*1 n who charge its service robber while he shot down fifth presentation for the' error poor premises station'presents brief. in defendant’s made judgment conclusions, foregoing premises and Based sustaining finding made of facts and award circuit court Compensation in this case is affirmed. Commission by Workmen’s All concur. Appel Respondent, al., Sam et v.
Home Trust (2d) 717. W. lants. 64 S. City Appeals. November Court of
Kansas *3 Boatright BingolsJcy, respond- <& Daniel Jacobs and Millman 8. ent.
B. Achtenberg Pugh M. Trusty appellant. and & REYNOLDS, plaintiff, Company, respondent C. The Home Trust herein, banking corporation engaged City, is a at Kansas business February, 1924, quarters. Missouri. find In it business desired to new Rieger time, Rieger At president, Alexander was its Nathan its treasurer, vice-president, Gus A. Sievers its its sec- and Sam Wedlan retary. 1117-1119 quarters, building For new it selected these the City, Missouri, negotiations Walnut street, began Kansas and at once Realty time, appears for the same. At such it Columbia Company, corporation, unexpired was the owner of the term of a ninety-nine year lease thereon and had same to the de- subleased the beginning corporation, fendant Childs for a term March 1920, 1, expiring February 28, 1940. The building, except leases sublet each the floors in different said basement, terms, first floor different various tenants for Among possession each of whom was of the floor leased him. these Shapiro, possession floor subtenants the defendant second building 23, 1922, a written for a term under lease of date 31, conducting expiring July 1930, where was business a wholesale goods. ready-to-wear A clause in which he ladies’ the lease under provided might held that the lessor terminate same at time should make maturity dispose before of its leasehold or should building tenant, upon giving one lease for the entire bona-fide written lessee six months’ notice and the further condition thirty-five sum dollars paying the lessee the hundred delivery of the premises under said clause, should said termi- lease be nated August between 1, 1924, July 31, 1927. purpose For the of acquiring said building through the merger and ownership of the outstanding leases thereon, entered negotiations into with the Columbia Realty Company, hereinafter Realty called Com- pany for convenience, and caused company said procure the sur- render assignment to it unexpired of its leasehold on building, reserving to respective subtenants their rights under respective their subcontracts, which ac- surrender was complished through written instrument executed the Realty February under date of 28, 1924, to become April 1, effective appears It also Realty Company acquired by assignment from Childs Company the various leases the subtenants in said building, including the lease with defend- Shapiro. ant time, plaintiff theAt same purchased from the then owners thereof the outstanding entire issued and shares stock in assigned and caused same trans- Sievers, Wedlan, Rieger, ferred to Gus A. Sam and Nathan certain officers, benefit; subsequently thereto, May 31, its for its plaintiff by assignment un- transferred to year ninety-nine it and expired term of the lease held dissolved corporation. aas Realty Com- acquisition plaintiff of stock
Upon the plaintiff’s officers indicated, appears pany as hereinbefore Com- acted as officers of holding became and said stock became affairs. Gus A. Sievers managed its pany conducted It secretary. its seems to have Sam Wedlan president and executing entity plaintiff’s convenience separate as a continued *4 building thereon and dominant lease plan acquiring said the its satisfactorily and had been worked out plan said all details of the until merger ownership of said leases building and and the deal for said the stock- sole said officers its was dissolved accomplished when it holders. plaintiff, the the and desire of intention It was the further it Realty Company, the surrender to stock the the of acquisition of year ninety-nine merger the lease, its with Childs-Company the of various leases of the subtenants the lease, assignment to it of and the Realty through possession immediate the 1924, February, to obtain in building which it said basement of first floor and Company the of and improved occupancy its own remodeled desired remodeled, at time to have the same therewith and in connection also building at an of said estimated the remainder improved altered, specifica- ($80,000). Plans and dollars thousand eighty of about cost being provisions There no an therefor. prepared had been tions objected contract, Shapiro defendant in his purpose entry for such interruption and interference with the necessary the account of operation his of business that would follow and refused to consent being work A done. number of conferences were had with Realty same result, whereupon determined to have con- advantage take of clause in lease termination delay possession premises tract and obtain of the for it with as little Shapiro possible, might proceed that it plan. so advised its It required doing of its intention and fact in it be of the so would thirty-five pay to advance and sum of hundred dollars to become during the Company, thereupon, him in The Realty due such event. written part March, 1924, with a latter of caused to be served Company, reciting fact his lease notice from the Childs hereby continuing as are the Childs follows: “You hereby said undersigned do terminate and cancel the notified that the 1, you in paid October 1924. The amount specified lease on be ’’ you paid will on such cash. event of said termination date disposed further that the' Childs The notice recited had building give pos- and that was to its leasehold estate the entire Realty <m endorsed March 1924. The also session arrangement with Realty an Company had approval thereon. The giving notice, Company, in consideration of said liability giving any from incurred reason of harmless hold it $3,500 from same, it harmless hold the event the termination paid defendant provided to be contract; clause in said and under his lease under the termination deposited in de- escrow with the arrangement, it caused to banking corporation Kansas Company, Trust Commerce fendant Com- for convenience Commerce Missouri, hereinafter called City, check, same $3500 in the form of treasurer’s the sum pany, with the under- being accepted the defendant paid to be defendant standing not event consent of both the except upon written understanding It both assented. does to which way the defendant appear the record arrangement. to said party termination, defendant notice of Upon the service lease; negotiations his possession under continued n day Realty Company and him on the ninth between the into was entered between the May, 1924, a written party and him as of the second part first party of the Company as stating that, “in consideration of reciting part, provisions accruing virtue of the other each to the benefits mutual *5 paid,” the other hand it each to one dollar and of hereof description Then followed of cer- forth. set as agreed thereinafter premises and improvements and alterations tain first according by party part to might made agreed be it was agreements and further identified specifications plans and certain the use party’s of second floor space, if found necessary making- such improvements, and for the removal of party’s second property therefrom, if desired, and for temporary suspension of elevator might service as necessary. agreed It was also that there should be no abatement or payable diminution of rent defendant during period and concluded with following: agreement “This does not constitute any modification, alteration, change, enlargement diminution or lease, of the said sec- executed party ond and assigned and covering party, to first said second floor of said premises, but said lease shall and remain in full and force provisions effect as all agreements, and except provision on page 2 of said as lease to termination under certain conditions, is hereby cancelled said and struck out of lease.” Eieger, Nathan plaintiff, upon witness for testified trial negotiations leading up had with execution May 9; following quote and we testi-
mony :
“Q. say? A. you? What did Did came he come to see He withdrawing down and putting wanted to talk about and notice this was before. lease back to the same effect as it “Q. you you,said Tell what he what to him about said to and money on. withdrawing notice, anything, and about the and so given, about we A. we talked to Before the notice was him money in up put have give him we would have to notice and given, notice came, time and after this pay order to when the with- remaining in there to us about he came down talked -as effect lease back to the same drawing putting the notice suggested that he talk about was. When we started to originally put agreement, up paper draw attorney our that we have might we was, withdraw whatever notice back same effect.it premises.” . already to vacate the given him have ‘‘ May 9, Q. prior after he received Now .notice you him, several or did only with you one conversation did hav.e ? things way they were putting back the him, about conversations more/talking back and times or dozen No, went a half A. on forth. understanding “Q. you finally come some Did improvements? go letting you in there make the signed. drafted was an Yes, 9th there A. drafting it, you did come to the actual “Q. prior I mean Yes, A. to have with him? he asked me understanding oral some go put the lease to work attorneys, so we could by our it drawn . n . . was.” as it back Commerce Trust know that this “Q. Mr. Did it? anything Did to him about you state money? your *6 re- original negotiations, asked him our In the we to consent to
A. modeling consent, I if we would building, and told him he did not naturally give notice, him the we have to ask Childs money buy going this lease. put up, would have to this we were “Q. cancella- Now date service of the notice of between the conversation, May 9, 1924, any and the date of tion the contract of knowing anything you say with Mr. that had did he about money bank, your your money in tell him it was you was and did anything bank? was said that? What about Trusty: Objected being purposely intentionally “(Mr. anything that was leading suggestive. State said The Court: Objection sustained.) about that.
“Q.'- anything A. I think there was What was said? don’t all, con- $3500. I remember at about The notice, this after March notice—that occurred before about the this versation my recollection” . . . ‘‘ personally, mean, I Q. only him, yourself you The told time you notice company going put up $3500 was before served your before, Iway ? I answer answered A. would 1'iketo to terminate try— I and will
“Q. A. lease. yes Answer no—to terminate the (interrupting) say I was served.” that talk came around the time this notice cross-examination as to the result
The further testified on witness quote agreement of accomplished by May written We testimony following: by Mr. “Q. 9, 1924, Moe agreement prepared May This Friedman, A. Yes, it? sir. wasn’t arrangements
“Q. you talked him about all the After with Shapiro ? A. It embodied you trying make Sam with thoughts Mr. and ourselves. “Q. gave Friedman? A. Yes. you And them to Moe 9, “Q. product, this And is the finished A. Yes. It was 1924, you after talked to him? that he out turned things we did. request in that Shapiro’s put Mr. that we ‘‘ 9, 1924,. Q. signed, by Shapiro, May Sam on And when that Yes.” negotiations? product of these A. it was finished testified; negotiations, Rieger Alexander also With reference to testimony: quote following from his and we yourself? negotiations “Q. you anything with 'Did' to do have No, sir. A.
“Q. Shapiro, Mr. either with you have conversation Did ever would you told him that if he May 9, in which prior to or after $3500? May 9, 1924, that he receive sign Trusty: leading suggestive. Objected “(Mr. question.) change form of Objection.sustained, Court: “Q. you Did ever have conversation Mr. about I $3500? A. have not.
“Q. say And especially reference to date or four three prior May 9, 1924, weeks date, you did sir., A. No, conversation?
“Q. you A. any $5000? Did have conversation with him about No, I any $5000. never him had conversation with about
“Q. any- you paying Did him ever conversation about have thing? A. I did not.” Wedlan, secretary vice-president
Sam knowledge involved being inquired of matters Company, as to his quote thereto; we negotiations, with testified reference following upon from his the trial: testimony “Q. put up in the Commerce you $3500 recall some Do that Yes, A. Company? sir. Trust
“Q. about you that, your what recollection What know about do $3500, Trust being up with the Commerce put —did it, anything know about you anything have to do with handle or Shapiro and told him we Yes, it? I Mr. served notice on A. . . . deposit. Trust on placed $3500 with ‘‘ put you him the bank had Q. and told At time served this up, come Company, did that up with Commerce Trust how say what you him and did was said about that —what and what merely very simple A. handed say you? he It was did —I with Com- deposit this him, him we had made and told notice to Company. merce Trust No, I anything? A. that remember.
‘‘Q. say Did he May en- 9, 1924, contract was “Q. you recall Well do A. lease? he continued his whereby Shapiro, Mr. into with tered Yes, sir. this you the time served ‘‘Q. Mr. between you Did see May 9th was contract of time and the cancellation
notice of IA. did. made? IYes, talked him? A. “Q. with conversation you Did quite frequently. himto cancellation, or anything ”Q. said about any conversation In No, A. sir.” not? $3500 or money, the cause; deposition gave his in this Rieger also The witness Nathan upon the testimony therein read his following from quote we trial: agreement contract or during negotiations this ”Q. your Well, thing A. I don’t think mentioned? $3500 ever 9th, was this original thing only was that the $3500. about was ever said notice was, and the cancellation that it same go back the was to lease taken back and was to be cancellation notice of the be—the towas before, was to ex-
lease continue on tbe same basis as one with the ception provision during for cancellation the term was stricken . . . out.
“Q. you right Did ever discuss him with his under his contract I Company? or lease with the think I dis- A.. don’t ever all, cussed with him I recall.
“Q. subsequent Or his under that to the notice him? I I vacate was served recall that ever A. don’t (cid:127) talked to him about the at all.” The defendant testified the trial reference thirty-five fre- hundred that such sum was dollars to effect quently Riegers negotia- during between him and mentioned May 9, always get tions for the contract of end that he get it; Rieger it and he never that was not to that Nathan advised thereto would not be affected such contract and that signed understanding; Riegers he were anxious urged improvements frequently to enter and make desired and getting as he was *8 should improvements; allow them to enter and make the he asked $5000 an possession them additional sum of for immediate but that give it, stating get they refused to he was to Company Rieger upon and Nathan one him occasion effect told any expense law he he was a suit at to collect the subsequent May 9 might help him; that to he asked released to be Rieger agreed of his contract and him if he release to release would consent; $3500, claim to the which he failed to to that he made money deposited no demand for the with the Commerce nothing deposit looking because he knew about the and he was to money. possession the Childs for the He remained in 1 premises Realty Company after October under his lease with the assigned same, receiving in the fall when sold and until late assignee his therefor. the sum of It is disclosed the record that the sum with the Commerce Com- subject Shapiro’s only pany was not order and that it could Realty Company written both the paid upon him consent of Company. made demand the Childs He no of the Commerce deposit it he was notified it in December that until it, made with and the Commerce at the same time agree Realty Company. release asked to the same to the through attorneys, He, then, made demand of the Com- it, proved fruitless. pany for which demand the record that is further disclosed It day thirty-first May, corporation dissolved as a while in escrow with the Commerce $3500 was still stating that it had no were resolution assets and that there adopted by anyone against outstanding obligations held it. no such, Tbe acquired claims to have rights Realty- as the Company had $3500. The made no effort to take down deposit until in the fall when in year December of that appears there was cor- respondence between it and the Commerce Company concerning it. Rieger The witness Nathan further testified mat- with reference to ters the trial which giving induced terminating of the notice Shapiro’s lease and which light throw some the consideration for the quote contract of following We from his testi- mony: ‘‘Q. Now, Mr. Rieger, get I 'will you to state at the time of the acquisition of the stock Columbia Company, if was the intention or desire of the Home Trust to remodel and improve building alter and you acquire going were banking purposes? object buying A. of our this stock of the building Columbia occupy for our own use, basement, that is the floor and first and in order to make it tenant- us, remodeling, we had able to do considerable and while we doing bank, remodeling entire it for the we wanted to do the way system, building, improved service, sprinkler elevator enlarge building lobby, improvements make building for tenants as well as for our own use. better the "Q. pur- you plans specifications up have drawn for that Did Greenebaum, plans pose? A. Schumacher and drew Hardy effect.
“Q. you time, did interviews with the At about the-same agreeable building, see if that would be tenants various tenant, A. and told them what we wanted them? We went to each to make it more tenantable. do, we would like to do order what n ‘‘ Q. ? A. All get consent all the but you tenants Did *9 Shapiro. Mr.
“Q. Shapiro’s attitude? A. -He want us What was didn’t Mr-. service, elevator improving, he didn’t want to without do the to intending elevator, put a better he didn’t want although to we-were ' anything at all. to consent to ‘‘Q. you Mr. Rieger, when discovered that would Now, Mr. you improvements, or proposed alterations did these to not consent lease, knowledge information to the conditions of his acquire any buying property ? A. Before this to do you had and what leases, buying their we wanted to know Company, before from Childs tenants, looking them the other and the lease as to of the condition lease, during we, in the so our provision this over, we found conversations, him if him, had and we told several negotiations with doing work, our the we would have to give not consent he is,. according Company, the lease with to notice, give put money up bim would have to neces- notice, that we and give bo Oi -a
sary cancel tlie lease. found to Those conversations went on until we get this alterations, we could not we consent for so asked given.” notice be Realty
Thereafter, given, was notice of termination and deposited Company the sum of the Commerce indemnify Company. further testified: the Childs The witness ”Q. 9, Mr. signed May 1924, After was of did this you A. you $3500? Sam ever around to and ask come No, sir.
“Q. your knowledge, go Trust he, Did ever the Commerce get ? try A. Not after went over until we it. there to ask them to return ‘‘Q. you get Tell check and the court when went to the treasurer’s originally put funds, ar- up what A. we occurred. When we ranged asked with the officials Trust personal cheek, which than a them to hold the was no more or less bank; during check and the funds not leave all the time did so I remodeling* building, desk my we were this tickler on check, 1924, I Sam pick up part and in latter asked go letter, did, I which I Wedlan over or write a don’t recall cheek, and went to ask them to return this he over there or wrote was letter, we and that would the time—the first time knew there 'any litigation any complaint were receive check that we not to back. ' ‘Q. you happen pick How the check before that up did did not anything, ? not were because date A. There no reason—we out I being held, only just and that is about the reason the check say anything at all.” can out —we May 9, proceeded Pursuant said contract alterations, improvements upon repairs, make to remodel and building. Shapiro’s place The interference business making of consequent disturbing effect his business doing work as evi- improvements and the of said shown part, Shapiro’s dence constituted substantial consideration on prior while entry to the termination his lease permitting required pay rent. still failing paid the sum October. Shapiro,
Defendant to be on lease, or there- 1, the termination of the date day after, party, the sixteenth Company or other the Childs Jack- filed in the Circuit Court of January, plaintiff, suit Company, Independence against the Childs the Com- County son trial, thereafter, upon and the merce Company sum judgment recovered *10 trial dismissed as defendants having prior to the other $4281.08’, judgment by Childs the defendant Upon appeal from said therein. court, judgment to this Company upon was affirmed remittitur of $109.08 $4172. tbe sum of
Following judgment by court, this suit affirmance of said City, County Kansas the Circuit of Jackson at was filed Court against Missouri, by Shapiro, the Commerce the said 8, Company 1929, June as defendants on the Childs from enjoin permanently to the defendant it seeks which suit against by him judgment collecting assigning so obtained the said Independence at circuit court Company Childs the defendant Company and enjoin defendants and to it further seeks him by same to which making payment of alleged of contract damages breach him for judgment against against himby judgment recovered equalling the said a sum and to added and costs with interest Independence Independ- set off plaintiff, judgment, obtained judgment. ence June, day 1929,
On the nineteenth of an amended filed petition proceeded grounds which it later trial. of ' fully appear petition, action from the same. In such amended alleged original lease from the defendant Childs Company to Shapiro, given defendant of that notice thereof was termination writing pursuant 1, ternis of said lease effective October 1924, thirty-five provided hundred in said dollars lease paid Shapiro paid such termination him in cash date; allegations, may on said further it made be sum- marized as follows: receipt
“That after lease, of the notice of termination of importuned Realty Company Columbia his lease reinstate cancel and withdraw the notice termination. agreed
“That between Columbia and Sha- piro cancelled, notice of cancellation should be and was aban- pursuant doned and withdrawn and can- to such' termination, cellation and withdrawal the notice Columbia Shapiro later, May 9, entered into written whereby they agreed original lease should be rein- remajn effect, except stated and in full continued and force and provision for termination the future be stricken should out. ‘‘ agreed That Columbia Realty had with Childs money required pay paid all sums of to be save Com- and to pany harmless from of same on account the termination $3,500 end, and, deposited Shapiro’s to that had with Com- Company; Trust merce was informed knew that obligated so Columbia itself knew that the $3,500 deposited money Realty Company. Columbia having knowledge he obtained the consent Columbia
“That the notice of termination and to rein- Realty Company to withdraw *11 Realty lease, believing, knowing Ms Mmself and that Columbia state Company believed, the no- understood and that such withdrawal of lease, tice of termination and such reinstatement of $3,500 Shapiro was terminated have had would otherwise to collect and ended. Realty
“That, legal effect, Shapiro agreed Columbia to save Company with Childs prior agreement harmless- on account of its Company. ‘‘ bring notwithstanding agreement Shapiro proceeded That against Company Childs in which he first Columbia suit made Realty Company as to it and defendant but afterwards dismissed $3,500 judgment against Company Childs eventually recovered agreed liability previously being account of the same which he had on Company with that Columbia would Columbia pay, threatening and sue out execution not need to that he against Company. liabilities, assets, Company Home has succeeded to “That Trust all rights obligations Realty Company. and of Columbia insolvent; judgment' against him money
“That that a paid judgment against collectible; if Childs is not that over money in. the turned it or Commerce Trust remedy insolvency Shapiro, Shapiro, on account might against Shapiro would recourse Home Trust have insolvency. be lost reason of such representa- on and
“That account of the termination tions of to the effect that the notice of cancelled, withdrawn, Shapiro estopped and and abandoned judgment to assert that is entitled to collect he recovered against beneficial-interest or entitled to the judgment.
“That Home Trust Columbia them; that damaged by Shapiro’s the breach of damage judgment, interest equal amount of is an amount Childs; against judgment him in costs recovered his suit Trust Com- for such amount should be rendered favor of Home against judgments off, pany, one upon.its rendition, the two set the other. . ... re- pending hearing, final prayer petition of-the was. that “The against injunction straining temporary should be issued order and Childs; final collecting judgment against hearing, judgment in favor of be rendered should .agree- Shapiro’s damages on of the breach of sustained account against judgment judgment thus rendered off ment and the set Shapiro against Childs.” in favor of rendered petition prayer of the amended It was also asked injunction permanent. temporary be made petition, To this amended Sbapiro tbe defendant a demurrer filed and, upon said being overruled, demurrer be filed an amended answer January 7, In answer, tbe amended be admits certain al- legations of tbe petition pleads amended all others denies complaints tbe matters up petition set tbe amended fully adjudicated in tbe trial bis ease
tbe County Circuit Independence Court of Jackson tbe *12 plaintiff is estopped thereby its from claims herein. answer,
To this plaintiff reply, making general amended denial filed making and reply Sbapiro further to tbe effect that was es- thereto topped adjudicate, to make tbe defense of res as set out in amend- by reply which, ed answer of appear reason made in matters tbe if requires, fully will occasion hereinafter be more set out.. January 7, 1931, Trusty, Pugh, Acbtenberg,-
On S. L. L. E. B. M. Rosenberg and Pbineas intervening petition filed an answer and in they alleged by which an Sbapiro defendant they attorneys Sbapiro were receive for their as services for said against one-half the himby amount recovered in suit tbe Childs bis Independence alleged that, and further reason of said performance agreed contract and tbe upon, they tbe services bad a judgment subject fixed interest in said which was not claim plaintiff persons tbe companies prayed or other and for relief consistent with tbe in facts set such answer. forth . January 7, 1931,' plaintiff intervening On peti- filed answer to tbe denying up and, reference, tion tbe set therein reas- allegations petition alleged serted a tbe defense and thereto might rights, any, that such if have in said that said interveners judgment equities subject rights, plain- claims, were the and tiff. filing answer, plaintiff
On same also filed the date with the the grounds intervening petition a answer and the motion to strike the on allegations wholly state such answer were insufficient to the against plaintiff’s a claims cause of action or defense and judgment subject fights have, in they might any, said reason, rights equities and, plaintiff’s further and suit. parties were not interveners 8, 1929, filed, original
On June petition the date that the was restraining requiring order issued defendants to show cause on injunction issue. On 18, 1929, why temporary June should not demurrer, 18, 1929, Shapiro’s overruling June on the of defendant restraining in force until the further orders order continued 7, having 1931, On defendant filed a of the court. June order, restraining and dissolve the same was overruled motion to day injunction to issue. On the seventh temporary was ordered injunc- 1931, temporary June, filed a motion to dissolve defendant was no grounds alleged to the effect that there tion on various therein to the re- equity plaintiff’s bill and that not entitled de- alleged plaintiff’s petition sought, facts lief adversely been decided had amended answer Shapiro’s fendant judgment case of in the herein plaintiff’s contention on the Independence court at circuit against having judgment December, 1927, said day thirteenth having be- Appeals Kansas Court City affirmed case, plaintiff is binding upon this final come asserting findings judgment therein from estopped case claiming prayed ,went relief action. facts and Shapiro’s amended defendant petition, plaintiff’s amended trial to dissolve thereto, defendant’s motion answer, reply plaintiff’s of S. intervening petition answer and injunction, temporary Rosenberg, Achtenberg, M. and Phineas Trusty, Pugh, B. L. E. L. same; and on motion to strike the thereto and plaintiff’s answer Childs Com- court, finding January 1932, defendant summons, dismissed ordered the cause been served pany plaintiff and the issues for the found the Childs as to rendered judgment all defendants and ordered other *13 plaintiff nothing by pleading, their interveners take plaintiff, the for $5208.10, in Shapiro the sum judgment against defendant judgment in favor of against the rendered judgment off be set thereby judgments be against Company, Childs both the collecting assigning enjoined from or or fully satisfied, Shapiro be against by the judgment recovered attempting the to collect Company or Commerce Company from the Childs the Childs over and Company turn plaintiff, or the and defendant heretofore thirty-five hundred dollars plaintiff amount of pay to the by Company. deposited Realty the with it There is much evidence in the record trial, upon introduced including the in record case of v. Childs Company and the briefs of respective attorneys and the opinion former of this court therein addition to out, that hereinbefore set which will be referred to or set out in the course of opinion may herein necessary be for a full understanding of this case. After unsuccessful motions for judgment new trial and in arrest of by the defendant and interveners S. L. Trusty al., et this appeal prosecuted is by them to this court. OPINION. plaintiff’s The damages action is for for alleged an breach of contract made defendant Shapiro Company, in which action, judgment addition to for damages, equitable relief sought by way is temporary injunction permanent off, and set on account Shapiro’s insolvency. plaintiff The claims to have ac- quired all the Realty Company the assets of and to have become liable obligations for its thereof, and claims that, further in consequence it has bring- this action. assign The defendants errors, among they numerous which chal- lenge the action finding of the trial court the issues for the rendering judgment grounds for on the that petition equity fails to state cause of at law in and that action or pleadings judgment. nor support there are neither evidence to is that relied It fundamental the contract the breach thereof upon petition trial, and, upon must be clearly stated there must be evidence existence the contract substantial judgment alleged justify stated and breach in its order to plaintiff. question states facts sufficient plaintiff’s petition whether eqhitable equity of action in law which to state cause or base questions may held until is appeal relief and other sup- there is no evidence determined whether the contention that damages made; for, if contention judgment is port the well fail, regardless of must plaintiff, be determined case questions such other or their determination. sought alleged which petition, alleged
The contract to be substantially effect alleged breached, to the to have 1924, between May 9, consideration of and agreed lease be- original him and the he described, therein property him and the Childs tween cancella- notice which had been terminated Shapiro from the there had become due tion reason whereof reinstated, thereunder, con- the sum of should provisions tinued, effect, except remain in full force stricken for the future and for termination should be out waived prior should be cancelled and notice of termination be- Company which said sum of liability therefor the aforesaid, him as come liable to *14 Company and agreed indemnify Childs Realty Company the had to the defendant Com- in with purpose deposited escrow for such legal Shapiro had, in that $3500 and merce the sum of indemnitor, would as such effect, Company, agreed that the analysis, contract In final the required the pay sum. not by ex- which he Shapiro the alleged by one is right to law waived his by implication as a result of pressly It is agreed payment of same. the $3500 not demand and against the his suit Shapiro by said contract alleged breached Missouri, County, of Jackson Court in the Circuit Childs $4172. judgment it for in he obtained Independence at evidence necessary substantial therefore, that there be It, becomes establishing fact that given upon the trial in record The said contract. alleged and he breached made such contract 282
burden proof of upon to establish such and breach plaintiff. May 9, 1924, relies the contract of
negotiations leading up contract thereto evidence show such and contends the real consideration said contract for Shapiro’s waiver and claim release of order obtain a withdrawal and cancellation of the notice termination However, complete reinstatement lease. .of it is nowhere stated in said contract such was the consideration said sum of is nowhere mentioned therein. may
It Sha- further noted that said contract did not reinstate piro By ’s lease with Com- Company. the Childs of the Childs act pany, determined, lease between itself and had been purposes, except possession premises and all by of the 1, 1924, payment time, October de- of rent him to such livery by him, possession premises payment of the and the "When $3500. the Childs such time of the sum acquired Company lease, the Childs it took such rights parties lease as the thereto were at that time fixed subject they Shapiro’s then existed to continue 1, 1924, upon payment possession to October of rent as therein provided and to his to demand the on account of provisions 1. The. termination of his lease October the contract remaining recognition rights 9May respect repairs was a lease; provisions but the under the Childs 1 remaining lease. over after October were effect a new [Shapiro Co., (2d) 17 S. W. v. 680.] Pennsylvania (C. C.), In Tel. Co. v. Co. Western Union R. terminating “A 384, said, valid a lease Fed. l. c. the court notice except consent given a cannot be withdrawn landlord or tenant creates a which amounts to new parties, of both notice tenancy.” withdrawal or cancellation of the new Neither was authorities, (Same accomplished said contract. of termination supra.) parties a new contract between new
The contract of of the old and considerations and not reinstatement new premises by Shapiro un- delivery possession amounted to in accordance with termination. der old such contract real consideration of proposition 3. The rights to by Shapiro the waiver to have been may be shown him from the $3500 due demand therein, questioned; but that such is not although expressed not by the evidence here- shown said contract the consideration *15 oral and neither does the evi- show it itself does not in. contract According to the testi- leading up thereto. negotiations dence of record, nothing was said about in the mony plaintiff’s officers negotiations. Rieger, representing Natban course of tbe $3500 tbe negotiations, tbat testified tbe tbe plaintiff and tbat, if not consent Sbapiro be did several times be mentioned to building with tbe other entry part improved could be that bis of tbe so be terminated be, Rieger, cause bis lease to part, Natban said pay but all of required put $3500 up would be $iat of tbe service prior or around tbe date conversations were of no- service Rieger tbat, after tbe further testified Natban notice. $3500. tice, nothing said about was ever tbe discussed at time Rieger be never testified tbat
Alexander Shapiro. cancellation notice of tbat served Sam "Wedlan testified with tbe deposited $3500 bad him tbe Sbapiro and told about afterwards nothing was ever but' tbat him. be bad with any conversation as a witness plaintiff by called Sbapiro was that" It is true course in tbe was made tbe repeated mention tbat stated coming him and always tbat it was negotiations tbe effect him, would not if contract, executed it, get tbat tbe was to under- tbat it with be executed rights thereto, and tbat bis affect bis conversations tbat all of testified standing. He further Riegers. tbe
From a consideration of all record, tbe evidence in tbe arewe forced to the conclusion tbat there is support no evidence to tbe con- tention that tbe real question consideration of tbe contract was a waiver defendant Sbapiro of bis payment to demand Upon $3500. tbe band, convincingly other appears that such was not consideration, tbe consideration. The so far as concerned, securing tbe enter tbe building second floor of tbe occupied by Shapiro and álterations, to make forthwith certain repairs, improvements connection with other repairs contemplated through- alterations and building out tbe entire obligation at that time and tbe Sbapiro during of rent interruption tbe occasioned entry and thereafter for a definite term. Tbat this is true abundantly shown all tbe evidence in tbe case. rec- Tbe whole ord contradicts claim tbat tbe tbe consideration for tbe lease was by plaintiff. contended contends, further, Plaintiff 9, 1924, tbat the contract of
when properly equity, construed constitutes law, not with- cancellation, drawal tbe notice of reinstatement of tbe old purposes, all and an Sbapiro require not to pay $3500. tbe requires give To such construction tbat we read into such contract something expressed therein, is not implied anything expressed surrounding therein nor from tbe circumstances, tbat
284 subject-matter, other, parties the relation of the and to each thereto object by to be subserved the contract nor from the conduct of parties subsequent with reference to its execu- thereto tion. it is province
That not a contract con- by of court to alter interpretation parties struction or make a for the or to new contract duty interpret is fundamental law. The court’s is construe it, themselves; and, construing which they the one in have made for give way. That there is one rule follow to which all must others get in- meaning rule .its true of the contract and enforce gathered tendment as corners. judicially from all its four To end, contract, subject-matter it is rela- elementary of the ordinary meaning parties subject-matter, tions of the and the language review, together pass of the in with the used in the contract object 14 al., to be v. Truman et subserved the contract. [Collins 526; Lindsay, S. 70; Thompson W. 217 Mo. v. Boeck, Donovan v. equally Mo. in law. J. applies equity This C. rule [13 53.] 521.] being All in the above rule such matters considered set forth meaning, purpose, with connection the contract ap- executing parties the same are found to as it intent meaning language con- pears from the of the used ordinary $3500 due made therein of the sum of tract itself. No mention is Shapiro waiving payment he was or of $3500 was The would not further demand same. subject-matter subject-matter part a of said The contract. respect of the contract was that between landlord and tenant property between them therein to the terms of new lease described, present involving surrender his right to vacate en- possession premises and his undisturbed tirely liability 1, 1924, his for rental on October terminate other existing the termination of lease on the hand and on the one securing Bealty Company to enter and hand the obliga- remodeling begin premises immediately a contract and of July rent until tion tenant under the old continue as 31, 1930, questions and the set- all of which were live between them The contract ample which consideration. tlement of constituted old, except as then a new the same terms tenancy created rights obligations mentioned, amended, based on the mutual rights Shapiro against Company; did not include accrued only purpose lease the old the reference therein to m v. Com- fixing the terms of the new [Shapiro futuro. court (2d) This same contract was before this 17 S. W. pany, 677.] set out. as above case and construed the above-mentioned here; and the defendant in that ease is the defendant Company in that case is the same originally Childs Company made defendant herein and later dismissed. nothing
There is the oral evidence which it is shown that made the as contended for plaintiff. The evi- plaintiff’s dence of officers in the record to the effect that the *17 negotiations never in the was mentioned course of the contract. for in court, opinion in v. This the ease of case, construing said in in “There supra, further this contract expressed defendant implied was no consideration or for the release of parties contract obligations, its which as to new from accrued to matter, their mutual as lessor necessary an not status outside was departing no that construction lessee.” There is reason for and agreed indem- Realty Company had in this ease. The fact against liability payment for the' nify Company the Childs Company was, therefore, ultimately and liable to the Childs fact, Shapiro was it, if does the situation. such be the not alter for thp Realty Company party arrangement between to the made not Realty nothing and had to do with The and it. arrangement with Childs become did not such any $3500. There was not liable to for Realty Com- claim the Childs novation of his to the Realty account pany. Company was not indebted to him on The $3500, making against it, claim for he had and not he was party was not a contract of none.
9; $3500, waiver, payment, the claim or settlement entirely subject-matter contract and did outside the of said matters naturally negotiations therefor fall therein belong not to the or or essenial thereto. become that, though nothing
5. Plaintiff insists even was said.about $3500, asking Shapiro, by that the written notice withdrawn and be entering put his lease back the same it was before and effect that and, question, rights into the contract in waived his legal effect, agreed with the for it require pay same, knowing that it had that he would it to obligations itself under sum in his lease placed pay the event must What- was terminated and that the contract be so construed. any, Shapiro may language, if used he had
ever or whatever during negotiations, regarding mind both the course -the event, he and the understood a new Realty required. If mind contract was he had in the reinstatement of the $3500, waiver virtue old contract and the of his either any event, therewith, it, or in connection reinstatement required arrangement contract. breath could a new and a new That it blown contract so that would be resurrected not be into the old formerly, as as never been operative and become
revived evident; rights ignored, fixed thereunder terminated merely nothing attempted upon. or relied lb be kind arrangement an tbe tbe terms desired future tbe same- new old, purpose. -for If be desired a took new contract sucb required. arrangement entirely future, a new tbe contract might necessarily implied new from whatever That a contract was tbe grasped bad in both him and intuitively have said or mind was to tbe Company, for tbe matter was once referred They Company’s plaintiff’s attorneys a new contract. to make making contract, understood, when it came to a new both knew and depend upon might accomplished tbe that what contract subject-matter agreements respect included their thereto tbe depends a written set Tbe effect of out therein. They what is omitted therefrom. both what is included therein negotiations agreed upon tbe that whatever both understood made. must, effective, new contract become be included tbe when By made, get putting did not back new contract as one tbe reinstating old. tbe old as made one to tbe same effect nor one tbe nor got there- many provisions lie new material new contract *18 in, giving right possession premises him tbe to continue in of tbe to expiration, upon its tbe old specified the date tbe lease for old prior rentals, being subject termination to that time but without to subject right given plaintiff for it to to a or tbe improvements, which premises forthwith make elaborate enter tbe foreign entirely old right granted to tbe tbe any, Shapiro used, if in tbe language may contract. Whatever have negotiations, actually tbe entered into does course of tbe might anything agreement which from an express or right or of implied respect $3500 to waiver of bis tbe be tbe to upon wholly Plaintiff any agreement that be intended to do so. relies nego- used,by during language tbe claimed -to have been tbe itself —that be wanted the notice of tiations tbe contract termina- put. bring lease back effect—to withdrawn and tbe to old tion alleged agreement purpose within tbe of tbe contract. of waiver signed understanding says be tbe contract with tbe that that right to tbe due from was not to'be bis get company thereby would sucb sum that and that be from affected However, Riegers repeatedly so advised him. neither and that tbe respecting incorporated tbe be' agreement- asked Evidently, was intended be. contract, and none none tbe was. agreed presumed to contain matters as written is tbe The contract negotiations therefor; .presumed of tbe and it is upon in tbe course merged therein,. regardless agreed matters that all tbe 544; Tuggles C. J. may presented been discussed. have what [13 Rieger testimony says Nathan Callison, bis Mo. v. 527.] agreed product is tbe finished all that was represent it does Shapiro’s language negotiations. purpose- If indicated their of all to obtain a contract different in intent and purpose from tbe ob- one tained as by shown its language used and one which by he waived his' right to $3500, evidently, he procure did not agreement. If did, then should have been reflected in the contract. If the Realty Company for it was the opinion, Shapiro by his language used was intending right to waive his $3500, it strange seems that it did not at inquiry least make ascertain if such his intention and had such fact incorporated in Further, contract. it likely is not that Shapiro -intended waive in the face of proposed entry Realty Company by which place his of business would be invaded up and torn blocked for months, as shown record, adequate without some being passed consideration to him Realty Company. tbe rights by secured including valuable the contract, entry and the payment of during interruption, rent got while all was the possession to remain length the same of time that he would have remained under the old sure, the old rentals had not been terminated. To be fact that better, improved place the future he have a thereby business and a more valuable location some extent con- record, it consideration; but, tributed some evidence in appears inadequate might sus- entirely for the loss interruption True, himby $3500- tained from the of his business. was, perhaps, compensation not intended him for sustained loss entry repairs improvements by an the land- occasioned lease; it, obligation nevertheless, but had become an lord under terminate, induced due reason notice might entry evicting him so that given purpose made. are used the contract apt words contends “that no Plaintiff *19 lease, reserved, no tenancy new rental 9 a no May to create new finally and that lease mentioned specified, and no conditions of term any modifica- does constitute not that this says therein enlargement lease of diminution, or alteration, tion, change, in remain full lease shall be and (of but that said Company) Childs agreements except pro- and provisions all its and effect force ’’ in the future and that right of termination of for elimination vision reinstated that there- is in effect or and old lease thereof by reason $3500 waiver or otherwise. right to the his by Shapiro has lost had been reinstated nor lease the old However, effect; and it was so determined this in and force it as was such supra. was there v. Childs It Shapiro case of court and ref- a new contract that the of contract held merely pur- lease therein for to the erence construction, fol- lease. That we new fixing the terms pose moment, that we should eon- suppose, But ease. in this low far as contention, result so plaintiff’s cede the what would be the ? Shapiro’s right $3500 to demand the is concerned First, however, given the con- we if the construction observe agree- obtain, this tract then the statement that should and modification, change, enlargement, ment does not constitute is the con- so forth of the Childs a contradiction of written; agreements be and all of the new therein would tract changes out; agreements certainly stricken for such involve material enlargement contract. May 9 face point But to the other contract of did not on the —the anything purport to unsettle that had been done under the thereof any rights or to set aside that had accrued contract 9; execution, May up thereunder or become fixed time of and, besides, language declared it constituted no thereof that forth, change except right and so elimination termina- remain in all tion that should be and force as to its terms given right provisions. effect, If is a retroactive then the certainly $3500 Shapiro thereby; to demand the be- confirmed agreements provision cause one of the in said contract made termination and for the such termination of $3500, already accomplished the sum of which termination had right already fixed; his to the had and if said con- become tract was to be and remain in full pro- force effect as to all of its visions, right necessarily his to demand his included thereby recognized language If given continued. such is not to be only, again, course, a retroactive effect but be for the future then right thereby; right was not affected because his had become fixed prior termination, past, reason of one depend and did not upon -anything might So, happen or be done the future. plaintiff, in looks, petar.” whatever direction it is “hoist with his own Realty Company right had no to assume that intended right to waive his under all the circumstances reflected by the record without Shapiro’s some statement of to that effect or might from such implied. Rieger says waiver have been Nathan say anything he did not about it—this for the .doubtless reason that he it would be doing knew useless and pur- so pose procuring securing might entry Rieger, doubtless, entirely defeated. well knew no had right; waiving intention pregnant through- record suggestion out with the everybody none and that con- nected with the contract knew it. The waiver of this was never it; obtained there is neither agreement. nor written evidence of oral It a was matter *20 wholly unexpressed foreign to and the contract of 9 when executed; agreement now, by and such cannot construction or inter- pretation, be read therein. C. J. agree- Neither was it an [13 535.] ' which ment legal arose as the effect from the contract written. Again,, 6. plaintiff the invokes rule that promisor the in the con- tract is according bound to the sense in which apprehended he that his, promisee proposition. received We have no fault find with legal proposition announced; but we find no facts this ease application to which may be made .the rule effect that for by may be is contended declared. There no evidence that intended $3500 to waive the payment or its agreed to him or that require he payment, not to any nor is there anywhere evidence he apprehended understood believing entered thereby into the that he intended require waive same or not payment. 7. Plaintiff further contends that con- Shapiro, defendant by failing duct to make demand Commerce deposited with it or any demand of the Childs against payment of the it it earlier than his suit due January, 1925, longer claiming he was no shows had waived it or considered that he had. payment Commerce respect his failure to demand
With arrangement party may a to the it that be was said subject it was was left not left there deposit which the there .and Company would order and of the Commerce to his demand both fruitless consent of except However, record show and Childs Company. does. said,deposit in December being advised of (cid:127) for its company for his receiving request said sum did make demand Realty Company, he release right to results. As to the without with it but —his explained until October He payment not mature of it did demand York, trip New fall make business intending in the he was and, trip, company, said headquarters place of that manner, prevented from it; he was up with in some the matter to take is not brought it. There suit making trip and ordered appears unreasonable the matter anything in his conduct about claim of'the with his is inconsistent or .that due; payment before demand the It was useless to $3500. given, thereafter, the circumstances under several waited months his claim certainly inconsistent with is not asking payment, so before (cid:127) it. negative disprove as to questioned by reason is to be However, Shapiro’s-right of.his delay Realty Cdmpany’s or that of delay, what-is deposit withdraw making no effort to :in says its recollection True, plaintiff fall? late in the May 9 until correspondence October, up but the taken matter was first How- might as late as indicates, have been December. record in the *21 290 contract point is, is immaterial. if the
ever, exact date The the Company had to claims, which plaintiff Realty such the the it yet take no effort to deposit 9; take down the accrued thereafter; and the from five to seven months down was made until assigned delay only is the matter overlooked. for such that reason Shapiro apply argument plaintiff which undertakes to to The same all the Company under would, applied plaintiff if or the to applied when circumstances, more than be entitled to consideration Shapiro. . that, if contract' point'in its brief the 8. Plaintiff makes the further par- equity accomplishing purpose the of the falls law short in the old the notice of cancellation and reinstate ties—to cancel re- express not to Shapiro the purposes for all and to such a mutual quire plaintiff pay there was the —then plaintiff to entitle 'mistake between impressed with equitable achieve result.' We áre not relief to that that place, case.' In first contention under the record such appear. does That parties had such intention not also intention not must have had such It sufficient. such Shapiro; upon must met the minds of both have intended agree- both have understood and intended such proposition; must accomplish as to expressed ments or such contract drawn so should no- Raeder, v. 149 such results. Mo. The evidence [Sutter 297.] agreed by plaintiff where it was ever shows con- negotiations their' or from the such results were to follow from fol- such tract entered into that was their intention that should part plaintiff’s witnesses was to low. The evidence negotiations, in their other effect that the was never mentioned prior to or around time than was advised giving put up of notice termination that it would have ' part the defendant pay $3500 to him. The evidence always effect that it was on various occasions and mentioned $3500, get contract, he he should execute the would still get ad- he was so was to it from-Childs and that nothing base Rieger. So, vised Nathan there the record finding upon parties that mistake the omission of agreements made. from the contract was written equity, but A be relieved may mistake of law fact Bank County parties. it must be a mutual mistake of [Cooper 814; Bank Bunceton, App. County 221 v. Cooper v. Bank Mo. Townley, 13; 69 Bunceton, 95; 288 S. Griffith v. Mo. W. Bank Wilhite, Mo. 621; 941; C. J. Highleyman, 53 Wilhite v. Norton v. by both a" 284 Mo. A mistake means mistake shared mutual 387.] 945; Ames Realty Company, 11 S. W. v. parties. C. J. Burns [53 Support claim that there was such (2d) does record 71.j must, therefore, fail. 'The contention mistake. Neither is there evidence in npon the record base contention that knew at the time of execution of the. contract understanding- had the and belief that the require terminating effect of understanding or that he himself had that and that whether he so understood that such was-to be the effect nf should, nevertheless, given the contract or not it be reformed and *22 Realty Company time, effect. or for it never at so shows, far as the record disclosed Shapiro that it so understood. That himself assumption. so understood is a mere This case does not call' applied the rule Cooper County the case of Bank v. Bank of Bunceton, App. 221 case, Mo. 814. In that shows a the evidence existing mutual mistake with reference to the status certain of a showing matter. There is no such ease. But, argues plaintiff, alleged if even no contract was made as petition, still, Shapiro, knowing Realty Company’s of the ob
ligation to knowing' Childs Company and $3500' with the Company belonged Realty Company it and that understood waiving right that he was his payment to demand- the $3500 of the right that he would have no demand payment such after agreement the execution reinstating of Company the Childs lease, estopped making any claim However, for it. was there no reinstatement Company of the Childs lease and no evidence that Shapiro understood Realty Company was understood he waiving right his to demand $3500 or that he would right have no to demand such payment after the execution agreement May 9. The Childs lease had been terminated notice, given purpose; and, for that provided the manner terms, right its to demand the sum of on October 1 fixed; had right become and the Company to.possession on October had agreement become fixed. An between the successor to the Childs Company assignee lease or the thereof and such lease should nothing be reinstated was agree more than a new party ment between such him rights and did not affect his fixed not, therefore, thereunder and did carry agreement an penalty him due agreement termination of the old entering should be waived his into It agree it.' amounted to a new party though ment between and a new even its' terms in some might respects "or in many have been the same as the Childs fact, however, In many contract. it contained provisions entirely foreign the Childs lease to which the' Childs agreed. never Such contract wat not the Childs Company contract say but a new contract. To knew that he waiving was his to demand the is a assump mere nothing tion, upon and there is the record which.to base it. .There nothing in written contract to the effect that-he waived it, understanding nor is there expression upon of an waiving part that it understood that was right. such It clear should be such mdersta'nding him, sue! existed the written made known to ;ct eon the best in which could have place would -have been such appear. appear be' made The fact that it not tends does therein the belief that made and that such 1o .dnee was not ’ erstandin’g, existed, if. r not known. If was. made n mpanyso understood, understanding it should have made known. , understanding was not sufficient for it to entertained such understanding made known unless mless such drawn, upon which both the terms the contract' acted, un knowingly as to show that such was the and he derstanding. meeting the parties must be of the minds of There v. thereof. terms conditions [Sutter Schraeder, 206; 13 C. 297; Taylor 149 Mo. Von 107 Mo. Raeder, v. meeting secret This the minds is not based some J. 264.] away purpose Upon part parties, stored or intention' one of mind, party, but brought of the other in his attention which, which has been made known or purpose and intention *23 known. C. Unless the''circumstances, should be J. all [13 265.] Shapiro’s was into that it the intention that contract entered shows the destroyed by contract or unless right waived-by to him and the such the evidence that appear be made otherwise from that fact to par understanding the of both parties both and was the intention of may supposi such alone entertained ties, that-plaintiff fact the unimportant. inconsequential and tion Reauty Company had argues 11. further the plaintiff The. Company -protect arrangement Childs into -an with entered deposited had of liability and-in thereof the sum against pursuance Company and that Commerce knew with the defendant and, therefore, for further arrangement deposit such (cid:127)of.such contract, permitted should not be having into said reason, entered Childs in such the inasmuch as judgment-.against collect-his plaintiff compelled for it would Company or Realty the event It Company. must be remembered Childs to the respond over arrangement Com- between party to. the Childs was not-a shown Company. It nowhere that he ever knew Realty and the pany made, that the had deposited been arrangement was (cid:127)such Realty -by such until after Commerce with n n deposit .being he, any rate, party not ar- At such was- made. recognize it. .There no bound to novation was not rangement, against his claim arrangement of Childs Com- said reason 'by n demand, any, against His .was Company. -Realty pany n Childs action the Childs had Company; n mot by him in by anything or done said connec- waived been
29ÍÍ arrangement tion said between the Cbilds and the Company. Realty He had not responsible for arrangement such deposit nor for the of said sum Realty Company. predica- any, ment, if became-involved in -making arrangement with the depositing the was, upon the facts in record, the result Realty Company’s voluntary premises. acts in -the seeking It -was new bank- ing quarters for the or rather seeking -quarters through it, and- the building location or in which Shapiro was located was upon determined purpose. Sha- piro was the lessee therein of the .entire second floor for a term expiring in 1930 was conducting his business there. The (cid:127) plaintiff, through Realty acquired Company, the leasehold in- Subject building terest said to various leases held thereon by sub- assigned tenants Realty Company, including the Shapiro. lease of Plaintiff once, desired through Realty at Com- pany, to make material and building extensive alterations in said throughout; privilege entering denied it the interfering provision with his There floor. was no in his re-entry by making repairs, the lessor for and he deny consequent interruption such entry and the his business'. The through thereupon, plaintiff, Company, purpose entering making repairs improvements and alterations advantage early possible, termination clause date as took lessor, original lease, herein, and in his so referred to caused often termination, at the earliest date to serve notice of In therefor, being October effective which could be made willing -and enter perfectly did so, Company was doing and, indemnify Company arrangement $3500 with deposited the sum purpose, advanced Company. .notice, receipt did Shapiro, upon the The defendant *24 waiting for the effective apparently but was immediately out move negotiations purpose; for that lease of his the of termination date Shapiro which culmi- Company and Realty begun the between Realty the provided was whereby it in a contract written nated contempla- make the might enter forthwith Company repairs 1924, con- might, after October that defendant tion original His lease the date premises until the possession of tinue fight termina- of rental without the same the expired at would right under the Shapiro had to such time. prior in the lessor tion possession stated, to continue lease, as above Company Childs the into, 9 was May entered of the time the October At until Company take to Childs arrangement with the Realty Company’s the it Realty Company; upon by the entered had been $3500 care making entering purpose its to secure deposited sum willing the -upon building desired alterations perfectly the was give t© privilege, $3500 for such at six months even the end of time; acquired right and, enter contract, said it to n evidently improvements, right once and make which n upon making its The part consideration for the such contract. wholly,a paid Shapiro by Company to be Childs the Childs Company obligation in-the could not involved contract and only respect have become involved therein some with Nothing parties. thereto made kind appears between the Nothing Nothing ap- appears the record. in the written contract. pears by implication entirely as The record is silent to therefrom. any upon part Shapiro to his claim or the- surrender his right payment sum; plaintiff upon to demand said whom prove agreement,' made, wholly the burden to if failed rested, to do. not, again-, plaintiff
12. But after contends that should having obtained enabled to the contract he was possession premises provided continue in as the same term rentals, original permitted demand the old be to Company reason from' Childs arrangement with Realty Company plaintiff it, or under- the compelled it will pay will to and that be same- inequitable require plain- be so. The view such fact it do Realty urging tiff in point seemingly overlooks the fact that the willing Company plaintiff perfectly pay for was or it get improvements upon permission to 'enter and defendant make willing for such Shapiro’s possessions, regardless of whether he was inequitable entry might regarded for it not, or and that it now be the contract the him as an consideration for to demand of additional gotten what wanted. demand, especially his after it has it surrender of equity. equity He must do He must come into court who asks shows, never clean hands: So far this- record agreed, impliedly, to waive or surrender expressly or consideration' nothing There circumstances $3500. to demand the inequitable considered, it for defendant case, all that makes of this according due demand of- sum. Realty doing contract, even so terms of Company. required to reimburse the Childs or away. requiring bargained He did no act not been to do so has arrangement Com- its into to enter $3500. putting up was misled into by which it pany or anything lead did do Neither contract, entered into the if the to believe obligations of its to the Childs released of deposit with the or to maintain obligation *25 deposit down such and that would no might take that it believe He by it. Company for sum him longer look to the Childs due as an act, discloses, might operate did no so far as the record which him against estoppel plaintiff in or favor of the against in suit (Shapiro) making in in his demand might make in or that manner inequitable prosecute such’suit.' there is no considered, opinion that
The entire record we are of the entitled to the plaintiff’s in case as and that it is not equity made or sought, regardless Shapiro be solvent equitable of whether relief further injunction It insolvent, should be dissolved. and that show failed to from conclusions reached that the follows here- action maintain the trial entitle it to facts sufficient judgment recovered equity law, it to the in, in or at or to entitle either alleged in court that no herein the trial have made evidence to been by been shown petition has bringing by Shapiro in defendant breached or violated therefore none Independ- Company in circuit against court his suit therein, judgment against recovering and in ence damaged evidence by and there no which has judgment the trial court. support record to based petition case. The disposes of this What has been said in con- alleged alleged agreement and other circumstances upon the equi- alleged upon which surrounding, plaintiff’s or nection therewith Shapiro. estop the defendant it seeks to based and ties are directly have been made either alleged is not shown to equity; matter law or resulted as a nor implication, or support plain- as to upon are not such circumstances relied and the equities estoppel defendant alleged claims of. tiff or ’s judgment whatever any relief or plaintiff as to entitle angle discussed. viewed or equity whatever .law This equity case was tried as an case by the learned' chancellor be- low; duty and it becomes the of this court to evidence, review the findings, and decree below and judgment to render such in its opinion evidence, conforms to the law and the deferring may where it chancellor; if, to-the conclusions reached but, upon review of record, agree the entire it is unable to with his judg- conclusions and ment, duty it becomes its to follow its own conclusions and order judgment conformity -in In case, therewith. having this reached conclusion from an examination of the entire record that there is no support judgment evidence the record to below and that the judgment erroneous, of the learned chancellor is it follows, injunction judgment should be' dissolved and throughout re- outright. Having reached versed such conclusion under head, unnecessary questions consider the becomes other and issues raised pleadings respective this ease or discussed parties in Accordingly, we stated, their briefs. recommend for the reasons *26 below judgment tbe of tbe court dissolved injunction be tbe Campbell, C., concurs. reversed. C., Reynolds, foregoing opinion PER CURIAM: Tbe reversed, and judgment Tbe opinion
adopted as court. tbe concur. All injunction dissolved. Exschange Bank, Appellant, The Farmers Netherton, v.
Earl W. Respondent. (2d) 156. S. W. Liquidation, City Appeals. November Kansas Court of Leopard appellant. Dean H.