99 Mo. App. 546 | Mo. Ct. App. | 1903
Plaintiffs were a firm engaged in the business of trading in horses and mules under the name of Robertson Brothers, and the defendants were likewise a firm engaged in the same business under the name of Winslow Brothers. On September 1, 1898, the said firms entered into a co-partnership under the name of Winslow Brothers & Robertson Brothers for the purpose of engaging in the horse and mule trade. At the time said two firms entered into said co-partnership, the former Winslow Brothers held a five years’ lease — three years of which was unexpired — on certain lots on Grand avenue, Kansas City, where they were carrying on their firm business at the time of the -formation of the partnership with the Robertson Brothers. 'The improvements, consisting of a large barn, etc., had
Luring the latter part of the second year of the existence of the consolidation most of the firms engaged in the horse and mule trade on Grand avenue removed to street adjacent to the Kansas Oity Stock Yards, so that most of that trade centered there. The members of the consolidation seeing this, begun to discuss the-propriety of also removing. The Winslow Brothers were willing to remove if they could dispose of their leasehold property then occupied by the consolidation. With this view, several conferences were held by’ the members of the consolidation with the officers of the Stock Yards Horse and Mule Company — a corporation. The result of all which was that the horse and mule-company, for the consideration of seven thousand dollars, purchased of the Winslow Brothers their leasehold on Grand avenue and agreed to erect or cause to-be erected in the vicinity of the stock yards a suitable
After the assignment by Winslow Brothers of their Grand avenue lease and the execution of the ten years ’ lease on the new barn to them, the two firms entered into a supplemental contract to the effect that the said co-partnership theretofore entered into should continue until September 1, 1901, and that Winslow Brothers rent to the said consolidation the stable and offices then occupied by the latter until September 1, 1901, at the same price that the Stock Yards Horse and Mule Company charged the former.
After the consolidated co-partnership had become dissolved under the terms of the contract the Robertson Brothers claimed (1) one-half of the $7,000 received by Winslow Brothers of the horse and mule company on account of the sale of the Grand avenue lease; (2) one-half of the value of the ten years ’ lease of the horse and mule company to Winslow Brothers in the new barn. The Robertson Brothers shortly after the dissolution of the consolidated partnership brought this suit in equity against the Winslow Brothers, the.object of which was to obtain a decree for an accounting between the two partnerships and for the payment to them of the one-half of said alleged $4,000 bonus, and also of one-half of the value of the said ten years ’ lease, etc.
The cause was heard by the court which resulted in a finding and decree adversely to the Robertson Brothers on their claim to one-half of the alleged $4,000 bonus, as well as to that for one-half of the ten years’ lease, but it found that Winslow Brothers sold their lease on the Grand avenue property for one hundred and fifteen dollars per month more than said consolidated partner
It is difficult to see how the court under the evidence could have found and decreed otherwise than it did as to the claim made by Bobertson Brothers in respect to the ownership of one-half of the value of the ten yearsr lease on the new barn, and it is equally as difficult to see why a similar finding and decree was not made as to the claim for any part of the proceeds arising from the sale of the Grand avenue lease. It will be remembered that Winslow Brothers, by the terms of the consolidated co-partnership contract, leased the Grand avenue property to the consolidation for'and during the three years it was to continue, at a rental of $150 per month, and that the latter used said property and paid the stipulated monthly rent until it removed to the barn erected by the horse and mule company. The abandonment of the use and occupancy of the Grand avenue property and the substitution by the consolidation in its stead of the property of the horse and mule company as á place in which to carry on its business was done with the consent, of not only the two firms but with that of the consolidation as well. E.very party to the consolidated co-partnership contract yielded his unqualified assent to the arrangement whereby the change was accomplished. The consolidated co-partnership consented to give up the use of the Grand avenue property and to rent of Winslow Brothers the property leased of the horse and mule company and to occupy the latter property in place of the former.
The law is quite well settled that a surrender is the yielding up of the estate to the landlord so' that the leasehold interest becomes extinct by mutual agreement between the parties. It is either in express words by which the lessee manifests his intention of yielding up
It follows from these considerations that the judgment must be reversed.