31 Mo. App. 185 | Mo. Ct. App. | 1888
Lead Opinion
delivered the opinion of the court.
The plaintiff, by a written lease, demised to one Carroll a lot in the city of St. Louis, for a term of two years and ten months, beginning March 1, 1879, and expiring December 31, 1881, at a rental of four hundred dollars per annum, payable quarterly in advance. The lease contained the following provision :
“ That, in addition to the annual rent aforesaid, the said party of the second part, or his legal representatives, shall pay all assessments and taxes, of every description, nature or kind whatsoever, whether general or special tax, that may be levied on, or claimed from, the said lot of ground and buildings thereon by the state or city authorities, or any other legal authorities, during the term of this lease.”
The lease further provided :
“ It is also understood and agreed, by and between the parties hereto, that any failure on the part of the said James P. Carroll, party of the second part, or his legal representatives, in the payment of the said rent, assessments and taxes, within ten days after the same shall become due and payable, etc., shall make and create a forfeiture of the same.”
‘ ‘ At the expiration of the term of two years and ten months, the said party of the second part agrees, for himself, his heirs and representatives, to deliver up*191 quiet and peaceable possession of said lot of ground and the buildings thereon to said party of the first part, or his legal representatives.”
“ The said James P. Carroll, party of the second part, and all who hold under him, hereby agree to pay double rent for every day that he or any one else in his name shall hold on to the whole, or any part of said lot of ground or buildings thereon, after the expiration oí this lease or,after the forfeiture thereof.”
“All buildings and improvements made or erected on said lot of ground by the party of the second part, .or any one claiming under him, are bound for the payment of all rents, taxes and assessments.”
Immediately after the signature of the parties at the foot of the lease, and indorsed thereon, and bearing the same date, appears the following :
“James P. Carroll has the privilege of a five years ’ extension of his lease after the expiration of the lease this day entered into between him and myself for lot on Broadway, in block No. 606, in the city of St. Louis, for two years and ten months, the rate of rent for the extended term to be hereafter agreed upon between us, however, which shall not be less than the amount now paid by him for the use of said lot.
“ St. Louis, Mo., Jere W. Clemens.
“ March 1, 1879.”
Following this and endorsed upon the lease was a written consent signed and sealed by Clemens, that Carroll might transfer thg lease and the premises therein described to Jonas Isaacs and Jaques Levy, “ subject to all the covenants, stipulations and agreements therein contained.” Following this was a written assignment, signed and sealed by Carroll, of all his right, title and interest in and to the lease and the premises therein described, to Jonas Isaacs and Jaques Levy. Following this is this endorsement, signed and sealed by Jonas Isaacs alone : “ Jonas Isaacs and Jaques Levy hereby promise and agree to comply with all the covenants, stipulations and agreements contained in the within lease.” Next
“ I hereby -consent that Jonas Isaacs and Jaques Levy may transfer the within lease and the premises therein described to Thomas Knox, subject to all the covenants, stipulations and agreements therein contained. In testimony whereof, I have hereunto set my hand and seal this twenty-fourth day of April, A. L., 1883. Jere W. Clemens. [Seal]
“Witness:
“B. M. Clemens.”
Next follows this indorsement.
“For value received, we hereby assign all our right, title, and interest in and to the within lease and the premises therein described, to Thomas Knox. In testimony whereof, we have hereunto set our hands and seals this twenty-fourth day of April, A. D. 1883.
“Jacques Levy, (Seal)
“ Jonas Isaacs. (Seal)
“Witness:
“ B. M. Clemens.”
Next thereafter follows this indorsement:
“I hereby promise and agree to comply with all the-covenants, stipulations and agreements contained in the within lease. In testimony whereof, I have hereunto-set my hand and seal this twenty-fourth day of April,. 1883. Thomas Knox. (Seal)
“Witness:
“B. M. Clemens.”
The lease, and also the various endorsements above-displayed, were executed in duplicate, one copy being retained by the plaintiff, and the other copy being delivered to the defendant by his assignor. Under the lease, Carroll first took possession and held until his assignment to" Isaacs and Levy ;• they then took possession and held until their assignment to this defendant Knox; he then took possession and held until the end of the renewal term of five years. Each of the tenants paid rent, according to the stipulations of the lease, at-
The answer was, first, a general denial, and next the following special defence and counter-claim:
“ And for further answer to plaintiff’s petition, this, defendant avers that said plaintiff Jere W. Clemens, on or about the twenty-fourth day of April, 1883, falsely, fraudulently, and with the intention to deceive this plaintiff, knowing at said time the facts he represented not to be true, represented that the lease originally entered into between Jas. P. Carroll and himself, and referred to in his petition, was, by an agreement between himself and Messrs. Isaacs & Levy, renewed on the first of January, 1882, and the rent for said extension, to-wit, for five years, agreed upon and between the said Isaacs & Levy to be four hundred dollars per annum, payable in quarterly instalments, one hundred dollars each quarter ; that this defendant thought and believed that said representations so made by the said plaintiff were true at the time, and was thereby induced to pay, and did pay, to Messrs. Isaacs & Levy the sum of six hundred dollars, for their interest in and to said lease and the lands and improvements erected by said Carroll and Isaacs & Levy on said lands and premises; that after-wards, to-wit, on or about October, 1883, and at several*194 other times in the years A. D. 1884, 1885, and 1886, the said defendant notified this plaintiff, by and through his duly authorized agents, August Bergman &- Cornet, that he never had consented to the extension of said lease so originally given to P. Carroll, and assigned by Carroll to Isaacs & Levy, and by them pretended to be assigned to this defendant with plaintiff’s consent, and had never agreed with said Isaacs & Levy as to the rate of rent for said premises, for an extension, and that consequently this defendant Knox was entirely at the mercy of said plaintiff as to the possession of said premises and ownership of the improvements placed on said premises by the said P. Carroll and Isaacs & Levy, which are of the value of one thousand dollars; that, upon inquiry from said Isaacs & Levy, and their examination and the examination of the pretended lease assigned to this defendant by them, and upon the statements of said duly authorized agents * * * the plaintiff found were true, and consented with and agreed with the said plaintiff that he had no lease on said premises, but was subject to the pleasure and at the mercy of the said plaintiff as to the time he might occupy said premises and improvements; that the said defendant was told by said duly authorized agent that the plaintiff would execute a lease to said premises to this defendant for a term of five years from said years 1884, 1885, and 1886, at these times, being the times at which the defendant was notified by the plaintiff through his duly authorized agents that he had no lease, and solicited to enter into a lease with the plaintiff for said premises by them for a term of five years ; that this defendant consented and agreed in the years 1884, 1885, and 1886; that the plaintiff executed a lease for five years and presented it to defendant to sign, but said lease was not as agreed upon, but was for five years, from first day of January, 1882; that this defendant refused to sign said lease thus running from the first day of January, 1882, for five years; that plaintiff kept up a negotiation through' said duly authorized agents for a lease with*195 said defendant for said premises until the first of January, 1887, when he at once appropriated the improvements on said premises put there by said P. Carroll and said Isaacs & Levy to himself, and thus preven ted the said defendant from removing the same, which he would have had done if the lease had been in existence, as claimed by plaintiff in his petition; that said improvements were of the value of one thousand dollars.”
I. The plaintiff demurred to this part of the answer, assigning as a reason that it did not set forth facts constituting a legal defence to the cause of action set forth, in the petition. The court sustained this demurrer. The defendant declined to amend, but stood upon the matters set up in his answer, and then went to trial before a jury upon the issue made by the petition and his general denial. The first assignment of error is the sustaining of this demurrer. We are of opinion that this 'was not error of which the defendant can now complain. The question must be judged by the whole record, and this shows without controversy that the defendant had a copy of the lease at the time he entered into possession, and knew as well as the plaintiff •did whether it had been renewed for five years. He dealt with the plaintiff and with Isaacs & Levy at arm’s length, and if the plaintiff misrepresented to him something which he had under his very eyes, it is not a fraudulent misrepresentation of which the law will take cognizance. As the whole matter contained in this special defence is built upon the superstructure that the plaintiff fraudulently induced the defendant to pay Isaacs & Levy for their improvements, by making him believe that the lease was renewed for five years, and then appropriated the improvements at the end of the term—the basis of fraudulent representation failing, the whole defence fails. ■ If the defendant had confessed the cause of action and stood upon this defence, its goodness would be judged alone by the facts therein stated, but, having gone to trial upon the issue made by his general denial of the petition, and having appealed from the
II. The argument that, because this agreement for a renewal was endorsed upon the lease by the lessor in the form of a privilege to the lessee at a rate of rent thereafter to be agreed upon, and that, as no further contract in writing was made between the defendant or his assignors and the plaintiff fixing the amount of rent, there was no renewal, is untenable ; because the uncontradicted evidence shows that after the original term had expired and the renewal term had commenced, the lease was assigned by the assignee of the original lessees to the defendant; with the written consent of the lessor, subject to its conditions, which conditions the defendant agreed to abide by and comply with. This in law was tantamount to an agreement on the part of the plaintiff that the defendant should have the premises for the residue of the term at the same rental fixed in the original lease, subject to the same covenants in regard to the payment of general and special taxes, and to an acceptance of this agreement' by the defendant.
III. As there was no dispute about the essential facts, that the defendant had entered into this agreement and had enjoyed the full benefit of the unexpired
IV. Did the court direct the proper verdict upon the undisputed facts disclosed by the record ? The renewed term of five years expired on the thirty-first day of December, 1886. Were the general taxes for the year 1886 “levied on or claimed from the said lot of ground ’ ’ prior to that date ? The date at which general taxes become payable is fixed by public law, of which taxpayers must take notice. When general taxes become payable they are, in our opinion, levied upon or claimed from the land against which they are assessed, within the meaning of a covenant in a lease such as the one under consideration. It was, therefore, the duty of the defendant to pay the general taxes for 1886, in compliance with his -written agreement endorsed upon the lease, “to comply with the covenants, stipulations and agreements, contained therein.” Strohmeyer v. Zeppenfeld, 28 Mo. App. 268.
The evidence in this case shows that the special tax bill for reconstructing the adjoining street with granite pavement was issued to the contractor and dated December 18, 1886, but thirteen days before the expiration of the renewed term. By section twenty-five of
The judgment is affirmed. It is so ordered.
Rehearing
delivered an opinion on motion for rehearing.
The defendant claims that the opinion of the court is in conflict with the decision in the case of State v. Finn, 19 Mo. App. 560. Although that case was not cited in the brief of counsel, its bearing upon the present case was examined before the opinion was written. In that case the defendant pleaded the general issue and statute of limitations, and the court erroneously sustained a demurrer to the plea of the statute. As it is well settled in this state that the statute of limitations must be specifically pleaded to be available as a defence the defendant by the erroneous action of the court lost the benefit of a well-pleaded defence. Hunter v. Hunter, 50 Mo. 445. In the present case the special
There is no merit in the motion and it. must be overruled.
