Opinion
No. 27804.
May 16, 1950.
APPEAL FROM THE ST. LOUIS CIRCUIT COURT, EDWARD M. RUDDY, J.
Cecil Block, St. Louis, Donald J. Sher, St. Louis, for appellant.
Johnston L. Pearcy, St. Louis, Claude O. Pearcy, St. Louis, for respondent.
This is an appeal from a judgment of the Circuit Court of the City of St. Louis in favor of respondent and against appellant in the sum of $2250. The controversy between the parties arose out of the leasing and alteration and repair of property located at 2300-2302 South Broadway in the City of St. Louis. Respondent will be referred to herein as plaintiff and appellant as defendant.
The petition of plaintiff alleged that on or about December 11, 1945, plaintiff and defendant entered into agreements in writing whereby defendant as lessor agreed to let to plaintiff as lessee premises at 2300-2302 South Broadway at a rental of $1800 per year; that by said written agreements the premises were to be remodeled and placed in condition for use as a tavern, and that plaintiff was to be placed in possession of the premises by February 1, 1946, or within a reasonable time thereafter; that as a part of the consideration for said agreements plaintiff paid $2250 of which $1500 was an advance on the rent thereof and $750 was to defray the expenses of certain paneling, light fixtures, and other fixtures required by plaintiff on said premises; that by the terms of said leasehold it was to continue for a period of five years from the time plaintiff was placed in possession thereof; that she was never placed in possession thereof nor were said premises ever placed in condition for habitation or use as a tavern as required by the terms of said written agreements; that as a result of the breach of agreements aforesaid, plaintiff was required to lease other premises at an increased rental of $10 per month, plaintiff lost the money so advanced, which money defendant refused to return, to-wit, the sum of $2250 and that by virtue of said failure to render possession to plaintiff, she lost the value and use of said premises in the amount of $2250. Plaintiff prayed judgment against defendant in the sum of $5350.
Defendant filed an answer in which he denied each and every allegation of plaintiff's petition and alleged by way of counterclaim that plaintiff and defendant entered into a written agreement on or about December 11, 1945, whereby plaintiff leased the premises described at the yearly rental of $1800; that as a part of said written agreement the premises were to be remodeled in accordance with instructions of plaintiff; that plaintiff paid the sum of $750 to partially defray the costs and expenses of remodeling said building and making certain changes in accordance with plaintiff's request, which changes were made at a cost considerably in excess of the sum of $750; that plaintiff deposited the sum of $1500 to secure the terms and conditions of the lease which was to continue for a period of five years from the time that said building was ready for occupancy; that on May 1, 1947, said building was ready for occupancy and plaintiff was so advised but plaintiff breached the terms of said lease and refused to take possession of said premises and that said building was unoccupied for a period of seven months, causing defendant to suffer a loss of $1050 of rentals, although defendant made every effort to secure a new tenant for said premises and after diligent effort was able to secure a tenant for a two year period at a monthly rental of only $100, and as a direct result of plaintiff's failure to take possession of the premises and pay the rent, in accordance with the terms of the lease, defendant suffered a loss of $3000. Defendant prayed judgment on his counterclaim in the sum of $4050 and that plaintiff's cause of action be dismissed.
The written instruments signed by the parties and dated December 11, 1945, were introduced in evidence by plaintiff as her Exhibits 1 and 2. Plaintiff's Exhibit 1 is entitled "Lease" and provides: "This Lease, Made and entered into this 11th day of December, Nineteen Hundred and Forty-five by and between Jake Novich, Lessor, and Inza M. Tuohy, Lessee, Witnesseth: That the said lessor, for and in consideration of the rents, covenants and agreements hereinafter mentioned, and hereby agreed to be paid, kept and performed by the said lessee * * * has Leased, and by these presents does Lease to the said lessee for the term of five years commencing on the 1st day of February, 1946, and ending on the 31st day of January, 1951, the following described premises in the City of St. Louis, * * *." The property is described in said lease as "The first floor storeroom numbered 2300-2302 South Broadway together with the basement and ground in the rear of said building." The yearly rental provided for in the lease is $1800 payable monthly in advance in installments of $150 each on the first day of each calendar month of said term.
Among the provisions in the lease with which we are concerned are the following:
"If said lessee shall violate the terms of this lease by involuntary or voluntary vacation of the premises or by refusal or neglect to pay the rental thereof when due to said lessor, then said lessor may at lessor's option, offer and rent or lease the said premises for said lessee's account at any rate readily obtainable, for the unpaid or unexpired term of this lease.
"It is understood and agreed that forthwith upon the signing and execution of this lease the said Inza M. Tuohy will pay to the said Jake Novich the sum of seven hundred fifty dollars ($750.00) to partially defray the cost of alterations and remodeling of said building.
"It is further understood and agreed that the said Inza M. Tuohy will forthwith deposit and pay over to the said Jake Novich the sum of fifteen hundred dollars ($1500.00) to be used as security for the payment of all rent and conditions of this lease of the premises and will be used in payment of the last ten (10) months rent of said lease.
"It is further agreed that the said Jake Novich in consideration with the leasing of the premises will make improvements and alterations in accordance with the signed agreement. The work on said building to commence at once and in the event that said building is not ready for occupancy by February the first that the time will be extended beyond the duration of this lease so as to permit the said Inza M. Tuohy to have five (5) years occupancy of said building."
Plaintiff's Exhibit 2 is a written agreement signed by both parties dated December 11, 1945, setting forth at length and in detail the work of repairing and remodeling that was to be done by defendant on the property in question. It is not disputed that plaintiff paid to defendant the sum of $2250 in accordance with the terms of the lease. Furthermore, it is not disputed that the premises were not ready for occupancy on February 1, 1946, the date fixed in the lease for the commencement of the term. The evidence also shows without dispute that plaintiff did not at any time occupy the premises and that defendant gave plaintiff what is referred to as a written notice of forfeiture dated September 25, 1947. Said notice is referred to as Defendant's Exhibit E.
Plaintiff testified at length that she made many visits to the premises in question from time to time after the execution of the lease and agreement to see how the work of alteration was progressing; that she told defendant at their first conference that she had received notice to move from the premises she then occupied at 617 Pine Street; that for a couple of months after the agreements were signed nothing was done by defendant in the way of repairs or alterations; that she had many conversations with defendant in which she urged him to get started and proceed with the work, repeatedly informing him that she was being sued out of the place where her tavern was then located at 617 Pine Street, and that it was necessary for her to vacate that place not later than February 1st; that she told defendant that she had already received one extension of time for vacating said premises and that the owner thereof would not give her any further time; that defendant then said he could have the alteration work on the property at 2300 South Broadway done by February 1, 1946; that thereafter defendant told her he was having trouble getting help and getting material, but that he never did tell her when she could expect possession of the premises; that she closed her tavern at 617 Pine Street on July 15, 1946, and on August 15, 1946, moved to 18 South Eighth Street where she had to pay a higher rental than the amount called for in the lease involved herein; that about that time she inspected the property at 2300 South Broadway and found that it was in no condition for occupancy; that there was only one man working there cleaning and doing extra work; that the basement had not been cleaned and had not been dug out.
On cross examination plaintiff was shown a paper marked defendant's Exhibit D, which was a letter dated April 21, 1947, addressed to defendant and signed by plaintiff. In said letter plaintiff stated: "I want the panel work at 2300 S. Broadway installed on the south side of the wall, from the front window to the toilet petition [partition] and no place else in the store. This concludes our agreement of Dec. 11, 1945." Plaintiff explained that said letter was written at the request of defendant who wanted to know where the paneling was to go. Defendant testified that the above letter was written at his request so that he would have something in writing because plaintiff had changed her mind more than once about some of the work she wanted done.
Hugh Charles Gillick testified for plaintiff that he was an investigator and adjuster and had acted as a representative of plaintiff in various business matters; that on December 9, 1945, he looked at defendant's property at 2300 South Broadway, which then had a sign on it "For lease" and on the bottom thereof "Alterations made according to tenant's specifications. See Jake Novich, 1004 North Broadway"; that there was a small building at 2302 South Broadway and a larger building at 2300 South Broadway; that the smaller building was in very bad shape and in the larger building the windows were broken out and "it was in pretty bad shape, too"; that he could see very clearly there had been a fire on the premises; that the following day, December 10th, he and plaintiff called to see defendant at his office at 1004 North Broadway to discuss leasing the property at 2300 South Broadway; that in their discussions with defendant he agreed to the express desires of plaintiff for alterations and repairs of the premises; that defendant agreed to everything that is in the lease; that defendant told plaintiff and the witness that when the lease was signed and he was given a check for $2250 by Mrs. Tuohy he would immediately start on the improvements of the building; that the witness and plaintiff both told defendant it was necessary that plaintiff vacate the property where she then had her tavern business not later than February 1st; that they advised defendant that plaintiff had already received an extension of time to vacate said premises, but that she couldn't get any further extension and that defendant said to them, "I can have it done by February 1st for you"; that thereafter on December 11th in the law office of defendant's attorney plaintiff and defendant entered into the written contracts concerning the leasing, alteration, and repair of the premises; that plaintiff and defendant also entered into a separate additional written contract or agreement stipulating what defendant was to do to the premises; that plaintiff then presented defendant with a check for $2250. At this point the witness testified: "Q. Do you recall as to whether or not Mr. Novich made any statement at that time when the agreements were signed concerning when you could expect the repairs and alterations to be completed when Mrs. Tuohy could take possession of the building? A. He told us that would be February 1, 1946." The witness further testified that he saw the condition of the building on February 1, 1946, but that "there hadn't been a thing done to the building and I got in touch with Mr. Novich and told him that the agreement was to have it ready February 1st and it was after that that he got something started."
The witness further testified:
"Q. On February the 1st what was the condition of the building? A. Nothing started.
"Q. What did Mr. Novich have to say then regarding the work to be done? A. He said he would get started on it if the weather would give him a break.
"Q. Did you contact him after February the 1st regarding that matter? A. Yes, I think they got started in about a week."
Further testimony by the witness was to the effect that from that time on he made regular visits to the premises and that the progress of the work was "Very, very slow." The witness stated that he saw defendant on numerous occasions and inquired concerning the progress of the work on the premises. At this point the witness testified:
"Q. What was the response you received from Mr. Novich concerning your inquiries? A. Mr. Novich contacted Mrs. Tuohy and asked her if she wouldn't please get me off of his neck, that I was being too hard on him.
"Q. Did he give you any explanation as to why the work was not completed or wasn't even progressing? A. He was evasive on the matter."
The witness further testified that in the fall of 1946 when he last inspected the premises "They weren't even plastered," and that the work called for by the agreement was not finished.
Frank W. Pottmeyer testified as a witness for plaintiff that he was a tavern owner at 4460 Virginia Avenue in St. Louis and was also in the real estate business; that in September 1947, he saw a for rent sign on the premises at 2300-2302 South Broadway and investigated the place because he had a desire to rent the premises for a tavern. The witness described the condition of the premises as he found them at that time and said the premises were not in a condition to be used as a tavern.
John A. Reardon testified on behalf of plaintiff that he was in the real estate business in the City of St. Louis and had been so engaged for 29 years. He corroborated the testimony given by plaintiff to the effect that she had been given notice on November 30, 1945, to move from the premises she then occupied at 617 Pine Street; that in connection with his efforts to get plaintiff out of the premises at 617 Pine Street he visited the property at 2300 and 2302 South Broadway to inspect it because he knew plaintiff had a lease on it and was then waiting to get possession. He was asked to describe the condition of the South Broadway premises at that time, namely, about March 1, 1946, and stated: "The store — there was no front in it at all, the entire front was out. The store was full of rubbish and debris, broken plaster — it looked like a fire job — I mean, it looked like there had been a fire there."
Defendant was the only witness for his side of the controversy. He testified that he was in the contracting business and had been in that business for 28 or 30 years; that he had owned the building involved herein for about two months before he made the agreements with plaintiff; that the smaller building to the south of the larger building had been a little hamburger stand where a fire had started which had severely damaged the entire premises; that he bought the building from the former owner after the fire had occurred; that he did everything he could to complete the alterations and repairs on the building as speedily as possible; that he entered into a contract with the E. F. David House Moving Company on December 7, 1945, four days before he entered into the agreements with plaintiff, for the purpose of shoring up the premises; that the work was to commence the week of February 7, 1946; that he also entered into an agreement with Stupp Bros. Bridge Iron Company on December 13, 1945, to put in iron girders for the sum of $1271.00; that it took approximately three months for the Stupp Company to deliver the iron beams because it was necessary for that company to send out an engineer to prepare specifications to do the work properly; that it was necessary to get another company, the Miller Erection Company, to install said beams, which was done as speedily as possible; that thereafter it was necessary for him to get bricklayers, which was a very difficult thing to do in the post-war times of 1946; that it was impossible to lay bricks in winter weather as the mortar would freeze and the work would ultimately fall apart; that he also had to get a carpenter to build a roof over the one-story part of the premises at 2302 South Broadway and had to tear out a wall between the two buildings and build entrance ways, and also had to have the place re-wired.
Defendant testified at great length concerning the many difficulties that he encountered in his efforts to repair and remodel the building. We deem it unnecessary to set forth in detail such testimony of defendant. Nowhere in defendant's testimony is there anything to show that the work of repair and alteration was completed by February 1, 1946, the date fixed in the lease for the commencement of the term. Defendant makes no pretense that the premises were ready for occupancy by February 1, 1946, or that the work of alteration and repair had been completed by that date. On the contrary, defendant states in his own brief that "the work of altering and remodeling continued throughout the year of 1946."
Defendant contends that the written instrument agreed to by plaintiff and defendant on December 11, 1945, was a valid and subsisting lease; that it was not an agreement to make a lease but was an executed lease and that the court, therefore, erred in admitting parol testimony concerning conversations between the parties that occurred prior to the execution of the lease.
Defendant cites several cases to support this argument, but we believe the rulings in such cases are not applicable to the facts in this case. The lease itself, Plaintiff's Exhibit 1, fixed the beginning of the term as February 1, 1946, and also fixed the termination thereof as January 31, 1951. The document then goes on and recites the obligations and duties of the parties and provides that the work of remodeling and repairing was to commence "at once" and further recites that in the event that said building is not ready for occupancy by February 1, 1946, the time will be extended beyond the duration of the lease so as to permit Mrs. Tuohy to have five years occupancy of the building.
It is not disputed that the date, February 1, 1946, went by without the building having been repaired and altered in accordance with the agreement. Even defendant does not contend that the premises were in any condition for occupancy on that date. It is true the lease provided for an extension of time so that if there was delay in completing the remodeling and repairs plaintiff would nevertheless have a five year term beginning from the time of occupancy. However, such provision for delay must be construed to mean, not a delay at the pleasure and whim of defendant, but only a reasonable delay. Any other construction would be absurd and would make it possible for defendant to have kept plaintiff out of occupancy and possession for a period that could be in perpetuity.
In the absence of any fixed definite period for such possible delay in completing the work of alteration and repair and the beginning of occupancy by plaintiff, the agreement between the parties was obviously ambiguous. The court was thus warranted in admitting parol testimony to show the circumstances surrounding the negotiations of the parties and their conversations in making the agreements in order to determine their intentions and their own interpretation of the agreements that they were entering into. There is nothing in either the lease or the supplemental agreement to show how long plaintiff was required to wait for the completion of the remodeling and repair work on the building. It cannot reasonably be said that plaintiff was required to continue to wait for completion of the alterations regardless of the length of time that might ensue simply because there was no provision in the lease specifying the time that such work should be completed and her occupancy commence. In such a situation the law declares that the rule of a reasonable time shall govern.
In Magee v. Mercantile-Commerce Bank Trust Co., 343 Mo. 1022, 1027, 124 S.W.2d 1121, 1124, our Supreme Court said: "Options which fix no time have been held void either for indefiniteness or as perpetuities. James on Option Contracts, secs. 218-222; 21 R.C.L. 303, sec. 28; 48 C.J. 960, sec. 40. To avoid this result, the tendency has been (when no time is designated) to establish the rule of a reasonable time under the circumstances. * * *"
In Yost v. Silvers, 138 Mo.App. 524, 119 S.W. 971, the defendant therein on appeal charged that the trial court erred in submitting to the jury the question of the meaning of the contract between the parties as to the time of fixing an invoice of the price of goods, thus leaving it to the jury to determine whether it was on the date of the contract or on the date fixed for the beginning of the work of invoicing. In that case the court said: "We have set out the clause of the contract over which the controversy has arisen, and in our opinion the contract itself was ambiguous as to the date the price lists were to be taken. When that happens, the court may submit to the jury, as a question of fact, which of two or more meanings is to be given to the ambiguous clause. This is what the court did, and all that it did, both by the instructions given at the request of plaintiff and by the instructions given at the instance of defendant. We think this question was properly submitted to the jury, and the jury settled it. It was a question of fact, to be determined in this case largely by the construction the parties themselves by their own acts, as also by the circumstances surrounding the execution of the contract, had put upon it. As in any other case, when the question of fact has been found by the jury, and its finding is supported by substantial evidence, we will not set it aside." Yost v. Silvers, 138 Mo.App. 524, 529, 119 S.W. 971, 973.
In Conservative Realty Co. v. St. Louis Brewing Association, 133 Mo.App. 261, 413 S.W. 229, 231, the parties were involved in a controversy over a lease for a term of years which contained a provision "Should said saloon license be not secured on said premises in said block, then this lease is null and void on ninety days' notice from said lessee." There was no prior mention in the lease of procuring a license. The court held that this was an ambiguity which authorized the lessee to show the purpose for which the premises were to be rented. The court said: "According to old law, the patent ambiguity of the clause might make the stipulation void; but this doctrine is no longer enforced as strictly as formerly, and, whether an ambiguity is patent or latent, a court will endeavor to glean the intention of the parties from the whole instrument and the circumstances attendant on its execution." Conservative Realty Company v. St. Louis Brewing Association, 133 Mo.App. 261, 268, 113 S.W. 229, 231. (Emphasis ours.) We hold that the trial court did not err in admitting the testimony complained of by defendant. See also Ambassador Bldg. Corporation v. St. Louis Ambassador Theatre, Inc., 238 Mo.App. 600, 185 S.W.2d 827, and McDaniel v. Miller, Mo.App., 216 S.W.2d 144.
Defendant contends that the trial court erred in refusing to give his instruction offered at the close of plaintiff's case for a directed verdict in his favor with respect to the sum of $1500 which was paid to defendant by plaintiff to be ultimately applied in payment of the last ten months of the lease. We are unable to agree with defendant on this point. Defendant did not show, in fact he really made no effort to show, that he had completed the repair and alterations of the building within the time specified in the lease, namely, February 1, 1946. Although both parties recognized that an extension of time for the completion of said work might be needed, it was nevertheless defendant's duty, as we have held under the facts and the law, to have the premises in readiness for occupancy within a reasonable time after February 1, 1946. There was ample evidence to support a finding by the jury that defendant did not have the premises ready for occupancy within a reasonable time after said date. Defendant's own pleading states "that on the 1st day of May, 1947, said building was ready for occupancy." This shows that the building was not ready for occupancy until one year and three months after February 1, 1946. We, therefore, rule that the court did not err in refusing defendant's offered instruction which would have erroneously declared, as a matter of law, that the verdict should be for defendant.
Defendant makes a similar complaint with respect to the refusal of the court to give the instruction offered by him to the effect that plaintiff was not entitled to recover against him for the sum of $750, being the amount paid by plaintiff to defendant to defray part of the costs of repairs. We must make the same ruling on this point as we made on the last point above mentioned. It is not disputed that plaintiff did pay to defendant the sum of $750 and it must be remembered that said payment was made upon the condition that defendant would comply with the terms of the agreement and have the property in readiness for occupancy either by February 1, 1946, or within a reasonable time after that date. Defendant failed to comply with the terms of the agreement in this respect, thereby causing damage and loss to plaintiff. It is true defendant presented many explanations and excuses for his failure to comply with the terms of the agreement. However, such explanations and excuses, even taking them as true, are far from sufficient to authorize the court to hold as a matter of law that defendant was relieved of liability for the damages and loss caused to plaintiff by such failure. We, therefore, rule against defendant on this point.
It is to be noted that the jury allowed plaintiff the sum of $2250 only. This was the exact amount she had paid to defendant. No allowance was made to her for damages she claimed she suffered in being required to pay a higher rental when she moved to another location in July, 1946. However, since plaintiff made no complaint against the verdict that matter is not before us.
Defendant next complains that the court erred in giving instruction No. 1 offered by plaintiff. The instruction, after requiring the jury to find the many facts hypothesized therein, submitted to the jury the question of whether defendant failed to repair and remodel the building and place it in condition for use and occupancy as a tavern within a reasonable time after February 1, 1946, and told them that if they found defendant did so fail, then the verdict should be for plaintiff and against defendant on plaintiff's cause of action and in favor of plaintiff and against defendant on defendant's counterclaim.
Defendant contends that there was a total failure of proof that plaintiff by the terms of the lease was to be given possession of the premises on or about February 1, 1946, or within a reasonable time thereafter. Defendant's objection to instruction No. 1 is based upon the same theory as his contention that the trial court erred in holding that the lease was ambiguous as to the time the work was to be completed and his contention that the court further erred in holding that evidence was admissible to show the circumstances and surroundings of the parties at the time they were entering into the agreements. Since we have already held against defendant's theory and contentions on said points and have held that there was an obvious ambiguity in the lease which gave rise to the application of the rule requiring that the work be completed within a reasonable time after the date mentioned, we must necessarily hold against defendant on his contention in regard to instruction No. 1.
We find no reversible error in the record and the judgment should be affirmed.
After this cause was argued and submitted on appeal in this court on February 8, 1950, respondent on May 9, 1950, filed herein a motion alleging that appellant died on May 2, 1950, and praying that the court enter an order substituting Cecil Block, duly qualified and acting administrator of said appellant's estate, in the place of appellant herein. We shall not sustain said motion, for to do so would be at variance with the practice of our appellate courts in such a situation. Instead, the motion for substitution is overruled, and the judgment of the Circuit Court is affirmed as of February 8, 1950, the date of the submission of the cause in this court. Sargent v. St. Louis San Francisco Ry. Co., 114 Mo. 348, 360, 21 S.W. 823, 19 L.R.A. 460; Ray v. Bayer Steam Soot Blower Co., Mo.App., 282 S.W. 176, 179; Mead v. Mead, 1 Mo.App. 247, 254; Alt v. Alt, Mo.App., 249 S.W. 153, 154; Coulter v. Phoenix Brick Const. Co., 131 Mo.App. 230, 235, 236, 110 S.W. 655.
ANDERSON, P. J., and HUGHES, J., concur.