Keinstra v. King

143 Mo. App. 33 | Mo. Ct. App. | 1909

GOODE, J.

(after stating the facts). — The way the court declared the law leaves but one ground on which defendant can be held personally liable for the rent, i. e., that the relation of landlord and tenant had become established between plaintiff and defendant by the latter’s use and occupation of the premises. The court declared defendant was not liable by virtue of the written lease or if the only acts of control he exercised over the premises were as president of the company; that the relation of landlord and tenant between him and plaintiff must have existed to lay him liable; that if tbe King Electric Company was in possession of tbe premises and defendant paid rent as president of said company, plaintiff could not recover, and if defendant never was as an individual, or by agent, in possession of tbe premises, plaintiff could not recover. We can conceive of no possible theory under which defendant can be made liable in view of those declarations, unless be was found to have been personally in tbe use and occupation of tbe premises and tbe tenant of plaintiff. [Cohen v. Kyler, 27 Mo. 123; Hynes v. Ecker, 34 Mo. App. 650, 658.] Tbe difficulty with this theory is there is no testimony to show defendant was ever as an individual in occupation of tbe premises or tenant of plaintiff. Plaintiff’s own testimony shows be let, to other individuals, permitted them to assign tbe lease to the Olive Branch Company; after that company bad sold out under a receiver and Mrs. King bad purchased and a new company, tbe King Electric, bad been organized, recognized tbe latter as tenant and in possession and bad accepted rent first from Mrs. King and then from King. It is true be testified they paid by personal checks, but we regard this as an immaterial circumstance; for be swore tbe King Electric Company carried on business in tbe plant for five or six years, then moved tbe machinery away and left tbe buildings there. Plainly under all tbe testimony it was tbe King Electric Company and not defendant who used and occupied tbe premises and was the tenant of plaintiff. Tbe point has not been made that defendant is liable for tbe rent as owner of practically tbe entire stock of tbe corporation, and as far as tbe evidence shows there weye at least two other stockholders when this rent accrued who were not even members of defendant’s family. Sometimes when an individual attempts to use a corporation which be substantially owns and controls as a cloak to evade personal liability, a court will disregard tbe corporate existence. [Cook, Corporations (6 Ed.), secs. 6, 663.] Nothing had been advanced to show this case ought to be determined on that proposition.

The judgment is reversed.

All concur.