224 S.W.2d 80 | Mo. | 1949
Lead Opinion
This action involves the construction and meaning of this clause in a lease: "Lessee will be given first option to purchase property within year lease if in effect at a price of $8,000.00." The precise question upon this appeal by the lessor is whether the trial court should have decreed specific performance of the clause as an absolute and unconditional option and compelled a conveyance of the property to the lessee.
Sophie Reising owned the two and one half story brick building at 2655 Shenandoah Avenue in St. Louis. For more than twenty years Mrs. Reising and her husband operated a grocery store and market in the first floor of the building and lived in the second floor. Mr. Reising died in 1939 and thereafter Mrs. Reising and her son, Henry, operated the store. In 1946 they decided to sell the grocery store and the building. Mr. A. Joe Stein was introduced to them as a prospective purchaser. He had once operated a grocery store, probably unsuccessfully, and in the intervening years had been employed as a butcher. He immediately entered into negotiations with the Reisings and by the 9th of July had agreed to buy the grocery store. He paid them $4,875.00 for the fixtures and good will of the business for which they gave him a bill of sale. The grocery stock was inventoried *808 to him and he bought a truck from Henry and in turn sold Henry his automobile, for all of which he made a further payment of $2,372.00, or a total cash outlay for the fixtures, stock and truck of $7,247.00. This phase of the transaction was either agreed upon or consummated by Monday, August 12, 1946. On that day Mr. Stein took over the management and operation of the grocery store and he and Mrs. Reising executed the lease.
The lease is a printed form with the dates, the names, the consideration, the description of the premises and the option clause typed into the blank spaces. The lease is of the "store building and flat" for [81] a period of one year from the 12th day of August 1946. The specified year's rent is $1,020.00, payable in monthly installments of $85.00. There is no provision for a renewal of the lease and it provides for double rent in the event the lessee should hold over after the expiration of the specified term, and it also provides that any alterations or repairs will be made at the expense of the lessee. Following the printed form and what may be called the body of the lease is the inserted option clause involved upon this appeal.
Mr. Stein made the monthly payments of rent up to and including June 12, 1947. Since that date he has not paid any rent. It is his position, despite the separate documents and the terms of the option clause, that the purchase of the grocery store and fixtures and the leasing and sale of the building were all a part of one transaction and that throughout the negotiations he maintained the attitude that he wanted to buy the building as well as the store and would not have entered into the arrangement except for the fact that he had a right to buy the building. He claims that Mrs. Reising agreed to and did give him a one year lease with an absolute option to buy the building during the term of the lease for $8,000.00. Accordingly, on the 12th day of February 1947, and on almost every rent paying day thereafter, he advised Mrs. Reising that he was ready to buy the building but she always replied, "Joe, I told you before I am not ready to sell." In June he tendered $8,000.00 in cash and demanded that she execute a deed but she refused, stating that she would see him after she returned from a vacation. This action for specific performance followed on June 27th, 1947.
[1] Considering, first, the sentence, "Lessee will be givenfirst option to purchase property within year lease if in effect at a price of $8,000.00," apart from its context, it plainly grants a conditional or preferential and not an absolute option to purchase. In R.I. Realty Co. v. Terrell,
The only case squarely contrary in principle to this view is Tantum v. Keller,
[2] Considering, second, the lease as a whole and the option clause in its context and construing the lease against the lessor (annotation 26 A.L.R. 1413), since she had the instrument drawn, the conclusion that the option is conditional is nevertheless compelled. Other provisions of the lease, when considered with the option clause, do not make the option conditional, rather than absolute, so plainly as did the language of the lease in In re Rigby's Estate, (Wyo.) 167 P. (2) 964. But here we have a lease clearly limited to a one year term and the respondent does not claim that any other provision in fact limits or modifies the meaning of the option clause. He points to the fact that he made improvements and alterations totaling $1,200.00 and the fact that Mrs. Reising contracted in the lease to and did move out of the flat on the 12th of November. But, as to his expenditures on the building, the lease in unmistakable terms provides that "All repairs and alterations deemed necessary by said lessee to be made at the expense of said lessee, with the consent of said lessor, and not otherwise." The fact that she contracted to and did give possession of the flat may be some indication that she did not expect to again occupy the premises but the fact in no way qualifies the force or meaning of the option. Sander v. Schwab, supra. In Fergen v. Lyons,
[3] It may be that the dealings between the parties were all a part of one transaction, but it is quite certain that the parties intended to and did reduce all their agreements concerning the building *811
to writing, and their prior negotiations and understandings are contained in the written lease. Mr. Stein read the lease before he signed it; there is no claim of fraud or of mistake in their usual sense, and in all the circumstances it is doubtful that parol evidence was admissible in determining either the meaning of the instrument or the intention of the parties. 32 Am. Jur., Secs. 130-137, 299, pp. 134-140, 278; annotations [83] 25 A.L.R. 787; 88 A.L.R. 1380; 151 A.L.R. 279. It must be kept in mind that this is not an action to reform the lease for fraud or mistake or because the lease as written failed to express the true intention of the parties. Wells v. Fisher,
Mrs. Reising admits that she wanted to sell the building as well as the grocery business but admittedly they were unable, initially, to agree upon the terms of a sale, particularly as to the time in which the sale would be consummated. Mr. Stein says that she wanted him to purchase the building within three months of his taking over the grocery store, and accordingly, she had a lease drawn giving him an unconditional three months' option. But he refused to execute that lease, stating that it would be at least six months before he would be able to finance the purchase of the building. She says that she did not offer a three months' option but did offer to give him an option to renew the lease for a term of three years and he declined that offer saying that he wanted but a year's lease. She claims that the written lease expresses their oral agreement and understanding. Thus their prior negotiations and their oral testimony seem to confirm that they were unable to agree on the terms of a sale, particularly as to when the sale was to be consummated. Subsequently, when Mr. Stein would offer to buy, her explanation of not then being ready to sell was that in August, when she offered to sell, she had an investment she could make but by the time he offered to buy the investment was no longer available. It is not necessary to further examine in detail the oral evidence, it is sufficient to show by this brief illustration that the oral testimony of the parties merely emphasizes the claim he now makes that he had an absolute option and her contradictory claim that he did not. In Stetler v. North *812
Branch Transit Co.,
[4] Considering all three factors, the option apart from its context, the lease as a whole and the extrinsic circumstances, it can only be said that Mr. Stein had a conditional or preferential and not an absolute option to purchase the building. Accordingly, the judgment of specific performance is reversed.
Addendum
The foregoing opinion by BARRETT, C., is adopted as the opinion of the Court en Banc. Tipton, Conkling, Douglas and EllisonJJ., and Hyde, C.J., concur; Leedy and Clark, JJ., dissent.