent the amount of income taxes assessed under the current laws against defendant on the income defendant receives as rent from plaintiff.

The sublease, by Section V, reserves as rent "the net undiminished sum of $50,000 Dollars per annum." Besides this sum the lessee agrees to pay as additional rent such other sums as may be assessed against lessor for income taxes as provided by Section VI which is:

"Section VI. It is the intention of the parties to this lease, and a provision so far of the essence of the contract evidenced hereby and without which provision and agreement of the Lessee this contract would not have been entered into between the parties, that the payments specified in Section V of this lease, shall be paid by the lessee and received by the Lessor as a net sum, without deduction, discount or diminution of any character, or because of or for or on account of anything whatsoever; and as one of the considerations for the making of this lease, as hereinbefore recited, the lessee further covenants, undertakes, promises and agrees to pay to the Lessor, or for it or them to persons authorized by law to receive the same, as part rent of the premises herein demised, in each and every year so long as the term hereby created shall obtain, the [866] following additional sums of money, to-wit:

"(a-1). All and every such sum and sums of money as, under any state law or any federal law, statute, ordinance, lawful regulation, or governmental authority whatsoever, now existing, or which hereafter may be enacted, ordained, or prescribed, shall be charged against, levied or assessed, upon or against, or be required to be paid out of, or because of, or be chargeable against the sum of the rentals, or the amount of any installment or the sum of two or more installments received by the lessor, or payable to said lessor and hereinbefore reserved in said Section V by way of tax upon the income of the Lessor, represented by or derived from said rental, or represented by any one installment, or by two or more installments thereof, or by way of any other tax, assessment, impost, levy or charge, assessed, charged or levied by any governmental authority whatsoever, State, Federal or Municipal, in the exercise of the power of taxation in any of its aspects, or of the police power, without release, exemption or exception on account of the nature or extent of any such tax, levy, impost, or assessment; the sums reserved as rental in such Section V hereof, having been determined upon and settled in view of the agreement of the lessee to pay the further and additional sums by this subdivision of this Section (VI) specified."

When the Federman lease was made the 1913 Federal Income Tax Act (38 U.S. Stat. at Large, 170), the first enacted under the Sixteenth Amendment, was in effect. Under its terms a lessee paying rent in excess of $3,000.00 a year was required "to deduct and withhold from such" rent a sum sufficient "to pay the normal tax imposed thereon", and to pay such sum directly "to the officer of the United States Government authorized to receive the same." Thus the tax was collected at the source. The 1916 Act did away with such collection of taxes at the source so far as lessees were concerned and by the 1918 Act collection at the source was eliminated altogether except as to nonresident aliens. These latter acts levied a direct personal tax against the recipient of taxable income. Missouri enacted an income tax law in 1917, Laws 1917, p. 524, now Section 11343, R.S. 1939, but it never required such a withholding from rents.

Plaintiff pleads in its petition and now contends here, that the section requiring plaintiff to pay income taxes was copied in practically identical terms from the Federman sublease and was intended to cover only the tax assessed specifically against the rent under the terms of the 1913 Act which was in effect when the Federman sublease was executed. Consequently, plaintiff argues, it is not required to pay the type of income tax now assessed against defendant as the 1913 Act has been superseded and the tax is no longer directed against the rent but against defendant's income. Plaintiff asserts leases containing clauses of a similar type have been held to refer to the tax assessed under the 1913 Act and not to include the present form of personal income taxes. In support of its assertion plaintiff relies on these cases: Elliott v. Winn, 305 Mo. 105, 264 S.W. 391; Laclede Gas Light Co. v. St. Louis Union Trust Co., 321 Mo. 782, 12 S.W.2d 432; Missouri Athletic Assn. v. Delk, 323 Mo. 765, 20 S.W.2d 51; Dean v. Lee, 227 Mo. App. 206, 52 S.W.2d 426; Riesenberg v. Primary Realty Co., 214 Mo. App. 43, 258 S.W. 23. All consider tax clauses of long-term leases.

The first case in this State to consider such a tax clause was the Riesenberg case decided by the St. Louis Court of Appeals in 1923. The lease went into effect in 1906. It anticipated the levying of income taxes by providing lessee should pay "such income tax as would be payable on account of the rent reserved." Judge Becker, after reviewing a number of cases and discussing the terms of the income tax law then in effect, concluded such law imposed no income tax "payable on account of the rent herein reserved" but the tax was upon the general net income of lessor. He held the income tax contemplated by the lease was one which was "directed specifically against the rent reserved" [such as the 1913 Act]. Lessee was therefore not liable for it.

The first case to reach this court was the Elliott case decided in 1924. The lease was executed April 26, 1916 while the 1913 Act was still in effect. We held the writer of the lease was influenced by that act which struck at the rent itself. The lease required lessee to pay all income taxes assessed against the rents. We held this did not include income taxes assessed against the person under the terms of the 1916 Act even though a portion of such person's income may have arisen from the rent paid under the lease. In reaching our decision we observed [867] "we do not question the proposition that, as a part of the rent reserved, the lessor could have required the lessee to pay all or any portion of said lessor's personal income tax upon his net income, whether all of such net income came from rent or not. Nor do we question that the lessor might have required, as a part of the rent reserved, the lessee to pay such portion of his personal income tax as the rent reserved bore to the total net income."

The Laclede Gas Light case was decided in 1928. The lease, dated March 30, 1906, directed lessee to pay all taxes on the demised premises or upon the income, rents or profits arising therefrom. We held the income tax law then in effect did not levy a tax on rents which was the sort of tax lessee was required to pay, and cited the Elliott and Riesenbeg cases in support.

The Missouri Athletic Association case came next. The lease was dated October 15, 1914 and the provision for taxes covered those levied "on account of said demised premises . . . or the rental thereon." We construed this to refer to taxes directed against the rent and held that lessee was not liable for any tax on lessor's net income.

The Dean case was ruled strictly on the authority of the Elliott case.

In all these cases the leases were made either before or during the period covered by the 1913 Act and the tax clauses were construed to cover only such income taxes as were assessed directly against the rent.

Whether or not an agreement by a lessee to pay lessor's taxes includes income taxes assessed against the lessor's income depends upon the words of the lease, the context in which they occur and the subject matter to which they are applied. Stony Brook R. Corp. v. Boston M.R. Co., 260 Mass. 379, 157 N.E. 607, 53 A.L.R. 700.

There are cases from other jurisdictions, holding a lessee is obligated to reimburse his lessor for income taxes paid on income derived from rent where such is the intention of the parties to the lease, cited and discussed in the Missouri Athletic Assn. case. See also annotations in 140 A.L.R. 517; 124 A.L.R. 1020, and other annotations therein cited.

Turning now to the sublease and analyzing Section VI we find it first covers generally taxes levied by any governmental authority then in effect or later enacted. It then covers taxes specifically chargeable against or required to be paid out of rental. But it next covers taxes " upon the income of the lessor represented by or derived from said rental."

It is true that Section VI of the sublease is almost identical with the same section of the Federman sublease. It is also true that Section VI clearly requires lessee to pay the character of income tax which was assessed under the 1913 Act in effect when the Federman sublease was made. Even so it is our conclusion that Section VI of the Federman sublease was designed to and did meet future changes in the tax laws such as the change which now directs the tax against the lessor's income rather than against the rent itself. And it was so construed by defendant and Federman when the change to the present type of income tax occurred and thereafter. This intention is not contradicted by the section in the Federman sublease which sets out the place where rents are payable. As found in the present sublease, the section reads: "The lessee agrees to make payment of rents herein agreed to be paid (except payments to be made to the City of Kansas City, to the State of Missouri, or to the United States, direct) at the office . . ." Both subleases in still another section require local and State taxes and utility rates assessed against the demised premises to be paid by lessee. The section as to the place of payment amplifies rather than restricts the type of taxes lessee is obligated to pay under Section VI. Moreover Section VI of the sublease broadened the obligation of lessee beyond that imposed by the Federman sublease to cover taxation "in any of its aspects." A provision was also added that the contract was entered into only on the agreement of lessee to undertake the obligation (to pay taxes) prescribed in Section VI. Of further and important significance is the fact the sublease was made on October 3, 1919, some time after the 1913 Act was repealed, and when there was no income tax directed against rents but against the net income of the taxpayer.

It seems clear to us that Section VI obligates the lessee to pay the income tax assessed under the present law against lessor's income derived from the rent.

The parties themselves have given this interpretation to Section VI. The evidence [868] shows that in April, 1926, Adams, defendant's bookkeeper, conferred with Ganz, plaintiff's president, about the payment of the 1925 income taxes. A statement of the amount due because of taxes had previously been sent plaintiff but plaintiff had objected to the way the taxes had been calculated. The parties conferred about the period in 1925 for which plaintiff was liable, having had possession for only five months, and about various deductions and credits in figuring both the Federal and State income taxes. After the conference a revised statement was submitted to plaintiff and plaintiff paid. There is no evidence whatever that plaintiff ever raised any question or objection as to its liability for the taxes. The same course of dealing between the same persons was had in 1927 when the statement was again revised and again plaintiff paid. Then in 1928 an amount to be used as the base for calculating the tax was agreed upon. This amount was reached by deducting from the $50,000.00 rent the $20,000.00 ground rent paid by lessor to the owner of the fee and by also deducting two items of corporation taxes leaving the amount $29,876.10 as the base agreed upon. The current Federal and State income tax rates were then applied. This practice was followed in subsequent years except the amount used varied slightly for which no explanation appears. The 1929 statement used $29,882.00 as the base. The statements rendered in 1930, 1931, 1932, 1933, 1934, 1935 and 1936 are based on $29,882.50. Then in 1937, after paying the taxes for eleven years without objection, except in the first instances and then only as to items entering into the calculation, plaintiff takes the position for the first time that Section VI did not apply at all to the present type of income taxes and refused to pay the tax on the 1936 income.

Ganz was active as president of plaintiff company and had extensive ostensible authority. There can be no question of his authority to deal with Adams in construing the sublease. He died November 24, 1934. His death did not at once affect the settlement made with Adams for plaintiff continued paying taxes on the statements submitted in 1935 and 1936, calculated on the agreed base.

Ganz' death did not make Adams an incompetent witness under Section 1887, R.S. 1939 which hushes one party, where the other party is dead. Both parties to the sublease are corporations. The transactions testified to by Adams were between agents of the respective parties. The statute removed factors which under the common law disqualifies a witness. We have held that an agent at common law was not disqualified as an interested party. Consequently the statute is not applicable to an agent and his competency is not affected by the statute. Maness v. Graham, 346 Mo. 738, 142 S.W.2d 1009; Bernblum v. Travelers Ins. Co., 340 Mo. 1217, 105 S.W.2d 941; Freeman v. Berberich, 332 Mo. 831, 60 S.W.2d 393. This court has recognized an exception to this rule. The exception provides that the death of a contracting agent excludes the surviving party who contracted with him. It has been followed in a line of cases which rely on Stanton v. Ryan, 41 Mo. 510 and Williams v. Edwards, 94 Mo. 447, 7 S.W. 429, which seem to be of doubtful authority in view of the principle announced in our above recent decisions. But even under the exception Adams is not hushed. It covers a transaction between an agent and a party to the suit, not one between an agent and an agent. Adams being but an agent, not a party, is therefore competent. Carroll v. United Rys. Co., 157 Mo. App. 247, 137 S.W. 303, is expressly overruled in so far as it holds to the contrary. See also 11 Laws Series, M.U. Bulletin, 60.

The practical construction given to a contract by the parties may not be considered where the contract is free from ambiguities. In such a case the contract must be construed as written. But where a contract is not clear it is construed as it is understood and acted upon by the parties.

Is Section VI ambiguous? The trial judge held it obligated plaintiff to pay the present type of income taxes. On appeal to this court before this case came to the Court en Banc it was first heard before Division One and an opinion was prepared holding the contrary and reversing the trial judge. Upon a dissent the case was transferred to Banc. The present opinion reaches an opposite conclusion to the one reached in Division and upholds the trial judge. Language is ambiguous where it is susceptible of interpretation in opposite ways.

In view of the ambiguity of Section VI we hold the trial court's refusal to forfeit the sublease was proper. A forfeiture [869] of a lease will not be enforced for a breach of a covenant unless the breach is unequivocal.

The evidence does not sufficiently show the agreement for calculating the tax liability on an agreed base was to continue throughout the entire term of the sublease despite Adams' testimony the method agreed upon in 1928 was "for all future invoices" and "for subsequent years." The fact that defendant submitted successive annual statements calculated on an agreed base indicates in this case nothing more than the comprise was offered and accepted each year until 1937 when plaintiff elected not to accept it. Terms and provisions of income tax laws are ever fluctuating and changing according to the needs of the sovereign. The base agreed upon was an arbitrary one and could not have been comprehended to produce the actual, down to the penny amount of taxes assessed against or paid by defendant each year. The statements show the computation was made by applying the current rate fixed under the Federal law against the agreed base and doing the same for the State tax using the same figure and then adding the two results which made up the amount due. As previously stated, the only deductions agreed upon to be subtracted from the $50,000.00 annual rent were the $20,000.00 ground rent paid the owner of the land and two items of corporation taxes. Although the Federal law permitted as a deduction the State income tax paid the previous year but not the Federal tax paid, and the State law permitted the opposite, such deductions nor any others were recognized in the compromise.

Plaintiff has recalculated the taxes for each year since 1925 using deductions for depreciation and for other items recommended by its income tax expert as standard practice in order to show that it has paid defendant in excess of the taxes defendant in turn paid to the Federal and State governments. Plaintiff also points out that defendant since 1925 has received no other income outside of the lease and that the State law was amended in 1929 (Laws 1929, p. 423, now sec. 11343, R.S. 1939) to exempt holding companies and relies on a ruling from the State Auditor given at its request in 1938, after the suit was filed, that defendant was a holding company and was not subject to the State tax. However, defendant was not previously apprised of such ruling and had paid the State tax each year. We do not believe plaintiff may complain, under the circumstances of this case, that defendant failed to secure this exemption. Plaintiff further objects, for the first time, to a decree of the Board of Tax Appeals entered in 1925 about what depreciation defendant could deduct in its Federal returns. Plaintiff will not now be heard to make such claims and objections. It is certainly concluded by its annual compromise on the base amount for the years the compromise was accepted. The evidence does not show nor did the trial chancellor find any hint of fraud, actual or constructive, or unfair dealing on the part of defendant in making or continuing the compromise.

So far as taxes accruing in the future or taxes not finally determined are concerned plaintiff should be permitted, if it desires, to resist defendant's liability for taxes, to claim refunds from the taxing authorities, to try out its theory that defendant being a mere conduit is exempt from the Federal tax, and to obtain such exemptions and deductions which are proper. However this must be carried on at plaintiff's risk and expense, under such safeguards for the protection and indemnification of defendant and its stockholders, as the trial chancellor sees fit to impose.

Section VI doesn't attempt to cover how defendant's income tax should be figured. The matter of allowances, credits and other items of deduction entering into the determination of defendant's net taxable income derived from the rent is not mentioned. It would be most unlikely that at the time the sublease was made the details entering into the computation of future taxes of different types could be foreseen (or understood). We think it proper in granting full relief that the chancellor recognized the silence of the lease on this subject and set up in his decree certain practices as to deductions to be followed in the future. He found that plaintiff need pay not more than the actual amount charged against defendant for income taxes upon defendant's income derived from the $50,000.00 annual rent computed after defendant had taken the deductions authorized in connection with the income from the sublease.

The chancellor computed the taxes for the years 1936 and 1937 and ordered plaintiff to reimburse defendant for them. He also ordered plaintiff to pay defendant the taxes for 1938, 1939 and 1940 [870] which had accrued since the trial. All this he had the right to do as the "price of his decree" denying the forfeiture. See State ex rel. Couplin v. Hostetter, 344 Mo. 770, 129 S.W.2d 1; Priest v. Oehler, 328 Mo. 590, 41 S.W.2d 783. Plaintiff's objection to this part of the decree is bottomed on those cases which hold that a petition may not be amended to set up a cause of action which had not accrued at the time the original petition was filed, such as for installments of rent coming due after the filing of the petition. Lennox v. Vandalia Coal Co., 158 Mo. 473, 59 S.W. 242. Such rule is not apposite in any equity case under the conditions we find here, and this is especially so in view of plaintiff's attempt to tender into court the amounts in default.

In finding for defendant the trial chancellor found for the right party. His decree is affirmed. The cause is remanded for such further proceedings in harmony herewith as may be necessary for the settlement of the amounts due as additional rent, the trial court to retain jurisdiction for such further orders as it may determine necessary to carry out the terms of the decree.

The decree in the second suit, where a temporary restraining order was issued by a second division of the circuit court after the first division of the same court has already acquired jurisdiction of the case, dismissing the case because the second division had no jurisdiction is likewise affirmed. State ex rel. Banner Loan Co. v. Landwehr, 324 Mo. 1142, 27 S.W.2d 25; O'Malley v. Lamb, 342 Mo. 171, 113 S.W.2d 810.

Affirmed and remanded. All concur except Gantt, J., absent.

[865] DOUGLAS, J.

ON MOTION FOR REHEARING.

[13] DOUGLAS, C.J.

Plaintiff, through additional distinguished counsel, vigorously contends we have incorrectly analyzed Section VI wherein we rule it covers taxes levied "upon the income of the lessor represented by or derived from said rental." We took the quoted words from Section VI itself. Stripping away the alternatives and other language not pertinent to the issue before us, Section VI imposes on plaintiff the obligation for taxes thus: "Such sum of money as, under any law, shall be required to be paid because of the sum of the rentals received by lessor, by way of tax upon the income of the lessor represented by or derived from said rental, or by way of any other tax levied in the exercise of the power of taxation in any of its aspects without exception on account of the nature or extent of any such tax."

Plaintiff asserts Section VI comprehends but one tax only — one in the nature of a "rentals" tax "irrespective of the form which such tax in collection might assume" and that an income tax upon the person of lessor based on its income even though such income is derived from the rental is in nowise included. To the writer the language of Section VI seems clearly to cover an income tax but because of divergent judicial views on this issue we have held it to be ambiguous.

The principle that an ambiguous contract will be given the construction placed upon it by the contracting parties has been expressed and followed many times in this State. See 7 West's Mo. Digest, "Contracts" Key number 170. In our principal opinion we have pointed out the Federman sublease, which supplied the form of the clause in the present sublease, was construed to cover income taxes of the same nature as the present federal income tax. The parties have given the present sublease the same construction and have done so annually for eleven years. Plaintiff has reimbursed defendant for income taxes throughout that period. When this sublease was entered into the present form of income tax was in force, the witholding tax charged directly against rentals had been repealed.

The principle of practical construction arising from the conduct of the parties is not subservient to the rule that an ambiguous lease is to be construed most strongly in favor of the lessee. Such rule of construction is generally recognized but has received only scant support in this State. Riesenberg v. Realty Co., 214 Mo. App. 43, 258 S.W. 23, supra; Amzi Realty Building Co. v. Kelly (Mo. App.), 49 S.W.2d 214. The application of such rule is limited. In Pere Marquette R. Co. v. Wabash R. Co., 141 Mich. 215, 104 N.W. 650 the court said: "Counsel for the Wabash Company say that there is no ambiguity in the terms of this lease, and that, if it is susceptible of two constructions, the one most favorable to the lessee must prevail. We recognize that as a rule of construction within proper limits, but we think it should not be invoked [871] where the intention of the parties is determinable from the language used, when examined in the light of surrounding conditions and circumstances." Nor may it be invoked, in our opinion, where the meaning of an ambiguous contract has already been settled by the construction of the parties themselves. Under such circumstances the party who did not employ the ambiguous language is in no position to complain of being misled by it.

Ascertaining the true meaning of the sublease through the construction of the parties and acting pursuant to such construction is not a modification of the terms of the sublease. A provision in the sublease forbidding any modification of it except in writing duly executed and acknowledged is not thereby violated. Likewise it does not violate the rule expressed in Warren v. A.B. Mayer Mfg. Co., 161 Mo. 112, 61 S.W. 644 that subsequent verbal changes or modifications are not allowed to vary the rights of the parties under a written contract which the Statute of Frauds requires to be in writing. In that case the court refused to enforce a verbal arrangement for a substantial variation of a contract required to be in writing.

Plaintiff's motion for rehearing is overruled. All concur except Gantt, J., absent.