*1 A. H. Mack Executrix of the Last Will Shofstall, Mae Ida Helen A. Appellants, Testament H. Shofstall, of Fred v.
Eyssell. (2d) S. 1049. 59 W. April 20, One, 1933. Division Hoivell, Daniel V. C. P. LeMire Leon Greenebaum appel- lant.
Mertsheimer Kelly, O’Donnell and Buchholz & O’Donnell for c& respondent. *4 damages alleged breach for for
FERGUSON, is an action C. This amended second demurrer to the Defendant’s lease. of a written judgment entered and sustained, the dismissed petition was 1929, Statutes from Revised 796, with Sеction accordance in appealed. plaintiff circuit court judgment the of order and ap jurisdiction of the gives for this court damages sued amount of Shofstall Mack and Fred H. A. H. brought by action was peal. The duly the and action died Shofstall Thereafter plaintiffs. as will of the Shofstall, of executrix Mae of Ida thе name revived in was sub deceased, such executrix she and as Shofstall, IT. Fred IT. Shofstall. of Fred plaintiff instead party stituted as ap- it the facts petition for amended solely second Looking H. one H. Mack and A. 1919, plaintiff January 16, pears that on three-story aof possession in were and tenants Payne, as lessees City, Mis- in Kansas Street Twenty-fourth East on located “Mack building was the known as Hotel” and souri. The Payne in by carrying on a hotel used Mack and business. The build- Eyssell Payne by A. Mack ing was defendant Helen and and owned lease of five under a written for a term occupied as her tenants it day 1, January, 16th 1919. 1915. On the of years September from action entеred into between the lease involved this written A. Eyssell H. Mack and J. H. A. as lessor defendant Helen let, proper Payne whereby demised and lessor as lessees the the three-story Mack to thereof, said description the stated, a term therein rental terms at a upon lessees the ending 1920, September, day years beginning the 1st оf on of five in full the This lease set out August, 1925. day of on the 31st relating lease, of the articles the twelve copy here first .petition. To payment and manner of terms, rental conditions, they do to the questions presented. help in solution same, no the be of would gives rise to alone article, numbered last applicatiоn as follows: controversy. It is this Right
“Landlord’s to In Re-Build: further of this consideration lease, Landlord, upon giving days’ the the Tenants .ninety notice may do, upon her intention so to premises, enter said tear down rebuild, alter, to, change add otherwise now on said premises, present building add and should Landlord erecting adjoining lot, thereto аn addition on the or construct addi- both, present building, or this shall extend tional stories to the lease additions to effect as the to and include such extensions and the same hereby agree pay buildings leased, and Tenants premises and may mutually agreed by the Land- such additional rent Tenants event that Landlord lord and the Tenаnts or shall an arbitrator and the two agree, each shall select cannot then arbitrators, or 'a agreed upon rent third, select a Tenants rent which the them, be the majority shall be taken to for the terms this obligated pay under the shall be balance said term. agreed
“It is understood and that the rent during shall be abated period improvement of the alteration and in proportion to the present building extent that is rendered untenable.” appears Eyssell It that defendant owned a'vacant lot or tract of land, fronting Twenty-Fourth East Street, on immediately east of three-story lot on which *5 lease, subject The alleges was locatеd. then 1920, Payne, in March, that with the consent of defendant, sold rights his in an assigned and all and title in- undivided one-half Shofstall; May June, 1921, in terest in the lease to that thereafter or Eyssell contract, into a entered written referred to as a defendant agreement, Josephson, preliminary Josephson with Frank Sam and S. J. Stats, “or one or mоre of them by ... the terms which of provided, it was in substance and effect that Eys- defendant Helen A. sell did then agree lease and to lease to said Frank Josephson, Sam Josephson and S. J. Stats, or one or them, more of corpo- or to such they ration as or any one of might them thereafter promote act tо ’’ lessee, the then vacant lot or parcel of land by owned defendant Eyssell immediately adjoining Mack Hotel building on the east “together buildings with such by defendant preliminary said agreement agreed to thereon, build and erect defendant, and that Eyssell Helen proceed would with all dispatch reasonable speed and to erect and construct on premises building said suitable and use- purposes.” foregoing hotel allegations are ful for followed averment: “the hotel as mentioned in and described preliminary agreement, said was and is an addition to Mack building hotel on the meaning lot within the and of terms alleged article of lease.” in said It that part “the latter of part July, or 1921, subsequent June first to execution of agreement preliminary having referred to” Shofstall learned knowledge “being thereof and execution induced his and thereof thereby placed the realization that defendant had it out her plaintiffs possession of to Maek powеr to deliver to the addition building contemplated preliminary in provided and for said hotel did, . . and agreement . for a valuable consideration with assign landlord, sell, herein, as and transfer” of defendant consent his, Mack, Shofstall’s undivided one-half interest A. H. “all to a cor- states that thereafter then and to said lease.” Josеphson Frank and S. and Sam organized poration was October, Company and that Plaza the name Stats under agreement preliminary to said Eyssell “pursuant 1921, defendant into a writ- made and entered thereof and conditions the terms and whereby Company” she Plaza Hotel corporation with said ten or lot the then vacant company to said and let” demised “granted, of the lot whereon adjoining and east ground parcel years after from and of ten á term for building situate rental at a and provided or fixed as therein determined date to be with “proceed she would that agreed upon and stated therein (thereon) construct erect and speed to dispatch.and all reasonable occupancy, “ready for date that from” months within twelve reinforced concrete or or concrete modern, steel fireproof, basement; . . said . that height with (9) stories nine purposes hotel useable suitable to be ground flooi or first above (80) rooms еighty have total partitions with rooms compartments Pullmanette eight (8) built be erected to said floor; ground on the pre- made addenda specifications plans, according
677 pared” certain named architects. Immediately following this description proposed of the new which building, it is stated defend- agreed ant to construct erect, and this averment is made: “the ’’ hotel building as mentioned described, and in the lease to the Plaza Hotel Company, “and referred to as the Plaza building Hotel and building is an addition to the plaintiff leased to A. H. Mack and Payne J. H. meaning within the terms and 13” article of their lease. It will be borne mind that the lease Pаyne to Mack and three-story, so-called, related to the Mack Hotel building. Continu- ing petition recites, next proceeded" that defendant with the work preparatory “excavation to” and “construction of said Plaza building completed until same was and ready occupancy on 21, 1922, or about” June defendаnt and that put delivered to and Company possession Plaza Hotel “in of said Plaza hotel build- ing” corporation possession that said “still retains and of said Plaza ‘ ’’ ‘ building ; and hotel then averment that said Plaza hotel build- ing, constructed . . . built and as aforesaid and delivered as possession Plaza Hotel Company, corpora- aforesaid into the tion, building an Mack Hotel was and is addition to the and the premises plaintiff Payne to A. H. Mack and H. leased within the 13 in- meaning the terms of article of said lease within the and allega- parties The concludes with tention of the thereto.” plaintiffs as aforesaid de- tions reason of defendant’s aсts were that Plaza prived “possession, use, occupation value of said they were building” they which claim entitled under hotel to building, Mack provisions 13 of lease of article their damages. prays de contract entered into between of the lease and Article Payne, lessees, that de provides, landlord and fendant alter, rebuild, upon tear down “may premises enter said fendant (the premises” on change now said add to or otherwise relates) said “and which lease three-story Mack Hotel building by erecting an addi present to the landlord add should the additional stories adjoining or construct lot tion thereto on include shall еxtend to both, present.building, or this am provisions are not additions,” etc. such extensions added clearly only to a structure very apply biguous and lease, thereto as an addition building, covered Mack Hotel To by way stories. adjoining of additional lot or either peti alleged in the from facts appear it must actiоn state cause of erected' conclusions, the structure that of mere tion, independent the Mack Hotel adjoining an addition lot upon the grounds building. demurrer e., something to that i. added to constitute facts sufficient state petition “does not are that the against defendant.” this of plaintiffs favor cause of actiоn defendant, support respondent, In of the demurrer contends that appears not state facts from it the struc- does having ture referred to therein as been erected on the lot to, the Mack Hotel an addi- structure added or was *7 to, building charge Mack Hotel a breach of Article tion the so as to leasing building of the Plaza 13 the Mack Hotel the Plotel building Company Plaza Hotel that if it be held facts that charge stated to a breach of said article that never- sufficiently are plaintiff is Shofstall no cause of action stated theless petition is demurrable. reason also the that something- implies contact; physical “The word ‘addition’ Miller, 885, 1 J. 1190.” 330 [Meyering C. v. Mo. added to another. ordinary meaning of (2d) 65, W the term “addi 51 S. 66.] building” physically structure attached to or con a is some tion to building New International Dic with itself. Webster’s the nected a tionary the word “addition” when used reference to defines being building, part “A added a either built so building as: joined it, by being whole with or with fоrm architectural as to one necessary passage, and used so that is a way, by a one in some it other, or so that both constitute adjunct appurtenance or building.” Concerning one and the same the struc purpose use and adjoining Mack Hotel build three-story lot the upon the erected ture a allegеs and constructed that defendant erected ing petition the lot; implication and natural upon the reasonable building such independent that such structure an allegation alone is that petition any specific do we find fact or in the no where unit since that such structure tending show or indicate alleged facts building, with Mack Hotel connected to or attached physically buildings building were or that the two something that added to other means of communication passageway or joined together by necessary adjunct appurtenance of or the other” awas so that “one building. implications constituting the same one and adjоin fact, the structure erected on the allegations that further con fireproof, steel or concrete or reinforced “a modern ing lot was covering basement, height, with building” (9) stories in nine crete pur a hotel and built for that lot, suitable for the entire practically eight ground the first or floor eighty above having rooms рose, ground floor, are that the struc on the compartments Pullmanette building. independent distinct and separate, awas ture alleged indicating, or from are whatsoever Though no facts added to drawn, that such structure was can be inference an as to be three-story with connected so connote con which are stated facts and the thereto addition an general allegations with the averment such follows trary building. As Mack Hotel addition to the an is structure such
679 pleaded averment must be treated as a unsupported conclusion any allegations appropriate upon of fact predicate which to same. The demurrer does not admit truth of pleaded conclusions but only pleaded question admits the facts and the of whether said predicated conclusions can on the facts still (Stephens remains City Liverymen v. Assn., 40) Mound 596, Mo. 246 S. W.
while a demurrer pleaded admits the facts it does not admit charac- terization of such facts which merely a conclusion or on statement part pleader. ex rel. Mutual Life Ins. Minnesota [State Co. Denton, v Mo. 129 S. Having W. pleaded facts 709.] which both in direct implications statement thereof and the there- from show the structure erected lot to have been new, separate itself, distinct unconnected with Mack Hotel appears then avers what to be characterizing conclusion law such structure as an addition single to Mack Hotel pleaded without a fact which would any physical tend to show that it had connection or communication *8 Mack building any whatsoever with the in way or that it could be considered as an addition sоmething thereto or as added to that building. But whether the averment that such addi- an tion to the Mack of deemed a conclusion of law or one nevertheless, alleged fact it is under the facts such as averment most, in petition, is made this at mere conclusion and a demurrer does not admit either “the law in soundness of cоnclusions of the pleading, pleader nor mere conclusions of the on the facts constitu- Long, tive of the cause of action.” & Co. v. Coal Iron [Lackawana 605, 231 133 Mo. S. W. Such a a demurrer conclusion is 35.] . issue, “as . . . . . treated no statement all at raises no denied, by need not be and its is admitted a demurrer.” truth not Nemnich, 388, S. Mallinсkrodt Chemical v. 169 Mo. 69 W. Works petition That a will not render it demur contains conclusions 355.] alleged if rable sufficient facts'are also to show cause of action right thereby, in con plaintiff’s prejudiced such a case a is not clusions, being expressions opinion, unnecessary re of statements garded surplusage. 379, ;380 inf. Barkеr pp. C. State ex [49 Co., in the Packing 123, v. Armour 265 S. W. But Mo. 176 382.] averred and disregarding, must, conclusion instant case as we the only looking alleged aris reasonable inferences facts and the Payne lease is ing 13 Mack and therefrom a breach of Article breach are not necessary such not stated. vital matters to show averred, charged except conclusion the form of and the v. Works makes Chemical the demurrable. [Mallinckrodt (Mo. v. Anderson Nemnich, 355; 169 69 W. Roberts Mo. S. App.), 254 S. W. 723.] moved to have say should
“Nor will it do to that defendant 680 pleading “might
have made the more definite and certain.” She have compelled indeed done this but was not to do The primary- so. malting duty pleading party of the definite and certain is on the drawing pleading he the cannot his remissness cast on his opponent doing onus duty demands, of what his own of duty unmistakably” meaning clearly expressing his in- and in this stance, specific alleged, stating of in view of the matter facts such reading have enabled the to ascertain “would courts” “from nine-story building dеsignated allegations petition” building was so as the Plaza Hotel as to constructed three-story constitute an addition Company Plaza breach leasing thereof to therefore a Mack-Payne 13 Chemical lease. of Article [Mallinckrodt 388, 398, 69 S. Nemnich, v. W. Mo. Works 355.] think demurrer sus- properly we For the reasons stated of thе other and con- which obviates discussion further tained support the demurrer. tentions made Sturgis Hyde, GC., judgment affirmed. of the trial court is concur. Ferguson, C.,
PER foregoing opinion CURIAM:—The judges All concur. adopted opinion as the the court. R.C. Biswell, G. S. Walden, ex rel. Ernest v. State Davis Members Jr., Hughes, Morrison B. M. Woods Amick, W. F. Appellants. Equalization, County Board of Howard *9 (2d) 24. S. W. Two, April 1933.
Division