*1 for could be “treated called contract. How defendant things right” pay extras if were called on to for as included Certainly bid? con- part price contract contract as a agreement slop pay for versation in evidence does not show an agreement if would with- extras, as such an made have been sinks consideration, being already bound the contract out furnish them. peremptory
Upon is clear that defendant’s the whole record given. judgment should been instruction above set forth have The The slop made sinks. was excessive the allowance judgment $1362.74. amount of this item was shown to be days remittitur entered affirmed on condition that within fifteen judgment $1362.74, judgment of the date other-wise concur, All except will remanded. stand reversed and cause voting, time Says, J., not because not a member of the court at the was submitted. cause Singer v. A. E. Babcock, Rieger, Appellant,
Sherill Louis (2d) 722. Max Brenner. 58 S. W. Banc,
Court en March 1933. *2 Henry Conrad, 8. L. E. Durham and Hale Holds for appellant. *3 Boatright Ringolsky. é Jacobs, I. J. Lowe, Rmgolsky, Frank M. S. re- D. Millma-n for Harry Jacobs and Boatright, L. Wm. G. spondents.
COOLEY, brought by C. This suit was plaintiff against defend- Rieger Singer. Upon ants per- own motion Brenner was party Judgment mitted come as a defendant. was for the de- plaintiff appealed. fendants and building City,
Plaintiff owned Missouri, business Kansas years leased to August Brenner for a term ten beginning agreeing Brenner pay $1000 as rental on the first of each years month in six per $1250 advance the first there- month after, Rieger plus Singer, writing certain taxes. attached to lease, guaranteed payment of such rent and taxes to an $6000. amount not following exceed The lease contained the clause: premises If hereby
“6. shall, let fault without Lessee destroyed damaged or be as partially so to become or un- wholly by providential means, then, tenantable fire or if the Lessor shall writing sixty (60) days delivered Lessee within after such damage destruction, repair, elect rebuild or this lease shall re- main in repair force and Lessor premises shall rebuild or said within election, putting reasonable time after premises good in as damage condition as were at time of destruction or and for- purpose may premises t-hat enter said during rent shall abate premises untenantable; time said are but if Lessor does not elect repair, aforesaid rebuild or then Lessor have possession shall hereby said shall let and Lessee deliver and surrender
534 possession shall and the Lessor such and this lease become void to hereby end; surrender upon delivery and such and term created premises by recovery of said Lessor the being made or the cease, delivery but and sur- ’’ obligation pay to rent shall until obligation recovery pay to rent not cease. render or the shall damaged January 1925, fire which the interior 4, a occurred On “par- rendering it, answer, in building as stated defendants’ of the doing damage Bren- and considerable to tially untenantable” also keeping in possession, of merchandise. Brenner remained stock ner’s building purpose adjusting with insurance in the for the of goods his February. goods, part his the until the latter companies loss on adjustment February completed 26, about the time Brenner ’his On in companies stock to them insurance and turned over his with the writing settlement, in that elected notified Brenner the building and continue lease in force. Prior repair the the January the Feb- giving such notice had demanded and given plaintiff’s agent Brenner had an order for ruary rent and company, which order was honored amount on the insurance the paid 6. paid 9, On March Brenner amount about March and the agent balance rent turned the of the due to that date and keys that agent premises. Defendants 'claim over to said the to the and possession a termination of the lease Brenner surrendered as agent Plaintiff claims that accepted such surrender. the accepted only turning possession made and for was over repairs. Plain- enabling plaintiff necessary make the purpose of repaired building, putting premises as thereupon tiff good fire, period, as abated the rent for the condition before weeks, occupied repairing, so and notified Brenner that about two building repaired ready occupancy for so and -under was occupy recognize, premises or to Brenner refused to lease. longer force. 1925, 8, guar- recover was instituted December This suit amount) $6000, Singer, antors, Rieger being sum of the full they liable; which, guaranty, plain- under their could held $8562.20, alleging substance that Brenner owed him total of tiff inclusive, July January months of being for the and certain rent $2790.34. pay, less a credit The evi- taxes which Brenner was up paid of the rent dence showed that said credit item was made January rent $500 from to March abatement of period petition occupied repairing. Plaintiff’s states two weeks for the jury. at law triable to a cause action purely a. Rieger having general denials, separate filed defendants
After first joint petition” Singer “amended answer and cross filed which, general denial, they substance: averred in Defensive- after signed ly, them without consideration after guaranty that the delivered, been executed and had wherefore bound; lease, alleges it sets out clause never that a oc- fire January 4, damaged curred the leased “partially rendered them untenantable” thereupon *7 by upon its terms became void and terminated surrender of possession lessor, sixty days to the lessor unless the within after the repair, fire elected to in which event he became entitled to enter for should, “in purpose only,” such and the rent such event abate dur- ing un- premises wholly the whole time the “were thus or partialjly tenantable;” that lessor was not entitled to collect rent after the repair give he and not to fire unless intended to of elec- notice do; repair that if to tion so to he intended not he was entitled to days sixty after the fire and at collect rent for the the end of such obligation period by terms would terminate and the the lease its cease; following pay and would that the fire lessee to rent taxes whereby sought “plaintiff plan and method he to de- conceived a defendants,” being plan “rep- he fraud lessee and said that would pretend” repair not intend to and would resent and that he did following and, during sixty day period fire demand the rent the the then, just having same, expiration before the of such collected would the give repair to and seek to continue period, notice of intention entitled collect force, knowing that he was not both to lease in such “scheme to repair; pursuant that to such rent and to elect to February, January rent for and defraud,” plaintiff demanded the garnishment paid, if it was not threatening by attachment and suit and demanding said rents” threaten- “by payment and that so his in- that it was not therefor, plaintiff “pretended ing suit said permit to . . not to do so but repair . and elected tention to ’’ thereof; lessee, that the the terms pursuant void to lease to become suit therefor and and threats of for rent actuated such demand February gave an order believing repair, not to plaintiff had elected rent for pay $2000 companies to said 26, 1925, upon insurance was on said sum February, pursuant which order January to and 9, plaintiff de- about March paid that on or plaintiff; March to $290.34, rent balance of him paid the lessee manded of lessee and following fire” and at that day sixty period said due “for the full and premises agent keys to plaintiff’s time delivered to ac- plaintiff and premises plaintiff possession surrendered and repaired premises surrender; plaintiff then cepted that repairs time from the pay lessee rent thereafter demanded that guaranty, agree that not, their completed; guarantors did that the wholly becoming premises plaintiff right, upon should have the days sixty rent for by fire, collect partially untenantable first time collecting same “for following then after fire and plaintiff and that in force repair” continue the elect and “by permit his actions as herein set forth” elected to lease to “pursuant terminate right to the and waived the terms thereof” repair force; elect to and continue the lease that guaranty by “breached and violated” the terms of the lease and attempting so both to collect said rent and to continue the lease force; “by pretending represent- and that fraudulently so ing” collecting repair demanding that he did not intend to right' guarantors, said rent he had lost the to hold alleged guaranty good “said is conscience entitled allegations be canceled.” Then certain that bear follow which, view rather than at all amount recover disposition case, we shall make of the need not noticed. alleged in Affirmatively, cross-petition answer and the amended contending has not been substance: That that the lease effect; leased terminated and is still in force and voluntary act transferred, are “liable at time to be either *8 law;” “are (guarantors) by operation of that defendants or brought against by plaintiff or them” to have other suits liable subjected liable to interest, his and “are to be some successor to ’’ guaranty; alleged multiplicity said lease and of suits on account of action, prevented “will unless if in this plaintiff, and that defeated by guarantors equity” defendant to harass by a court of continue they taxes; that liable for rent or and claims that are suits attempting to adequate plaintiff “is remedy and that have no at law wrongfully;” wherefore unfairly alleged guaranty and use said void, null and declared and guaranty canceled they pray that the be assigns administrators, be executors and plaintiff, heirs, his and that on based instituting against said defendants enjoined any from suit general relief. guaranty, and arising out of the guaran- cross-petition said and filing said amended answer Upon be transferred the cause moved that tors, only defendants, then the court, which motion of the equity docket from to the the law docket excepting. objections, plaintiff plaintiff’s court sustained over the exceptions, objections and Thereafter and also over in come lessee, permitted to the court Brenner, by and was asked pleading filed a thereupon and he party as defendant cross- answer and amended guarantors’ duplicate of practically a guaranty. both cancellation of asks except that it petition Plaintiff moved essentially the same. allegations are otherwise Its not because for cancellation prayer strike out the up- relief asked it because of action germane plaintiff’s cause in the stated from that action of cause separate and distinct on a motion That issue. collateral case injected into the petition to the replies then filed excepting. Plaintiff overruled, plaintiff was petition amend He did defendants. pleadings of all three any against Upon ask relief Brenner. nor at time the issues by equity, ivas an the case tried court as action in thus framed defendants, recovery judgment denying plaintiff in a resulting equitable granting prayed by relief defendants the them. question presented requiring The first solution is in appel ’ holding guarantors in contention that the court erred ’s lant cross-petition answer and converted the action into amended one transferring equity triable the court and in the cause to the denying jury the cause docket, to have tried to a question is action at law.' This determined from the an 616, pleadings. Neff, 1182, (2d) 30 S. W. Mo. [Ebbs 620.] suggestion necessary respondents’ it is But first consider already The herein appeal this court. was by has been determined granted City opinion K Appeals ansas of wherein an was Court judgment remanding cause. On cer reversing the written - quashed opinion court, being by was this tiorari that decision One, (2d)W. reported 760, in 326 Mo. 32 S. on the Division jurisdiction. Thereupon ground Court of had no Appeals that the (326 opinion In court to this court. this the case certified 761) (2d) l. is an observation sub Mo. S. W. c. there a suit cross-petition converted the action into stance that apply to and equity. was meant to But we think that statement judgment trial and from rendered court characterize the juris determining appeal question been taken, which the had adjudication sufSciency an appeal diction of the rather than as equitable cross-petition cause of action for relief to state a equity. actual hold suit in and thus convert the action into a following, ing l. c. 762: case the certiorari is shown holding that the amount dis- Appeals Court based “The its *9 jurisdiction ground that cross-bill did pute within on the the was its equitable relief. But entitling facts Brenner to not state defendant cause of ac- such a the cross-bill did state trial court held that the very therein. prayed relief tion, judgment the and its awarded judg- a overturning judgment, that purpose it was for of And the The value was taken. cross-bill, appeal the ment based on the that clearly judgment was given by such of relief defendant Brenner the dispute jurisdictional purposes. the amount in not Appeals could de- of “Being jurisdiction the Court without it of action or whether a cross-bill stated cause termine whether the not first it could petition; in germane pleaded was to action the the it whether to determine controversy order the merits of the decide jurisdiction appeal.” had of the request of counsel that said, the response
This court further of Court the if it held it the merits controversy determine the on be done: it could not Appeals jurisdiction, that to have been without questions only . “The of . . reaches of that: writ certiorari jurisdiction. does deal with the be- It not merits controversies litigants. upon judicial proceed- tween the It bodies and their acts “all ings, upon controversies,” not can be private and that that quash quash proceed- under is either to to refuse to the done question ings We think of the complaint of which is made.” the sufficiency the into one and to convert suit the answers cross-bills open. is equity still defendant, in a disputed if suit wherein
It that the equitable law, petition up the a at an de states cause of action sets prays relief for such re fense which entitles him to affirmative and equity. lief, a the case is converted into suit Neither whole instruments, such as can it be the cancellation of doubted that equitable guaranty cog question, lease is a matter of and prayer equitable relief amounts nizance. But a for affirmative nothing alleged As unless the facts such relief. authorize brought in general a where has a written rule suit been setting up legal and the de purely strument demand wherein way complete adequate remedy by fendant has a and of defense juris legal equity will not take available action court of deprive cause to a diction and 1162, jury Re p. 11, p. trial. C. sec. J. sec. [See 12.] general seem to that such is the rule but contend spondents concede they special present that there such that cannot are circumstances adequate at complete obtain in the action and are relief law equitable sought, citing relief therefore entitled to the affirmative (Mo. Valley banc), 252 Begley al. v. Co. al. en Mississippi et Trust et jurisdictions. S. W. cases from other from question standpoint We consider first guarantors at instance alone alone sued and whose who were court. from the law to the docket of the cause transferred alleges grounds three Their answer and cross-bill in substance guaranty viz., (1) they signed non-liability, after the that consideration, where been and without had executed delivered (2) bound; by his the lessor acts and con never fore right- and waived his to elect elected let the terminate duct force, according! to of which it terminated its keep it in because (3) provisions: lessee surrendered pursuant terms of accepted thus, also lessor such surrender provable lease, terminating facts were contract. Those law resort guarantors action at without defense *10 only jurisdiction and if established not equity of the court to the judgment a complete action but to that constituted a defense adjjudicata complete a bar and been res defendants would have said against brought them been any could have further action that assignee claim, the instru- any successor to his by plaintiff or of or non-negotiable being being for the full and the suit sued on ment liability. guarantors’ Clearly did not defendants amount making their' defense equity interposition court need plaintiff’s cause of action. allegations upon defendants seem which The affirmative equitable relief, effect that the leased rely to the for affirmative guarantors and said liable” to be transferred "are subjected plaintiff or succes to further suits "are liable” to be guaranty attempting to use the his ihterest is sor to and more wrongfully” hardly can be said to amount to "unfairly and which to statement of facts than conclusions without the guar given appears it that the from which them. No are base facts if successful with such future harassment are threatened antors pending in the suit. their defense re- Co., supra, cited Valley Trust Begley Mississippi v.
In ques- The appeared. note there in spondents, a different situation according holder, to the illegal inception and the tion was its it to disposition to use petition, and conduct a had shown acts and summing up its conclusions annoy makers. In harass and sought, equitable relief this court holding entitled to the makers - said: institute and . . holder of the note to ". intention of the against parties and harass the dismiss and reinstate suits thereon conjecture, after illegal but is not left whom the note asserted resided, ap the defendants County, suit in Butler where thereon Louis, city St. in the brought suit thereon pears plaintiff another then, after de County. dismissing And the case Butler before and County in Butler filed answer and counterclaim fendants their docket, clerk in vacation for trial on the ordered the case set years to run County. had ten The note suit in Butler to dismiss the Limitations, and by the Statute of before it was barred note at dif suits on said bring and dismiss thus continue to could Louis, city St. whenever County in the in Butler ferent times years. Under such during ten city said would visit that defendant which all of their defense circumstances, the defendants’ evidence disability of wit or absence or parol, through the death rested put greatly inconvenienced might nesses, lost defendants law on said a suit at making defense in disadvantage out their ’’ note. approval apparent with court cited Begley In case this Jones, v. Getman, 102, Cal. Porter Domingo v. quoted from 541, 540, Broadway, 45 Conn. 318, Buxton (Tenn.) Cold. authorities Jurisdiction, section Story’s Equitable also cancel may jurisdiction take that a court indicate *11 begun which at law has to where suit thereon instrument even written defense, ground per- complete on the maker has a suit the may his and the at cannot control the action son sued evidence to defeat later, perhaps it and when pleasure' dismiss on; which bring another, and readily produced, so cannot so be be remedy legal in the action is said not to by reason the defense equity may grant. Respond- adequate which complete and as that jurisdictions. import similar from several other cite cases of ents been with instruments which had if cases cited deal Most not all the negotiable special by else there were procured fraud or which were case, justified interposi- circumstances, Begley which as in the equity. court of tion of a attempt plead an a “fraudulent in there
While this case alleged collect rent which it is on part scheme” continue the lease entitled if he intended to elect to he was not All showing fraud. pleaded do amount to a force the facts months’ rent alleged was demand the plaintiff is to have done two lease. Whether or which to under the he claimed was entitled lease. depends upon not he was so entitled the construction defense, plea guaranty from the Respondents’ real aside signed (which delivery the lease after the had been execution support) that the lease had the evidence did not terminated unnecessary. If cancellation was provisions. virtue of its own so case, pleaded If, can a suit facts in this a defendant convert on the difficult to equity into one in it is at law on a written instrument imagine instrument a in which holder written situation jury deprived a trial not be in like manner of the could arising As Town of Venice Woodruff an action thereon. said 62 N. Y. 467: et al. establishing necessity of “There must exist some circumstances irreparable, prevent injury might which equity, a resort to equity If fact that which to avert. the mere competent alone is to authorize a defence exists to written instrument were sufficient can- application its surrender and equity an cellation, to a court of to decree controversy in claim of every which the it is obvious that writing be drawn to the party was evidenced could either court, provided for the trial of the mode side of and tried in actions, ordinary man- being disposed of in the equitable instead of jury.” ner Begley announce case to court not intend We think the did might dismiss plaintiff could and doctrine that the fact that a bring same cause another on the suit before later submission and the defendant to de-
of action sufficient to entitle would alone be equitable law into the action at one mand relief and convert require equity. holding The facts that case did not and we do not think we should so hold. policies containing
In actions
insurance
an incontestable
by lapse
clause or in
such clause had become
time
absolute
adequate
we have held that the defense at law is
and that
the in
*12
surer
equity by asking
cannot convert
action into a suit in
can
cellation of the contract.
v. Union Central L. Ins.
[Schuermann
Daniel,
641,
Co., 165 Mo.
“The cross-bill and the rest rule the well-known equity jurisprudence, equity will, proper that a court a case, declare a rescission of a contract for a violation of the covenants contained, therein against permit because would be conscience to party one to violate part the contract on his and still hold other party to compliance very different, however, with it. This is from forfeiture, equity such as is when meant it is said a court of does not favor forfeitures nor lend its aid to declare or enforce them. legal pivotal question
“The is, in this case whether the covenants pay covenants, rent dependent and to are for if rebuild are rebuild, the covenant to plaintiffs comply did not with their and the payment relieved from only are not entitled defendants to be relieved but are entitled rent sued for herein the two months’ can- have the lease obligation of the lease and to whole from the ’’ celled. distinguishable from Company case is We think the Lincoln Trust See, support respondents’ contention. the instant case and does not distinguish- Haydon 126, 141, S. W. Railroad, also v. Mo. circuit ing opinion In Nathan, supra. Lincoln Trust our Co. guarantors’ cross-bill con- holding that defendant court erred denying plaintiff and in verted the action into a suit jury trial. con question under
Respondents further contend standpoint of defendant should be determined from the sideration on the Brenner, guarantors even if the were not entitled and that Brenner ivas showing equitable relief made them to affirmative only (1) against guarantors because: so entitled suit than that owed him more $6000, ivhereas claimed Brenner *13 claimed for balance probably have sued Brenner later and would pleadings, under the due, (2) might, instant case be that the to guarantors upon plea in favor their been determined of the have after having signed guaranty never because they were bound question of leaving undetermined the lease, the execution or Regardless AA'hether not lease had terminated. whether or grounds for the exercise cross-petition presents better not Brenner’s guaran equitable jurisdiction in than does that of the his favor came into Brenner their favor Avedisallow this contention. tors in equity ruling transferring case to the case after the court’s He on his motion. made. It was not so transferred docket had been plain over objection. Also A'oluntarily plaintiff’s and over came in inject into the case sought permitted to objection he tiff’s unnecessary thing only lease, a not cancellation of the prayer for Avith they ask and guarantors’ Avhich did not defense but to the might have Although guarantors concern. they had no Brenner did tending fact to show in their defense asserted only liable for, since and taxes sued the rent not owe right party in de as a to come Brenner doubtless had the guarantors, being guarantors, he against the plaintiff’s claim fendant to contest Conrad, 114 v. primarily liable. ultimately and person [Green 294 (Mo. S. App.), al. v. Mills et 839; W. Bondurant 651, 21 S. Mo. up set party to as such was entitled And of course he W. 742.] guarantors. against the plaintiff’s demand Avhatever Avould defeat in permitted think he should we not supra. But do Cases his in action inject an affirmative case into the circumstances against necessary the defense not against plaintiff favor own 543 plaintiff’s suit originally and with which the defendants sued have 703, no concern. Under the statute, Section 1929 Revised Statutes (2 p. 915), Ann. Stat., plaintiff right had the to sue such of parties while, stated, liable as he saw lit. And as above Bren in party ner had to come become a pur defensive inject poses he should not be into an allowed the case affirmative against individual own plaintiff changing action of his the char analogous acter of the suit trial. and the mode of Somewhat Joyce principle Growney, 253, 466, we 154 held Mo. 55 W. S. that a defendant either at up cannot law or in set and in ject plaintiff’s against into the case a cross-action a codefendant not necessary germane to his plaintiff’s defense to the suit. To the Fisher, 116, same effect see Fulton v. 239 143 Mo. S. 438. 130, W. (Mo. In 258 App.), Bert v. Rhodes et al. 40, S. W. three co-owners damages leased land to Bert. Bert sued two of them in the trespass. permitted nature The third was party come in as three, defendant and over the objection, a coun- filed joint existing terclaim favor. their This was held reversible error.
In al., Mathiason v. St. Louis et Mo. S. W. enjoin sued from interfering the defendants with a drain pipe which he had laid from By to a sewer. certain pleaded cross-bill the defendants that the had so conducted pipe his establishment which the drained as to es constitute said alleged tablishment a court held that the facts npisance. germane presented by the cross-bill were not to the issues (l. 202) petition quoted Encyclopedia Pleading c. from Practice, 641, as follows: defendant, filing
“If a cross-bill, attempts ... in- matter, troduce new and distinct proper essential to the de- put litigation bill, original termination the matter al- *14 though perfect against he may complainant show a case either the co-defendants, or or more his pleading one of his will not be a cross- original bill but an bill. And no decree can be rendered on matter.”
We have been furnished nor not have we been able to find an ad- judication directly point precise question on the under considera- tion but think we the conclusion we have harmony reached is in with spirit provisions the of our statutory orderly conducive pro- cedure. may
Since thé case be retried proper it is for us to notice certain necessarily contentions which will be involved on another trial, chief of which is the construction clause of the lease above quoted. provides premises destroyed It that if the be damaged or by “wholly fire untenantable,” so as to partially or the lessor
may sixty days within repair. elect to If he so elect he must does repair within a reasonable time re- after such election and the lease mains in force. In during that event the rent time is to abate the premises the are If “untenantable.” elect lease does not so the upon possession, obligation terminates surrender of the ten- the pay continuing ant to rent until such surrender. pleadings
Defendants’ allege and the evidence showed that the premises by were rendered partially It untenantable the fire. disputed not tenant the continued to use the occupy premises after adjustment the fire until completed he had the settlement companies with the carrying insurance insurance on his goods. premises He purpose needed the for that evi- and there was objected agent dence that he coming to the lessor’s to make re- pairs adjustment until the insurance completed. lessor’s repair notice of election to was served about the time the lessee com- pleted insurance settlement and stipulated within the time the lease. It is conceded that the lessor demanded rent for the time premises occupied by threatening were so fire, the lessee after the by suit, to enforce procured the demand an order for the amount. actually paid The rent was not on that order until after notice repair given. intention perhaps very had been ma- While point may terial to this be stated here that the evidence shows $290.34 paid premises March over, when the was not were turned by agent demanded the lessor or paid his but was volun- offered and tarily by the lessee. ,5
Respondents contend that of the lease the rent terms during period abated premises “partially were untenantable” following fire, though occupy even lessee continued to them for purpose of adjusting insurance; “untenant word provision able” used for abatement of rent means condi rendering premises going tion unsuitable for a mercantile busi ness. It is that construction of the that theiij contention estoppel waiver and Appellant is founded. contends that “wholly use of the partially term in providing untenantable” repair the election to and alternative termination of the the word “untenantable” in fixing period during which rent by way should abate was of intentional distinction and that terms of the lease rent did not abate while the were only partially untenantable and occupied and used the les see, provided course the lessor within the time allowed him elected repair. opinion to and did In our the latter is the correct construc tion. It language is consonant with the used and with the manifest purpose question. of the clause in might damaged The premises be so wholly render them untenantable, in which *15 it event was rea sonably provided that rent should forthwith, abate so that the lessor liability rent during for two months’ not create could sixty by waiting until near the end of the not used premises be could hand, damage On other make his day period to selection. premises continue use the slight that the tenant could might be so calling for no Or being made, abatement of rent. repairs while were might reasonably expected not that the tenant could it be such yet repairs and such that he could occupy full term without for the time, premises desire a limited profitably and would to use the for instance, without the interference he did in this evidence shows repairs. engaged making extensive We think the of workmen pro- and. “untenantable” “partially terms untenantable” and were have designedly were used intended to visions mentioned meanings. show different The facts in this case the reasonableness agent, according of such construction. The lessor’s immediately fire. evidence, repairing lessee after the spoke to about objected The because would interfere with the business of lessee adjusting with appraising loss the insurance com- his stock his panies. immediately after until business the fire and That was his completed prem- to and did occupy that business was he desired they purpose for And purpose. ises for that were tenantable. although they going have untenantable mercantile would been though During premises, partially business. such time the unten- put repair, antable his election to because so as to lessor to agreed, opinion had so our untenantable within were meaning part of the providing that term as used in the abatement of rent.
We Acme have not overlooked the case of Ground Rent Co. (Wis.), 314,W. by respondents, Werner 139 N. cited in which the majority meaning opinion respondents’ sustains contention as to the however, in was, of “untenantable.” There under lease there consideration, “partially untenantable,” no use of the term indicat- distinguish ing untenantability an partial intention to between dissented, judges untenantability. seven Three the court taking substantially expressed. the view we have herein al., Taussig
In 96 Y. Supp. et N. who oc- Beers v. tenant premises adjusting his cupied purpose for the after a insurance premises going fire which rendered the untenantable for a business notwithstanding provision was held liable for rent abating premises rent while the were untenantable. It was held his purpose. were tenantable for then foregoing disposes respondents’ also plain- contention that right tiff repair by collecting January waived elect February If rent. had the to collect rent while partially occupied untenantable but lessee by *16 546 purposes repair still within the time fixed
for his own to elect to by have been no waiver. the lease there could plaintiff estopped lease
It is contended that is to claim that the January in paying because lessee still force the the is February by belief, rent acted in the induced for demand rent, that intended let the lease terminate. In view such of what said above this also fails. Plaintiff made we have contention representations repair. no to the that he did not intend to lessee only Moreover, He rent the demanded the to which was entitled. upon interpretation evidence shows that the lessee in fact acted the demanding by counsel, by of the his own that viz., lease the lessor right the rent in repair effect elected not to and waived the to elect repair. merely thereafter be- opinion There was a difference of legal collecting tween lessor and lessee as to the effect of that rent. estoppel There was no shown. by respondents
It is claimed in their brief that the quali terminated because the written repair notice of election to regard fied and conditional. We are not inclined so notice but attempt shall question to decide or discuss that because in our opinion that presented by pleadings. issue was not Defendants’ answer up liability and cross-bills set why they the reasons denied suggestion and contained no that a sufficient notice election to re pair given, further, had not been contained references to provided the notice impliedly lease which seem to concede given. that such notice had been Plaintiff had not in his petition pleaded giving general of that notice so the denial in defendants’ answer did not make such issue. Moreover, general where a denial by special plea followed setting of confession and up avoidance specifically grounds on which liability the defendant denies general denial is special overcome such plea. Cowell [See Employers’ Indemnity Corporation, Mo. (2d) S. W. 705, and cases cited.]
It is also contended that accepted surrender of the premises thereby terminating the lease. Of if course the lessee sur premises rendered the as a termination of the lease and the ac lessor cepted such surrender such acceptance surrender and terminated lease. disputed question That was a upon which the evidence was conflicting. Plaintiff possession demanded “for the purpose of hav ing repairs said provided restorations made as in lease’’ and claims possession that the surrender of accepted only was made and purpose that understanding. so, If tempo such rary possession surrender of did not terminate the lease. It is true. only gave its terms lessor the to “enter said premises’’ purpose making for the repairs. But if required repairs were of such nature and possession extent purpose parties was deemed for such desirable necessary might why no reason lessor with consent of lessee we see temporary purpose being possession guilty not take for such without or abandonment of contract. think breach Nor do we variation from the letter of the contract constituted an abandonment original change in performance contract or such thereof as guarantors. to release the *17 unnecessary deem arguments
We to discuss other advanced. judgment For the reasons above indicated circuit court is proceeded reversed and the cause remanded to with in accord- with expressed. ance the views herein
PER foregoing opinion CURIAM: —The Cooley, C., in Division adopted opinion Two is as the of the Court en Banc. All concur. Mary ex
State Becker, rel. J. Schulte, William Odenback and Isaac Percival, Relators, W. v. Wellston District Sewer Super Corporation; County, of St. a Public Louis Board district, President; visors said Rubeling, Alexander E. Alex Laumann, ander Rubeling, E. Barnett, M. A. Jess Edward Supervisors Secretary and H. O. Hendricks, of the Board Supervisors. (2d) S. W. 988. Banc, en 1933.
Court March