137 Mo. App. 229 | Mo. Ct. App. | 1909
(after stating the facts). — Defendant’s counsel insist the contract between Glascock on one part and Solomon & Wise on the other was of such a nature that their client was exonerated from liability on it in consequence of plaintiff’s procuring an allowance by the referee in bankruptcy of the present demand against Solomon & Wise. They say Yette, by demanding and getting the furniture and fixtures and demanding also the goods, elected to rescind the entire contract and hence released defendant as guar
“It is specially understood tthat the said .chattel mortgage to be executed shall include all stock and fixtures contained in said drugstore, and all stock and fixtures that may be added to said drugstore from time to time; and the said Solomon & Wise shall guarantee that the stock shall not be less than $800 in case the stock and fixtures are turned back to William Y. Glascock.”
That clause refers only to the value of the stock if turned back inside of eight months as previously provided. As Solomon & Wise never attempted to terminate the alleged tenancy, but remained in occupancy until July, 1905, or more than a month after the term had expired, neither Glascock nor plaintiff as assignee, became entitled, by virtue of said proviso of the contract, to a return of the merchandise. Whether return might be demanded under our statute will be determined later. But defendant bound itself inter alia for the payment by Solomon & Wise of $1,800 for the entire term. The whole sum has not been paid, and' defendant would be liable for the balance if the covenants it guarantied were contained in a separate contract of lease. If the whole contract was simply one for the conditional sale of the nroperty, defendant’s liability must be discussed from another point of view. The second part of the agreement between Glascock on one side and Solomon & Wise on the other, was in the form of a proposal by the latter, accepted by Glascock, to purchase the stock, fixtures, furniture and good-will of the establishment, and to execute to them a sublease of the room for a term to end April 30, 1909, the same date Glascock’s lease ended, and for the
Several things stand in relief on this agreement : firstly, that Solomon & Wise had no right to purchase the property until they had carried out the first stipulation by paying the full $1,800 for which defendant stood sponsor; secondly, if they failed to carry out the agreement as a whole, and all the terms of it; the two hundred dollars put up with Glascock should go as liquidated damages to him; thirdly, if they abandoned the enterprise during the first eight months and turned the stock back to Glascock, they would lose it, what they had paid on it, and also the $200. Was the first portion of the contract what it purports on its face to be, to-wit: a demise of Glascock’s leasehold, fixtures and merchandise, and the second part a contract giving Solomon & Wise an option to purchase the property at the end of the term, or was the contract as a whole a conditional sale of the leasehold, executed in a peculiar form to evade our statutes regarding conditional sales? We think the latter is the correct conclusion. All parts of the contract purport to have been executed on the same day, including the appendix to provide what should be done in the event the property was burnt, the receipt of Glascock for $200, expressed to be “earnest money as per contract Oct. 1, 1904,” and the recital in the contract said sum was “to be applied in part payment for the above named business.” The monthly installments called for in the first part of the agreement were made up of the rental due the Star Building Company for the storeroom, of
Treating it, therefore, as a conditional sale, it is not clear how this conclusion affects the liability of defendant upon its guaranty. Our statutes require sales, leases,
Vette procured an allowance of the demand before the referee in bankruptcy and it is argued his doing so precludes him from using the present remedy. The idea is this: by proceeding in bankruptcy for an allowance and for the return of the furniture and fixtures, he elected to rescind the contract with Solomon & Wise, thereby releasing defendant from its guaranty of performance of the contract. This argument is weak. As far as the allowance of the referee is concerned, it covered part of what Vette is entitled to judgment for in the present ease, but the obligee of a contract to which there are several obligors, may have different judgments against them for a breach, but can have only one satisfaction. [Carroll v. Campbell, 110 Mo. 557.] If defendant and Solomon & Wise were copromisors, plaintiff might obtain separate judgments against them, and certainly he is not precluded from a judgment against defendant, which bound itself in a distinct contract, by the fruitless allowance against the bankrupts. On what theory the referee in bankruptcy ordered the furniture and fixtures turned over to Vette and the United States District Court affirmed the order, Ave are not apprised. It may be because the instrument executed by Solomon & Wise and Glascock was construed to be both a contract of lease and an option to purchase. The fact that the right of other creditors to take advantage of the non-recording of the contract, if it was a sale on condition, was not enforced, indicates this theory was followed. [Missouri, etc., Plow Co. v. Spilman, 117 Fed. 746; Parlin, etc., Co. v. Hord, 78 Mo. App. 279; Oyler v. Renfro, 86 Mo. App. 231.] But said right may not have been asserted for the reason that the amount paid by Solomon & Wise, even if the
The judgment is reversed and the cause remanded.