*1 tending do, entitled to it general denial, we hold was der its was the case Bryant contractor independent anwas show that ease, in the we issue theory tried both sides on jury. The been submitted to the why it not have see no should reason criticized and we deem question is form of the instructions unnecessary further. to discuss them Davis and remanded. judgment the cause is reversed and GC., ITenwoo'.l, concur. adopted Cooley, C., opinion foregoing
PER CURIAM: The concur. judges opinion court. All of the Company et Appellant, v. North Schleinitz, Rene Von (2d) 64. al. 23 W. S. One, 1929. October Division *3 appellant. & Meredith Harwood for E, AyIwarcl Walsh <£(cid:127) respondent Sheer; for W. J. M. Metcalf respondent Secrest; for J. A. McGuire for respondent E. John Fred Tyler Colegrove; Gosseti, Ellis, respondent AY. Dietrich <& Hurst; respondent Ben Lowry. Mertseimer & O’Donnell for H. E.
1114 in Circuit equity, commenced a in C. This is suit SEDDON, where on March Independence, County, at Court of Jackson four-story a the owner of herein), as (appellant
in building is upon which said land building, and the basement hotel Addition in Union Station lots erected, described as $37,137 in the sum judgment a City, Missouri, seeks Kansas making cer together with the cost rents, unaccrued accrued lease, written a under the terms of repairs building, tain to said Mehornay, a former J. North July 5, 1919, and between Josephson Samuel lessor, Frank estate, owner real as of said of, written modifications Josephson, and under certain lessees, N. wherein supplements lease, subsequently made, and to, said judgment sought for such accrued plaintiff further asks to have the and ad repairs, declared rents, and for such and unaccrued superior against all judged prior first, to be lien furniture, fittings, equipment contained in said fixtures together fore with a building hotel and located personal property, equitable sale of said closure lien furniture, fittings equipment. Company, a
The defendants said suit are the North Hotel W. Skeer, Lowry, H. Fred corporation, Hurst, and Ben W. J. E. defendant, Colegrove Secrest, corporate and J. E. individuals. Company, appear North Hotel and defaulted. failed to said actiоn seeking separate answers, The individual defendants aforesaid filed right relief, claiming interest, certain affirmative an title personal deposit and to said a certain property, and in and to original Mehornay, by $17,500 paid lessor, fund of original lessees, Josephson, under of said written the terms agreements, deposit plain- and which or fund is now held tiff, interest, right individual title claimed defend- arising ants out 7, 1922, certain chattel mortgage, dated by defendant, executed mortgagor, favor pay- of defendant, mortgagee, Ben to secure the *5 ment defendant, promissory nineteen certain notes made E. H. Lowry, payable defendant, to the order of said Ben aggregating principal $9,500; sum of individual defend- ants, by separate their mort- herein, pray answers paramount first, prior, be a adjudged to gage be declared fittings and furniture, property, personal upon said superior lien by, field $17,500, deposit or fund against said equipment, and commencement time of the of, at the possession and in plaintiff’s equitable action. the claims of favorable to in a decree
A trial of the action resulted answers presented separate their defendants, the individual as from the appeal court an this herein, plaintiff was allowed to appeal because jurisdiction of the decree so entered. AVe retain parties respective controversy between the pecuniary amount in $7,500, of costs. exclusive exceeds docu- documentary. From such mostly
The evidence herein following glean facts: mentary evidence, we year vacant owner, 1919, of a Mehornay J. in the North lots unimproved City, described as of land Kansas tract Main Addition, 20 in known as No. 2027-29 Union Station Mehornay, July 5, 1919, lessor, Street. On J. North entered said Josephson into with Frank a written lease of said described premises were lessees, Josephson, and Samuel N. wherein assigns twelve leased the said and their for a term of to lessees July ending Fеbruary 1, on years, beginning one-half 31, 1932, agreed month, payable per $1460 an rental of at and for every month day lessees on the first each and to lessor during years. The lease said term twelve and one-half obligated lessor, land a three- Mehornay, to erect on said vacant story having at least basement, building, brick and stone hotel lease, seventy-four guest the terms of said written rooms. Under lessees, agreed lessor, J. Josephson, with the covenanted and rental; Mehornay, pay good care punctually “to take to good repair, premises, keep interior of same usual providential excepted, wear and destruction . . . and re- pair injury damage premises by all done or occasioned to said neglect; expiration hereby created, their and at the of the term by lapse otherwise, whether terminated time or to surrender quiet peaceable let, lessor possession premises hereby of said with all appurtenances fixtures, good condition as same of, damage were taken usual wear and tear and or de- by fire, law, struction proceedings by any providential at means excepted: make, . . and should the lessees fail cause made, any repairs property, to the demised or to said n whichthe ought make, make, lessees and fail to the lessor, with- waiving right, out pay lease, may declare forfeiture this thereof, the cost paid, together add the amount or amounts so per eight per thereon rate of at the annum from cent date of payment, falling installment rent next thereafter due un- *6 agree pay to the and to the same lease, lessees this and consent
der pay- due and becomes day said next installment thereafter lessor on any upon breach of provides that, further The lease able.” right agreements, lessor shall have foregoing “the covenants and hereby thereof, take premises let and reenter tо agents, lessor, for the may . it shall and be lawful . . assigns, election, or their to declare attorneys, successors or at his part, any or either ended, premises, term and to enter into said process cause, the law, . . but for this without ’’ period obligation this lease not cease. pay rent for full shall keep provides lease shall own The further that “the lessees term, premises during the whole of said free of all in said furniture, encumbrance, fittings and fixtures suitable liens and running hotel, property of lessees on said said and all said said may during premises, leased or which the life this at time placed any portion thereof, in premises, lease be said whether subject legal exemption not, and the of fifteen thousand sum per paid separate rent, dollars as advance of a contract terms be parties herewith, between the bound hereto of even date shall subject payment for, to the provided rent and the herein performance lease, of the other terms and conditions of this keep property value, lessees shall said insured for reasonable its (keep) assigned said premises insurance to the lessor said as his may appear.” provi- also contains the further contemplate that organizing sion the lessees incorporating corporation, under the Missouri, occupy operate laws of premises, and, leased event, agreed that it is that the lessees assign right, all their title or interest in the said lease such corporation, agreement with the corporation further that “the said herein, shall assume all of obligations the duties and of the lessees thereupon personal liability lessees, parties to this lease, terminate, shall and lessees herein shall be relieved of all lia- bility hereunder, only and lessor corporation shall hold said and its furniture fixtures, as herein stated, for the fulfillment of the lease; terms of provided this duly assign lessees shall and transfer corрoration to said all fittings furniture, and fixtures installed lessees aforesaid, on the for conduct- ing operating a hotel, provided as aforesaid.” It was further in said lease all covenants and conditions of the lease shall run heirs, with the assigns and successors of parties thereto, respectively. Concurrently with the lease, execution of said parties thereto entered into a collateral written agreement, July 5, 1919, where- deposit $15,000 (mentioned or fund lease) created, agreement requiring “the pay, shall lessees $15,000 to be sum of provided for advance, rental therein lease, accrue under said $15,000 of rental upon the last applied fully part hereof, as if made a is hereto attached and which lease provides collateral further The said written herein.” $15,000 by the lessees that, sum from the date *7 rental, of said maturity lessor, and until the actual accrual to the $15,000 said sum of to interest on pay the lessor shall the lessees semi-annually, that annum, payable per per rate of six cent at the paid by shall be amount which shall so lessor be making monthly rent monthly installments of reduced as the various agreement collateral con- up said shall mature. The $15,000 sum provision lease aforesaid in that, tains the further “should the way terminate, terminated, or be without fault on the corporation, provision lessees in for an named, said lease or assignment (corporation) to is said lessees’ interest which may lessees, made, $15,000, lease sum or much be due said so as repaid corporation, shall be lessees, to said or to said within ten days repayment from date of and for the of said termination, said $15,000, herein, application same, mentioned as hérein provided, lessees, lien corporation, said said shall have a said herein, real estate lease, described and in said until such time as said sum paid parties corporation shall (lessees), be second or said be organized, tо in cash, applica- or until same shall cancelled be upon payment mentioned; being tion rent, as hereinbefore agreed $15,000 if said sum be lessees, shall not returned to option then hereby lessees are authorized at their to continue premises, lease, of said leased under the terms of this until satisfy liquidate same, rentals mentioned herein interest; accrued if option said do not exercise said lessees herein, mentioned lessees, corporation they said to whom assign lease, said hereby given can foreclose the lien to them, if as same were a on said leased the real estate described herein.” September 18, 1919, On Mehornay, lessor, J. North Frank as
Josephson Josephson, N. lessees, Samuel as entered so- into a “Supplement called Original (dated to July 5, Í919), Lease” wherein lessor, Mehornay, agreed to erect four-story and base- ment, brick building, and stone hotel three-story instead of the building basement hotel provided as original July 5, in the lease of 1919, in agreed consideration of which the pay lessor, said lessees J. North Mehornay, as rental for per the sum of $1800 per month $1460 instead original agree- month, provided, ment pay day said sum in advance on the first each throughout month (twelve the life and term of said lease years), one-half and advance paid provided rental to be $17,500, instead July 5, shall original lease of
in the original lease supplement $15,000 provided. as therein supple- instrument express provision that “this contained the except expressly herein that, aforesaid and mental to the lease lease aforesaid provisions changed, all terms modified shall continue in full force and effect.” supplement
Concurrently with execution of the aforesaid con- a collateral into original lease, parties thereto entered 18, 1919, provided which September agreement, tract or by the lessees to deposit, to be madе an advance in the rental contains contract collateral lessor, $15,000 $17,500. Such ‘‘ changes here- or modification following Subject clause: 5, 1919, continue made, July shall the aforesaid full force and effect.” February Mehornay, 2, 1921, lessor,
On J. lessees, Josephson, entered into Josephson Frank Samuel N. Mortgage,” J. North so-called wherein “said written “Consent *8 Mehornay any assigns lessees, said and lawful does consent that the by way may of the lessees, liens, or or either create receive lien mortgage, mortgage, upon of chattel in the of chattel or nature however, rights said equipment, subject, hotel furniture to all and supplemental and liens of the in lease instrument and lessor said agreements relating assigning and thereto, contracts as as to well receiving making or assignment money deposits and reservations of the aforesaid, any rights may as to interest or the lessees have therein. No such given, so or re- lien or other lien created assignment ceived equipment, hotel no and lessees’ rights in concerning same, money deposits, said shall otherwise than expressly subject rights, the lien and liens and all title and interest of the said Ms lessor, assigns, heirs and his and grantees, in, to, upon concerning equipment money and said hotel deposits. expressly And agreed is understood and that the said lessor, J. North Mehornay, his assigns grantees, heirs and and his shall lie under no fit, obligation duty, until such time as he sees to foreclose given lien lease, lessor under said may permit defaults and claims under stand, said lease to multiply accrue and will, at protection against have full all same as said provided until such time as lessor elects to foreclose the lien given or liens him under lease, said and even foreclosure there- of said lessor rights shall all protection given have and afforded him under though said lease as this had instrument not been exe- cuted.”
All the foregoing lease agreements, collateral contrаcts, supplements thereto, duly were acknowledged by respective part- ies, and were promptly filed for record and recorded in the office County, Missouri, at in and for Jackson Recorder of Deeds tlie City. Kansas us, before shown in the record now
Presumably, although such or- Company” was corporation with of “North Hotel the name Missouri, contem- as is ganized incorporated under laws North J. plated by original lease between the aforesaid Josephson, N. Josephson and lessor, as Frank Samuel Mehornay, seemingly assigned all of lessees, lessees, Josephson, and the said agreements, and rights such lease their and interests and to agreements supplemental the various collateral contracts and Company, which aforestated, corporation, to the said North original corporation seemingly place and stead of the stepped into the lessees, Josephson. Company made
Thereafter, April 7, 1922, and on securing nine mortgage, and executed a chattel $9,500, each, aggregating made promissory $500 teen notes Company, Lowry, president E. H. of the North Hotel who was then falling Hurst, notes due on June favor Ben first said 1924, eighteen remaining falling due consecutive *9 City, Missouri, office of the Recorder of Deeds at Kansas and covering in and City, lots 19 and 20 in Station Addition Kansas Union Missouri, being duly assigned by said lease said Frank Josephson Josephson and Company Samuel N. North Hotel to the on day the 19th of January, and filed for in record the office of said of Recorder County, Missouri, Deeds of Jackson at Kansas City, January, 20th together day right, of all title of and interest the said North Hotel in Company the said de posit $17,500 of made connection with said lease the said Josephsons Mehornay, Mehornay,1 with the said and held the said in accordance agreements relating with said lease and said to such deposit, having performance the same been made to seсure of said lease, in or mortgage connection therewith.” The chattel further mortgage (is) subject recites that “this being given to the lien created in said lease from Mehornay Josephsons, subject and the cer mortgage the said
tain made and executed given . . . to secure April —, Sam' Josephson, $25,000, of aggregating the total sum payment of *10 not promptly performed observed, mortgage and then the chattel foreclosed, be mortgagee, and Hurst, Ben or the holder thereby, may pro unpaid notes secured majority of the of a holders including lease and mortgaged said property, “all said ceed sell bidder, “any pur and highest public at vendue to leasehold” and obtain absolute shall have purchasers such sale chaser or at purchased, respec things so sold and good thing title to might foreclosure mortgage provides also The chattel tively.” The through suit in court. appropriate by made an and had by mortgagor, acknowledged mortgage duly said chattel in the and recorded Company, and was filed record for County, City, at Kansas for office of the Recorder of Deeds Jackson April 31, on 1922. Schleinitz, purchased ac- plaintiff-appellant, Rene Yon
quired fee-simple title to the said real estate and leased warranty deed, 15, by 1923, duly acknowl- April dated executed edged by Mehornay plaintiff wife, conveying J. North all 20, Addition, City, lots Union Station in Kansas which war- duly rantv deed was filed for recorded in the office record City, May Recorder of County, Deeds for Jackson at Kansas Concurrently delivery 1923. said execution and original warranty deed to leased nlaint-iff. the owner and lessor Mehornay, assigned plaintiff-appellant J. North all rights and original agreement, supple- lease agreements, mental contract, mortgage, collateral consent by theretofore Mehornay entered into between said J. Frank Josephson, Josephson, and Samuel N. and hereinabove men- described,
tioned and Mehornay and at the same time turned over deposit paid delivered to $17,500 the cash to Me- hornay original lessees, Josephson, under the terms original agreements supplemental and the several and collateral thereto.
On or February, 1924, about the defendant Ben Hurst, valuable consideration assigned sold and defendant, J. W. Skeer, the chattel mortgage aforesaid, made the North Hotel Company, mortgagor, to Ben as mort- together gagee, with the promissory nineteen notes, aggregating .$9,500, described in and secured mortgage. chattel said At the time of the assignment sale and of such promis- sory notes Ben Hurst "W. Skeer, J. promis- none nineteen sory notes was payable. then due and Lowry, The defendant, E. H. original as the maker promissory nineteen
1122 original in extinguishment liability maker of personal of Ms as the Lowry promissory said notes, which affirmative relief defendant prays separate in of written By his answer herein. the terms filed Colegrove August dated F. W. 8, 1922, the defendants purchased Lowry, J. E. Secrest E. H. all of defendant, from capital and, of the Company, stock of Hotel the North corporation, consideration of capital the sale of stock of said Colegrove pay the said the nine- agreed and Secrest assumed and to by teen promissory in and secured the said chattel notes described mortgage April Company Hurst, the North Hotel Ben dated 7, 1922. Wherefore, Colegrove in- Secrest are the defendants sisting upon being liability payment personal relieved of their for the notes, demanding (by way prayed said and are of affirmative relief separate herein) in their mortgage answer chattel filed that said be foreclosed, mortgaged and that property be sold under the terms of the mortgage, proceeds said chattel and that the of such sale applied be payment promissory satisfaction and notes secured by mortgagе. by chattel Likewise, Hurst, the defendant Ben separate his herein, personal answer filed asks be relieved of his liability as promissory by the endorser of the notes secured said chattel mortgage, Skeer, and that the defendant W. J. as the owner of said allowed, promissory notes, required procure be to enforce and payment by sale, satisfaction said notes under fore- closure of the mortgage, personal aforesaid chattel property therein, by described application proceeds of such upon, foreclosure sale of, promissory and in satisfaction notes secured mortgage. said chattel Skeer, by defendant W. J. separate herein, prays answer mortgage that made by North mortgagor, mortgagee, to Ben April 7, 1922, he first, prior declarad to be a superior lien on all of furniture, fittings equipment contained in the leased premises, and plaintiff required apply that be deposit $17, (now plaintiff’s possession), much or as thereof as be necessary, payment, satisfaction and of the several unpaid notes secured mortgage, said chattel which unpaid (amount- notes ing $6,000, thereon) are now owned and held Skeer, said W. J. if or, a sale be furniture, fittings ordered of said and equipment, proceeds applied, of such sale be first, sale, and, costs unpaid unless said *12 thereafter, financially impossible and that would be for the month rental, Company pay per $1800 Hotel to continue to the month North existing agreements, required by the lease and also as terms the pay required satisfy pay to and per $500 the sum of month the promissory nineteen notes secured the chattel 7, 1922, payable. Nego- as those several notes would become due and monthly respecting tiations matter of a in the rental the reduction paid to be the North Hotel for the leased Frerking plaintiff, respective were had at- between and their torneys, making agreement, which in finally rеsulted of written 1924, 2, dated June plaintiff, and between the Von Rene Schleinitz, party part, first said Hotel Com- pany, party part. agreement Such the second written duly acknowledged by respective parties, duly for and was filed in record and recorded office Recorder Deeds at Kansas City August 18, agreement on 1924. The party said recites that the assignee the first part, Schleinitz, Rene Von is the and transferee right, of all title, Mehornay, interest estate of J. North party part, of the second North Hotel Company, is the as- signee right, and transferee of all the title, interest and estate of Josephson Frank Josephson, original and Samuel N. in and to the July 5, 1919, agreement dated July 5, 1919, the collateral dated supplement original September lease, 18, dated 1919, the agreement September collateral 18, 1919, dated and the Consent Mortgage, 2, dated February 1921, each and all of which instruments were made and between J. North Mehornay, original lessor, Josephson Frank N. Josephson, Samuel as the original lessees, parties and that agreed “the hereto have to certain changes and in modifications some of the terms and conditions of the agreements contracts and hereinabove agreement referred to.” The provides that, then “for and in consideration of the mutual coven- agreements ants and forth, hereinafter set further consideration paid the sum of one dollar other, in hand each to . . party part (North Company) the second hereby agrees pay, party (Rene part Schleinitz) Von hereby first agrees accept, following per rent month building for said in- present stead of $1800 rent viz.: month, year For be- year per month; be- for the
ginning 1, 1924, $1400 oí June the sum year per month; for the ginning 1925, $1500 sum of 1, June year per month; for beginning 1926, $1600 1, June sum per month; and for each beginning 1, 1927, $1750 June the sum of beginning 1, 1928, and until the years thereafter, viz.: June month; pay per $1800 sum of expiration lease, of said monthly advance agreed rent in installments stipulated ’’ agreement pro- then day The said of each calendar month. first rent hereinabove “in of the reduction of vides that consideration Company) part (North Hotel provided for, party of the second hereby any every all kind and waives claims of character provided for $15,000 rental advanced paid July 5, under the terms of $17,500 supple- provided and to the increase for thereof referred September ment to lease dated and hereinabove (Rene Schleinitz), party part to. Neither the of the first Von nor heirs, executors, successors, assigns, shall hereafter liable or any any any part $17,500, accountable in manner for of said an thereon, nor shall of the same be considered as rent, (North Company) advance of party nor shall the second *13 any agreed be paid entitled to credit the rental to be herein reason $17,500, provided of said but all herein for rentals shall be payable stipulated. $15,000 due and All herein references to said obligations $17,500, covenants, agreements or all and and between parties interest, hereto, involving or predecessors their said every part thereof, including sums and interest, contained wherever any hereby of to, hereinabove can- instruments referred are celled and party henceforth considered as The of no force or effect. o£ part (North hereby the second Company) expressly Hotel releases discharges and (Lots the lien on the real estate described hereinabove 20, and Addition), agreement Union Station created the said day July, dated the 5th given repayment of and to secure the of $15,000 said sum of $17,500, and the increase of sum said provided by day the contract dated September, the 18th of 1919/’ The said contains the further provisions, “The as follows: party part of (North the second Company) hereby Hotel declares and warrants furniture, fittings, that all the equipment, fixtures and and persоnal all other property party part owned, of second now building located said liens, is free and of clear all claims and every of encumbrances character, except only bind and save chattel April 7, 1922, and recorded in said Recorder of Deeds office on 11, 1922, in Book B-2266 page at 332, Ben Hurst, securing $9,500, the sum of interest, payable monthly each, beginning installments of $500 June party of part (North the second Company) agrees Hotel further be notes, shall the same $500 of of each said party of the The part. first of the party delivered to the cancelled and assign and hereby sell, Company) does part (North Hotel second fittings furniture, all part first said party of the transfer to therein, to placed may be building, now in said equipment con- other terms provided secure rent herein attempt sell, sell, or itself not to lease, of and binds ditions this except in building, of the personal property out remove, said In the event lease. of said conditions terms and accordance with comply with part second party of the failure may any lease, thereof, lessor part conditions of this terms and furniture, fittings, including said property, of said take in the personal property manner said fixtures, equipment, and sell governing Missouri the sale provided the State the laws of pro- mortgage, out personal property under a under of the lessee arising sale indebtedness pay ceeds said expenses together with the costs and lease, of this said the terms purchaser sale, may lessor under sale the become part hereby agrees and binds property. second party said otherwise encumber pledge property, or personal itself said agreed . . It further during this lease. same, the term of majority capital parties hereto that the between the sold, not hereafter be Company Hotel shall stock the said North writing pledged party the consent transferred or without Schleinitz), рarty which consent the part (Kene Von first purchaser provided himself part give, the first binds thereof carry reasonably out able party financially responsible is a agreements lease, terms, contracts all the conditions good including agreement, is also of moral agreements, this (North Company) fur- party character. The of the second itself certificates of stock of said North ther binds to endorse and conditions appropriate an reference to terms which stock had in accordance under a sale hereof, party terms and to endorsement exhibit *14 provisions duly agent. his All part, first or authorized the terms not expressly of all the instruments hereinabove referred to herein changed, be held and considered to modified cancelled shall con- ’’ in full force tinue and effect. here) (respondents evidence behalf the defendants tends (and show none of particularly the defendants the defendant Skeer, assignee J. "W. was then the who holder of the chattel mortgage Company 7, from North Hotel to Ben 1922, Lowry of the nineteen E. promissory notes of H. secured thereby) concerning negotiations was consulted or notified of Frerking plaintiff, Von Schleinitz, leading up between as plaintiff, making agreement between of the aforesaid written 1924; lessor, lessee, 2, dated June Company, the North Hotel tends to and the uncontroverted evidence on behalf of defendants Skeer, had defendants, including W.
show that none of the J. making written of such knowledge respecting information or agreement parties agreement by until such executed after had been thereto, Recorder and had in the office been filed for record City. County, Deeds for Jackson Kansas at 1924, the
After the execution of June of the aforesaid lessee, Company, paid North reduced rental plaintiff Hotel $1400 February, 1925, day a month until on the first which month lessee, payment Company, Hotel defaulted North in the rent Hotel premises. Seemingly, for the the North Com- leased pany paid *15 Frerking, Q. of Mr. What had become I saw Mr. Rasmus.
A. never Company? formerly had been a stockholder who knowledge Rasmus and my to Mr. A. To he sold stock the best stage Q. go much detail at this In into too Mr. Wear. order charge Long, if who was proceedings, you Mr. I will ask the hotel actually possession hotel, did and deliver walk out run it? Q. stay there and you? A. He decline to did. Did he representing Hotel Q. anybody A. else Yes. Was there No, A. hotel? sir. Company you who would take the could find Q. survivor, departed? had Long, . . Mr. who was last (No Q. property? A. you possession Yes. of the hotel And were in question.)” preceding answer made witness ‘‘Q. came to Schleinitz, you Yon when Cross-examination: Mr. City, along March, you Kansas found Hotel posses- the North representative you, Company, sion a didn’t of the North was; a Long? got here, yes. man When name of A. I Q. you possession hotel, And demanded unless the rent was paid, you? gave Well, didn’t A. I think even me a chanee don’t he Q. leaving.’ you simply said, demand that. He am Didn’t ‘I possession and Mr. Harwood if ask me we would turn over you, hotel to I you step you man out Long told this would possession Q. could Yes, you take ? property of the hotel A. sir. And go did then Long possession; down with Mr. pos- and took he turned you? session over to A. Yes, sir.” “Q. being
Re-direct connection examination: In demanded of Mr. Long, Long only isn’t it a fact that Mr. would you got wait until possession, down here to take and that he threat- every you ened to walk day got out unless here? A. He threatened property anyone leave the charge, believe, upon I without request, stayed he days longer.” a few Landry Mr. Harwood, who had attorney plaintiff acted for at the negotiations time of the plaintiff between Frerking, result- ing in the execution plaintiff written between the North Hotel dated June and who is the counsel for present action, testified as follows: “After Mr. got Von Schleinitz down here in I March of made trip to the North Hotel, there found man the’name of Lоng, represented who said he the North as man- ager, as I understood; Long Mr. going said that he was to leave the they any longer were not going operate it, the rent could paid, not be and he induced our remain at solicitation until Mr. Yon get Schleinitz could I here. have no recol- lection of making any formal demand on Long possession, Mr. but on the contrary was urging him stay until Mr. Von Schleinitz get could here rather than lock leaving my hotel doors and it to
1128 Schleinitz) (Yon
client determine then. After he what he would do got signed here, Long (Long) a short withdrawing, and Mr. was he said, agent statement in which simply he for the possession he turned over to Mr. Yon Schleinitz.” following day By (the 1925 instrument, written March to, per the action), addressed commencement the instant sonally made upon, plaintiff served W. and Ben the J. Sheer possession tender of Sheer premises of the to the defendants The possession Hurst. written tender of reads as follows: occupant prop- “The North Hotel the Company, the lessee and erty hnown 2027-29 Mis- Hotel, Street, as North City, Main Kansas souri, having quit pos- surrender indicated its determination to property, undersigned, thereof,. session of said owner last the possession prop- weeh you, you, tendered to of said each of erty, stating you then if terms of that, desired possession under the present lease, occupancy by you, you, or either immediate ac- Thereupon could be obtained. each declined you, you, cept possession. Company the tender of has now The North Hotel possession undersigned premises, surrendered in is possession hereby actual again possession thereof. I tender of the premises you, if you, comply or either desire to terms present lease, give prompt writing ad- kindly me notice me, my dressed to 510 attorneys, Harwood, care of Meredith and Building, Rialto City, given you Kansas Missouri. is This notice I you reason the fact that am advised that are interested purports which to be a' lien on thе furniture premises, unpaid securing notes, I certain of which balance am $6000, informed is I for the further reason that am advised that your the certificates of stock Company are security hands as Nothing collateral for the of said notes. herein expressed contained shall be admission, construed as an either or implied, you, anyone you, else, right, either of or or has claim, or interest, by chattel-mortgage otherwise, whether superior or claims of undersigned.” foregoing The written instrument signed, Schleinitz, “Rene Von Meredith Harwood, ’’ attorneys.
The defendants W. J. Skeer and Ben Hurst declined to take toor possession assume premises. the leased Thereupon plaintiff made repairs certain repaired to the interior of re- placed some of carpets, equipment hotel, furniture and placed charge one Malone in premises, manager of hotel. Malone, evidence shows manager plaintiff, for the has operating been April 1, (and hotel since up the time present January trial action on 15, 1926), making daily reports to plaintiff receipt? and disbursements. According operation receipts, from net income, or evidence, net tbe plaintiff’s relinquished the North time hotel, from the 1925, amounted December until of the leased $2943. equipment building and hotel condition of respect With shape. in terrible place was “The testified: March, down, coming plastering rooms were where There hotel had no Half the hanging off, down. coming paper was wall chairs were The furniture were torn. they shades, either that linens left. no There were draperies. apart. were no falling There *17 way last, the all simply down run Everything had been bursted over- shot, all the toilets plumbing was through. The further Plaintiff testified in.” place to live was no fit flowed. It by making him in expenditures made the reasonable that building and hotel to repairs necessary to the interior a premises in livable hotel put to equipment thereof, in оrder $7,600. aggregated condition, and usable ,a nature) very prof- testimony general slight (of was some There Sheer, per- defendants, the effect that on behalf fered plaintiff put in touch with had haps defendants, others of offered (unnamed) pay per $1000 prospective tenants who would rental a instance, J. premises. for For defendant month the hotel W. him (plaintiff) me, to see and I advised Sheer testified: “He came City they here, been that conditions in Kansas were not like had price be him he impossible that would for rent that hotel at glad asking; was I had three or that would that four tenants Q. (plaintiff) it on $1000 take basis month. What did he say Q. ? A. He would listen was to that kind of a rental. What tbe least rental A. I he said he take? don't think that we would discussed Respecting proffers prospective tenants, that.” such “Q. plaintiff parties approached testified: There were various who you you when February came down latter here March, 1925, sums, who property wanted to take over the at various you I will but ask if anybody you any was there who made definite offer $1000 above for month A. No, the balance sir. term? Q. Isn’t it a fact all that of those offers were basis you that on go in put shape, the hotel in expenditure which would involve the something $17,500? like A. I they don’t all Well. seemed think — me, to be men get that wanted to information from some for reason Q. or another. I asking: What am anybody willing Was pay you $1000 even per month for condition, the hotel in its or were the offers based on the fact you put good the hotel in condition? A. There was one offer, but looking into man I found he ’ had resources, no but Q. was absolutely you Could unreliable. responsible any find party who property, after it would take the was abandoned $1000 at a month in
its then condition? A'. I could not; no.” prospective None of such tenants produced as a witness at the trial by the defendants, any nor was testimony offered defendants respecting’ the financial responsibility (unnamed) such prospеctive tenants. decree entered the trial court contains following find- ings: (1) That there is due the sum $2800 for rent actually accraed and owing original under terms of the lease, as modified supplemental agreement, June 2, 1924; (2) about March 3, the North Hotel Com- pany possession surrendered premises of the leased to the plaintiff, together personal with all belonging property Company contained in said and that on said “plain- date accepted tiff premises the said personal property from the North Hotel Company and then and there entered into immediate and possession exclusive same and has continued possessed now operating all the thereof, while using personal property hotel by for a through personal representatives agents for his sole and therefrom, benefit, accepting exclusive the usufruct derived good and declined accept responsible sundry individuals property period tenants of said balance covered lease, thereby relationship terminating of landlord and ten- *18 existing parties;” (3) that, ant by theretofore between said supplemental agreement, “plaintiff 2, 1924, dated June has kept Hotel Company obtained from the North and has the cash $17,500 in deposit provided of in and referred to for said lease mortgage supplemental agreement, referred in the and chattel April 7, 1922, made to Ben knowledge herein, par- without assent of defendants ticularly mortgage Sheer, chattel defendant W. J. owner of the $6000, to-wit, thereby, of secured of the balance the indebtedness answering defendants depriving and the other thus defendant Sheer rights equity therein under the aforesaid chattel of their herein Hurst, Colgrove, Lowry, (4) mortgage;” defendants upon lien the aforesaid Secrest, W. J. entitled to a Sheer are personal property described $17,500, of sum subject only lien thereon favor to a mortgage aforesaid, thereon, rent, as afore- $2800 of plaintiff for the sum of by adjudged Wherefore, considered, ordered and said. $2800, to- judgment the sum of “plaintiff for have trial court that computed as follows: per per annum gether with six cent interest at thereof, being the due date same February 1, 1925, $1400 from On $1400, 1925, due 1, date to-wit, March balance, from and on the thereof, and incurred, his costs herein and that is and the same $17,500 constitutes a first lien personal said sum of property described in 1 (being defendants’ said Exhibit the chattel April 7, 1922), of and that he have recover same deducting’ together the said sum $2800, aforesaid, with interest as from $17,500 the said sum his possession, aforesaid, subjecting personal property the said public sale at auction to highest for City, bidder cash at the said North Hotel Kansas having given Missouri, days’ public after ten Daily notice in the .Record, published in City, County, giving Kansas Jackson Missouri, sale, place, day year week, terms month, and the hour of the day place, on which such will sale deducting take and after proceeds expense such sale all incident thereto, the costs this action, and his lien aforesaid, pay the amount to defendant W. J. Skeer $6000, the sum of with interest thereon at the rate of per per seven cent annum from (making in all the sum 7, 1926), $7750 to in full June satisfaction said Skeer’s lien proceeds for If, reason, aforesaid. of such sale shall be satisfy judgment insufficient to plaintiff herein, lien of the together expenses herein and sale, costs incident to such to- gether judgment lien Skeer, with the of the defendant, W. J. then, event, shall satisfy deficiency paying $17,500 same in plaintiff’s possession; out said sum of now let herein.” execution issue assigns finding Appellant I. error in and conclusion that, lessee, court trial on or about March possession prem- abandoned and surrendered of the leased accepted anc^ surrender
*ses> aPPeUant premises lessee, leased from the North Hotel Com entered into pany, exclusive possession, op prеmises, and has continued in such exclusive erating using as a hotel his sole and exclusive benefit, by appellant reason of which conduct on the the re existing appellant lation of landlord and tenant theretofore between *19 Appellant North Hotel terminated. the insists matter, question, of an abandonment and that the surrender by tenant, acceptance by premises the the and an thereof the leased parties, landlord, determined from the intention of the must be in wholly the evidence herein is insufficient establish that the tenant, accept appellant surrender from the of the a tention finding conclusion of Company, and therefore the respecting supported by such matter is the evi the trial court hand, all that, other insist under the evi Respondents, on the dence. a of the is clear that there was surrender ease, in the it dence 1132 by the. acceptance thereof tenant, and premises by an
leased relation which law, consequence of operation by appellant, discharge resulting terminated, with ivas and tenant of landlord from the tenant, North release of term of the of the remainder for the monthly rents unaccrued of all leasé. premises by a surrender of the leased tenant,
While and an ac- by landlord, ceptance by thereof must be consummated mutual agreement yet parties, may consent and accomplished be by implied, by express, well parties. as If ac- implied agreement complished by parties, it is said to -be done law, operation parties implied of- and the intention of is be respective conduct of parties, from the acts and as disclosed “A attending by operation facts circumstances. surrender parties express occurs where do some of law without surrender necessarily implied they from which it is act or acts that have both agreed to consider surrender which are neces- made—acts sarily inconsistent with relation of and ten- the continued landlord frequently ant. While it has been said that whether a lease has been question by operation par- of law is of intention of the terminated a nevertheless, agreement may mutual im- ties, is, this heldjthat principle estoppel parties, from the plied acts of independently of, contrary to, and even their actual intent. sur- render or of a written lease be inferred abandonment parties.” C. J. “An abandon- conduct of acts and [35 1086.] by the an of the sur- acceptance tenant and ment of resumption the landlord a render constitute by operation of law.” C. J. surrender 1089.] [35 244, 248, J., P. Smith, Lammers, App. 60 Mo. In v. Churchill City “A Appeals, surrender, Court of speaking for the Kansas said: parties, express place ivithout by operation law, takes when agreed they to con implies which that both surrender, act do some . . to be The rule of law said made. surrender as sider the agreement on equivalent to an which are acts settled that now landlord to abandon, the tenant part of amount to a surrender the demised possession of resume A Allen, sur 14 Whipple, v. of law. operation 177.] [Talbot and conduct the circumstances inferred from bemay render surrender they agree consider’ a evincing both parties, 234; White, Beall 94 N. S. App. v. Roll, Mo. v. [Huling made. 453; Fry Partridge, Y. v. Ill. 30 N. Terhune, v. 382; Bedford 111 Mass. Brock, McGlynn v. 51; 219.]” holding sur- are accord authorities juristic While law occur when acts by operation acceptance and an render
1133 both the landlord and conduct of and the tenant such are as to be equivalent of a mutual on part their to treat the sur- by by as made the tenant and accepted landlord, render respecting authorities are somewhat in conflict particular what acts or conduct the landlord are sufficient to raise the acquiesced implication landlord has and consented to a premises by surrender leased the tenant. It appears to be the weight juristic howеver, that, in authority, prevent order to an acceptance by operation surrender law, a the landlord must, convey act, either word or tenant notice that the land- premises possession lord resumes for the tenant, benefit and not for the benefit of the landlord. prevailing Ruling rule in Law, is thus stated Case pages
970-972, 482, 483: “If sections the landlord re-enters and resumes enjoyment beneficial use and thereby he term- right so inates far as his to recover subsequently accru- ing concerned; rents will re-entry is but' his not affect the tenant’s liability re-entry. for accrued at the rent time such ... In possession premises case landlord resumes the abandoned relets, attempts relet, them on account, his own under such it circumstances that is fair to assume that he does not intend to any part look for the future thereof, tenant rent he thus accepts obligation. surrender relieves the tenant his . According . broad majority . view taken country, upon premises the abandonment of cases this the landlord refuse to accept surrender, tenant no- after so, tice to the lessee Ms intention to do relet the for the obtainable, and recover the best rent between the difference rent re- subsequent rent received from served the lease tenant. according . to the better view, jurisdiction, . even But reletting miost be done the landlord notice to the tenant damages, that it latter’s to minimize is aoid benefit for relinquish (Italics his claim to the that the landlord does rent.” own.) our
Thus, by Judge A. Jones, is Leonard standard his treatise (1906 Ed.), pages Law on the of Landlord Tenant section “ notify 616-617: It is essential that the landlord his tenant responsibility deficiency So, in rent will continue. where leaving recognized surrender, the tenant on the lease and offered to lessee, and the landlord entered and without notice the former relet operated by operation pre- surrender of law. It this as a given up hope all hold sumed that the landlord has the tenant for when into the balance of rent he enters and deals with the property So where a tenant as an owner. vacated voluntarily *21 delivered,
premises expiration keys before of the term and to the the request, during the at the landlord latter’s who retained them implied premises rent, the advertised for term the an surrender arose by operation of law. ... In nothing ease there to indicate a is purpose part resuming possession the of landlord in hold the to liable tenant for rent or to lease to others on account ten- merely ant, accepts he the abandonment a surrender lease- as thereby puts hold interests and an end to contract.” In 26 146 Co., App. 371, 1056, Baker v. Eilers Music Cal. Pac. “A 1057, brought by it is said: lease to an the surrender end acquiscence such surrender the leased acquiescence perhaps the lessor. Such is best evidenced his tak again ing possession property assuming all of the author ity possession. lessor, A over it of an owner ... who takes possession property tenant, him delivered and does so to his thereby unqualifiedly, releases his tenant.” Renard, 230, 233, Supreme v. 175 Court of In Bernard Cal. v. 31 California, Banc, quotes Rehkopf Wirz, approvingly en 695, App. follows: “Where tenant abandons the leased Cal. as a may accept possession property repudiates lease, the landlord same, property for the benefit the tenant and relet the damages thereupon may maintain action for for the differ an good property he faith to let the for ence between what was able agreement. provided paid under the lease and the amount to be 602, 162 123 Pac. But Higginson, v. Cal. a lessor [Bradbury 797.] give that course in some manner to follow must who chooses possession the bene accepting he is for information that (cid:127)lessee right own for his benefit. tenant, and in his own fit of the property delivered to him If lessor takes thereby unqualifiedly, he releases the tenаnt. and does so tenant App. 1056; 146 Pac. Co., 26 Cal. Wel Music v. Eilers [Baker unqualified taking 27 An Hess, 90 Pac. come v. Cal. 369.] reletting premises by him own as possession by lessor and continuing with the force of the is inconsistent er new tenants to original lease.” evidentiary in- upon the facts to the
A somewhat similar ease Packing Fischer, App. 639, v. Mo. Co. Producers stant case City Appeals. by the Court recently ruled Kansas 283 W. S. defendants, sureties, given by bond, a action performance by the lessee of a lease between secure faithful - Branson, lessee. Plaintiff leased to lessor, and one plaintiff, packing years, plant, of its used two a term of for a Branson, required lessee, Bran- ice-manufacturing plant. The for an refrigeration furnish for cer- plant, ice operate son, cold-storage plaintiff’s packing tain rooms in tlie plant and keep required temperatures, tbe same at certain and also to fnrnisli steam packing plant operation plaintiff’s for the machinery and operation heating packing system plant. While lessee, under the terms of lease, obligated was not pay cash rental for the use the ice plant, the lessee, agreed however, pay per $250 as rent sum of month for the use of a deep well by plaintiff pump, furnished purpose lessor for the of supply- ing water for the manufacture of ice lessee, Branson. Bran- defaulted in the monthly son rent for the use pump deep well, plant. abandoned the ice Said court, ruling the abandonment and surrender of prem- the leased *22 accepted by ises lessee had been plaintiff by operation the the of ‘‘ plant' part The ice packing law: was a plant and form- the equipment only er and its were the means available for the furnish- refrigeration and to ing packing plant; of steam the it could not be refrigeration operated without and steam. This was known to the contemplation defendant within the of parties and was the at the time lease and bond were executed. It was the also known if that refrigeration the should fail or cease to furnish lessee or steam, plain- compelled possession to plant tiff would be take of the ice op- packing plant, same or shut down its erate the and it was in con- templation parties the at time the lease and bond were exe- plaintiff cuted that plant and delivered would take over the ice in the refrigeration event that Branson to ceased furnish . . steam. . possession plant took of ice Branson the under the on June 24, lease 1923, any pay deep but did rent for the pump well, not and in departed 1923, Sedalia, September, leaving plant the ice operation, full and has not been heard of since. He made no ar- rangements x>ayment further no employees, for the and left fuel operate which plant. with the ice Plaintiff was forced to re- operate possession plant take September ice the same. the On option 13, 1923, plaintiff exercised its to forfeit the lease and took possession property the per- because the failure of Branson to pay form conditions said rent described in the lease. Plaintiff possession operation of plant. continued in the the ice has The plant part packing a premises were under terms of give required expert the lease the lessee was technical and service property not such plaintiff. nature could that no effort been re-rented and for this reason has made to re-rent it. monthly $250 pay payments. failed to . . Branson however, plaintiff, upon Defendants, that claim the abandonment of equipment Branson, having premises forfeited the lease operated premises plant taken ice Ü36
machinery, September 1923; elected to terminate lease on 13, plaintiff’s conduct terminated the lease it all unaccrued stipulatiоns liabilities of lessee covenants and in the term; dependent upon lease principal continuance that the not; liable for are being these,- sureties is now suing damages re-entry, for suffered after and cannot recover the same, damage items but the that it recover ... is only accruing previous re-entry. rent and liabilities We question but think there is no that defendants’ contention well authorities).” (citing taken 723, Packing Co.,
In Armour Co. v. Des Moines Pork 116 Iowa, N. W. it is held who, that a landlord after the abandon- tenant, pos- ment the leased re-enters takes indicating to himself, purpose session for without the tenant a rent, accepts hold him for the abandonment as surrender of a by operation of law. the court “In a Said therein: part nothing purpose case there is to indicate land- resuming possession lord in to hold the tenant liable for rent merely accepts account of tenant. He to lease to others on thereby interests, leasehold abandonment a surrender an the contract.” puts end to Preisler, Supp. 874, plaintiff v. 167 N. Y. sued
In Saracena monthly prem- rents for leased recover the unacerued certain adjoining bath, prem- for a Turkish which ises used were *23 having by plaintiff shop, premises barber the leased ises used a by possession and use there- the defendants and the been abandoned plaintiff. court, denying having by Said the of been resumed monthly the rents for balance recovery for unaccrued plaintiff a the that was no offer on the lease: “It is true there of the term of the lease, to terminate which offer as such defendants the part of the premises, the by plaintiff; but an abandonment of accepted the was plaintiff rent, upon by the when acted coupled pay a refusal for control that he intended resume to show in such manner as is out-going tenants, of the benefit the benefit, for own and not his operation Clearly of a landlord by law. surrender equivalent and, tenant, а possession premises abandoned of resume cannot the benefit, hold tenant personal his own premises for using the while question fact a of whether Ordinarily in such cases it is for rent. benefit, relet as his own or to possession for resumed landlord the depends upon surround- issue all of the the tenant, agent the for however, is an item of there not case, In this ing circumstances. the that did could inferred which it evidence benefit.” exclusive his own for resume
113? Fidelity Co., App. 309, 315, Mo. S. In v. American Sharon Judge EllisoN, City speaking Court the late for the Kansas W. Appeals, bearing review numerous the upon after a authorities law subject consideration, announced: “'But the seems the under (at same) though will same we concede it is the even least lessee rightfully the landlord at fault and enter and declare a compensation occupation forfeiture. is a for the use and Kent contrary premises and, in the provision, absence when landlord, ceases, So, rent does also. if the confronted with latter knowing remedies, elects lessee’s default and his to exercise that which tenancy destroys relation, lease, he terminates avoids right any accruing deprives himself of to rent after his severance authorities).” taking property (citing back the relation and herein, cited num- Appellant, support of his claim of error has State, jurisdic- this and of erous the courts of other decisions tions, premises to the effect that, abandonment the leased tenant, permit premises has election either to the landlord term, recovery until of the for remain vacant end then sue stipulated rents, may mitigate getting he the loss of rents premises; that, what out of implied he can when an intention landlord) (by accept of the acts reason and conduct premises doing leased presumed surrender of the cannot be without sense, implication violence to reason and common or inference of support. carefully intention fails for We want have read considered all of appellant, the several authorities cited but an analysis that, appears thereof cases, discloses most cited landlord, resuming possession the abandoned against protested resuming possession tenant either relieving liability payment for future the tenant rents, and rmaccrued or informed the tenant landlord for resuming possession benefit, for the tenant, account, of the and would look to the tenant any deficiency of re- stipulated loss rents in the event of a letting premises. evidence, any
We have searched record herein vain for Schleinitz, tending show that the slight, plaintiff, however Yon agent behalf, protested lessee, on his the tenant and *24 against Company, Hotel leased the abandonment surrender of the tenant, Schleinitz, premises, plaintiff, or that Yon informed representative Company, any agent thereof, North or that Hotel or premises plaintiff possession resumed of leased for the benefit Company, and account the North and would look to such Hotel any deficiency corporate payment for the loss or tenant stipulated that, was plaintiff is true testified when he rents. It that
advised that the North Hotel Company abandoning premises was and he came City to Nansas from Milwaukee, in February March, or 1925, to possession resume of the premises, he found Long, one an employee agent of the North Hotel in charge of Company, premises, hotel plaintiff that any could not person find other representing the North Hotel Company who would take the hotel. there But a plaintiff scintilla any evidence that protest made against Long resuming possession of premises, plaintiff or that informed Long, agent representative or notified as the of the North Company, plaintiff taking possession was of the premises for the benefit and account of the North Hotel Comрany, and would hold the North Hotel Company, tenant, liable for the any deficiency loss or of the future unaccrued rents. plaintiff While the evidence shows that made a written tender of possession premises Greer, defendants Hurst and neither of those individuals was shown to be evidence an agent officer, Company (at stockholder of the North Hotel the time possession), of the written tender of and consequently a tender possession to either of the said individuals in no was sense tender corporate tenant, Company. Furthermore, North Hotel possession written tender made defendants Hurst Greer contains recital or plaintiff no statement effect that has re- possession premises protest, sumed actual the hotel under or that possession premises by plaintiff is taken and resumed for the Greer, benefit and account Hurst and or of the tenant, plaintiff hold Company, or that will or North Hotel Greer, deficiency Company, liable for loss of the unaccrued and show, future rents. The. however, plaintiff evidence does did possession premises, take actual and exclusive plain- and that placed charge tiff, custody one Malone in manager for plaintiff, plaintiff, since which date the through manager, Malone, operated hotel, has as the making thereof, daily reports plaintiff of owner Malone receipts operation and disbursements in the of the hotel. ample
We think there is evidence sufficient which to finding predicate conclusion trial chancellor that tenant, of the leased surrender accepted appellant landlord, Von law, Sehleinitz, by operation of and that the relation of landlord terminated, thereby consequence and tenant was of which appellant recovery entitled to stipulated is not monthly Appellant’s of March, rents from after month 1925. assignment of error must therefore be denied.
II. Appellant assigns error finding in the and cоnclusion of the trial court deposit that the $17,500 of (paid original to the lessor, Mehornay, by original lessees, Josephson, as advanced rental original under the terms of' the lease and the agreements several collateral and supplemental thereto, deposit and which is now held herein) appellant subject is to the lien of the chattel
mor^'ag'e 1922, given by the North Hotel Corn- Pany, mortgagor, to Ben as mortgagee, which mortgage chattel assigned has been to the ‘W. defendant J. Sheer, present who is the owner and holder thereof. Appellant’s grounded of claim error would seem upon to be provision agreement contained the collateral July of 5, 1919', wherein original deposit $15,000 (later of $17,500) increased created, provision which was that, is to effect “should the lease any way terminate, aforesaid in or terminated, be without fault said, part named, on the the lessees in lease corporation or of of (North provision Company), assignment Hotel for an of lessees’ (corporation) to which inis said made, the said sum $15,000 (increased of $17,500), or so much of same be due lessees, repaid lessees, to said corporation (North shall or said Appellant seemingly argues Company,” that, Hotel etc. inasmuch afore-quoted provision agreement July collateral as the deposit $17,500 1919, requires repaid by that the said shall be original original or lessor, Mehornay, assigns, lessees, Josephson, corporate or to Hotel assignee, Company, only their North part the event the lease be terminated without on the that fault lessees, Josephson, corporate assignee, their clearly Company, appears and inasmuch it the lease was premises by terminated because the leased the abandonment corporate lessee, Company, and therefore obligation through fault, is no terminated the lessee’s there part appellant repay to North or whatsoever liability through any party claiming said or under and $17,500. Appellant corporation, deposit further said argues Mortgage,” February 2, more that the “Consent to original original ’lessor, Mehornay, between lessees, specifically provides ‘no Josephson, equip hotel lien, given, lien, or other created received so concerning same, rights assignment lessees’ ment, no subject expressly money deposits, otherwise than shall be rights, of the said title, and interest the lien and liens and all in, to, grantees, (Mehornay), assigns, and his lessor his heirs and money deposits.” concerning equipment hotel that, under terms appellant Hence, seemingly claimed provisions July the collateral 1919. and the *26 Mortgage,” February 2, "Consent to North 1921, the Hotel Company mortgage right had no or to lien authority create a chattel against deposit mortgage and the of $17,500,without such chattel being subject right lien lessor, Mehornay, to the of and the inferior assignee and appellant herein, his to hold grantee, and the and money obligation repay liability retain to deposit, such without except only Company, the North in the event that same the Hotel part lessee, North the lease be terminated without on the of the fault stipulated occurred, Hotel which not- and cannot Company, event has original 1919, provides "the July 5, occur. The lease of now (later $17,500) rent, as advance paid of $15',000 sum increased rent subject . .- shall bound of the other terms and provided for, performance herein ’’ 1922, lease; mortgage April 7, the chattel conditions of this "assign, mortgagor, did which Company, the North Hotel as mortgagee, ... all Ben as transfer and over set Company in the right, North Hotel title and interest of the said specific provision that "this deposit $17,500”, contains the subject in said lease from (is) given lien created mortgage being Mehornay (the) Josephsons.” parties respective in and to and interests of rights, claims deposit the above- $17,500 fixed and determined were thus prior to June
quoted instruments, 1924. provisions of aforesaid Schleinitz, Von however, appellant, Rene date, On the latter entered into a written lessee, lessor, North Hotel agreed Schleinitz, re- whereby lessor, Rene Von agreement, paid by to be monthly rentals the amount duction premises, in consideration Company leased for the every any claim of Company waived and all Hotel the North which $17,500, deposit rental advanced kind and in and to nature appellant agreed by between further wherein it was $17,500, and to said references Company that "all North Hotel hereto, parties obligations between agreements covenants, all ($17,500) and involving said interest, sum predecessors or their any prior lease contained wherever thereof,” every hereby contracts, "are supplemental agreements, and collateral effect.” The no force as of considered and henceforth cancelled to the Company) North (Von Schleinitz and parties two right had 1924, unquestionably agreement June written ownership themselves) respecting (as between to contract their agreement on $17,500, but deposit disposition affect Skeer, right, J.W. the defendant not bind part could defendant deposit) to such or interest money (in and claim Skeer, W. J. assignee of the chattel mortgage given by the North Hotel Company April 7, 1922, and as the owner of the promissory several thereby. notes secured The claim and interest of the defendant W. J. Skeer, in and deposit of $17,500, is fixed determined the chattel April 7, 1922, and such claim and interest of deposit Skeer and to $17,500 was affected, diminished, or enlarged, by agreement the written 2, 1924, by June appellant between Hotel Com- pany, agreement to which latter Skeer was not a party, and to the making of which agreement give he did not consent, and which agreement seemingly knowledge. By made without his their written aрpellant June 2, and the North (from expunged cancelled and prior pre- existing agreements contracts) and collateral all references *27 (therein contained) deposit together to the of $17,500, with all covenants, agreements obligations said two named between parties, predecessors interest, involving or their deposit said every part thereof, and any references, thereafter agree- convenants, obligations respecting money ments and such deposit, as contained in prior the instruments, were to be of no further force or effect. Having agreed expunction to a cancellation and of all references, covenants, agreements obligations prior contained in the respect- instruments ing money deposit, appellant, said Yon Sehleinitz, the cannot now right, claim covenant, the under a cancelled to withhold and retain money deposit (because through such of the termination of the lease the lessee, Company) the North Hotel from the lien of free of femit mortgage April 7, right, 1922. claim or chattel of The ,J. (in deposit $17,500) Skeer, W. and to defendant unpaid secured the chattel by the owner and holder of the notes as however, limited, mortgage April 7, 1922, is determinable and by provisions mortgage, which terms and the chattel instrument subject “given lien said is to the created lease recites it original Mehornay Mehornay Josephson.” lease from from The (increased $15,000 $17,500) Josephson provides that the “sum of subject by and . shall be bound . paid as advance rent acceptance by The provided herein for.” payment of the rent law) of surrender of the leased appellant (by operation of Company, terminated the rela- tenant, North Hotel existing between said theretofore of landlord and tenant tion North Hotel was consequence which the parties, accruing stipulated rents liability payment its for relieved of by virtuе of deposit $17,500, 1925. March, the month of after agreement, bound for original provisions ($2800) rents February of the accrued months mortgage April 7, 1922, insofar March, 1925, and defendant, mortgage lien in favor of such chattel constitutes a subject deposit, Sheer, against inferior and money is appellant ($2800). is lien of for the accrued rents Such finding of the trial and conclusion substance and effect of the trial finding chancellor chancellor. The and conclusion of assignment claim of error, is matter free error made denied. appellant must be III. Appellant urges furthermore mortgage, the chattel executed the North Company, mortgagor, in favor of Ben Hurst, as mortgagee, which chattel mortgage and the promissory thereby notes secured sold, have been assigned and transferred, for a valuable consideration, maturity before the of said notes, to the J. Sheer,
defendant W. null void, is and is there- against fore not a valid or enforcible furniture, lien Company, against North Hotel equipment of the fittings and for the reason that the chattel deposit $17,500, signed (which on behalf of the North Lowry, president corporation) IT. acknowledged, by E. as' given by corporation, made and its face that was shows personal Company, to indebtedness its secure Lowry, person, H. president, E. to a third then stockholder and Lowry, of said made promissory *28 is mortgage; it that said chattel secured ment of which notes is mortgage mortgagor pledge its to and corporate ultra vires the personal corporate property assets to secure and especially officers, when stockholders and its one of indebtedness the stock- personal indebtedness of appear such that it is made such stock- purchase, arises corporation out holder corporation, capital of the person, stock third of the from such holder some corporation received appear that it or when does mortgage the chattel by reason of pecuniary benefit or consideration court that the trial urged by appellant Hence, transaction. 7, mortgage finding holding the chattel that and erred furniture, subsisting against the lien a and 1922, valid constitutes against Company, and the North equipment of fittings and $17,500. deposit by in- appellant foregoing contention counter the Respondents by presented or question was raised or sisting such issue no that was tried such issue no respective that parties, pleadings filed petition, or bill, chancellor below. The submitted to the
1143 by the appellant, neither specifically avers that the execution and delivery of mortgage chattel the North was an act corporation, ultra vires the petition nor does the allege and any set out facts from which corporation an act ultra vires the may be inferred. petition charge Nor does the that the North Hotel Com- pany no received pecuniary benefit consideration for the execution delivery mortgage. chattel separate While the answers several plead defendants execution, delivery recording mortgage, chattel and aver that the constitutes paramount superior a upon lien furniture, fittings equip- ment of the North deposit Hotel Company, $17,500, the record does not plaintiff show that the and appellant reply filed a separate Appellant answers. insists, however, that a reply separate answers, to the general denial, the nature of a though Should deemed as filed submission of the cause nisi. juristic
According
weight
authority,
plea
or defense
special,
of ultra
is affirmative
vires
specifically
and must be
pleaded in order to
841,
plea
be available.
C. J.
Such
[14a
842.]
general
or defense
ap
cannot be raised
a
denial.
Such
[Idem.]
pears
prevailing
jurisdiction.
be the
and settled rule
[Young
this
Men’s Christian
475,
Assn. v.
82 Mo.
481;
Dubach,
Glendale Lumber
v.
Co.,
App.
Co.
Beekman
152
386,
Lumber
Mo.
same
392.]
prevails
rule
foreign jurisdictions.
in other
Carlson,
v.
[Mehelin
Idaho, 742,
755, 762;
Iowa,
17
107 Pac.
King,
Commercial Bank v.
47
64;
Bank &
Idaho,
Co. v. First
40
Bank,
Wallace
Trust
National
712, 237
respectable judical
Pac.
Furthermore,
are
there
287.]
(such
authorities
the effect
corporation
creditor
herein)
permitted
question
will
corporate
not be
or attack a
merely
ground
transaction
on the
that such transaction is ultra vires
corporation,
specially
affirmatively
unless
creditor
pleads
proves
fraudulently
ultra vires transaction
conceived
purpose
avoiding
accomplished
defeating
corporate
owing
plea
creditor,
or defense of ultra
debt
vires
corporation
being usually
itself,
restricted and available
only
case,
stockholders,
proper
sovereignty
in a
or,
to its
to the State
corporate
which
charter and
existence.
it obtained its
[Force
866;
Age-Herald Company,
v.
Ala.
v.
So.
Brent
281;
Simpson,
Memphis
Security
As a who resists or defends an in- contract, upon ground strument in the nature of a of want consideration, affirmatively must and specially plead no con- sideration, party and such cannot avail himself of such defense to general general issue, denial; the instrument under the or a especially applicable rule imports where the instrument a principle consideration. C. J. is said to be 740-741.] [13 recognized universally mortgage implies, chattel imports, a a consideration, so mortgage that the mere introduction of chattel a prima-facie given by in evidence constitutes evidence that was it mortgagor moving for consideration mortgagor. a to the Unless by evidence, prima-facie presumption rebutted of consideration is not Thus, overthrown. C. J. Strop Hughes, v. 451.] [11 App. 555, replevin Mo. plaintiff personal wherein sued for 547, basing upon property, mortgage, covering his claim a chattel property, by corporate mortgagor, executed and delivered a defendant, right personal who claimed property virtue of a seizure under'a writ attachment issued in brought by against corporate a suit a creditor con- mortgagor, mortgage consideration, tended that the chattel was void want for disposing “In it of defendant’s contention: was court ’’ contrary, implies a consideration. proof the absence to the the law opinion mortgage chattel We are of that the given by Ben Company, mortgagor, the North mortgagee, imports moving and benefit a consideration mortgagor plaintiff and and that it devolved therefor, prima-facie presumption appellant, Schleinitz, 'Von to overthrow the mortgage by evi- of consideration such chattel execution of pro- presumption. in rebuttal of the No such evidence dence court, opinion, appellant herein. in our ferred- The trial finding did not err in and conclusion that the assigned W. J. April 7, to, by, defendant owned fittings subsisting furniture, is a valid lien Skeer, money deposit upon the equipment assignment $17,500. Appellant’s of error must be denied. IV. Lastly, appellant is contended that the trial court erred allowing recovery judgment for the amount money expended restoring him the hotel to livable *31 condition, adjudging and usable and in not same to be the a superior against
paramount furniture, and lien the fittings equipment against hotel, and of the and the deposit $17,500. of provisions Under terms and the of original original July Josephson, the of lessees, lease the the assignors predecessors subsequent tenant, and in interest of the the Company, landlord, covenanted with and his assigns good keep the grantees, premises, and “to of said and take care good providential interior repair, of same in usual and destruc- wear tion . . . excepted, repair injury damage and to all or done or premises by neglect; expiration to said and the occasioned their at lapse . . . by term whether terminated of time or other- , wise, premises to . . possession to lessor . of said surrender good hereby let, appurtenances fixtures, with all condition and possession of, as same when wear tear and dam- were taken usual by providential age by fire, proceedings lаw, at or destruction excepted; make, . . . lessees fail means and should the to any repairs made, premises, prop- to said cause be to the demised ought make, fail to the erty, make, which the lessees lessor may pay thereof, . . cost and add the amount or amounts the so eight together per the of paid, per with thereon at rate cent payment, date of to the installment of next annum from rent there- original further lease.” The falling after due under this fittings all furniture, fixtures, the of provides that the together property upon the the leased the of lessees (increased $15,000 $17,500), be money “shall bound deposit of for, by subject provided of rent herein payment the performance other terms and this the the conditions lease.” of of of that there a breach the plaintiff’s tended to show evidence tenant, repair of the lessee above-quoted the covenant to that, of the abandonment Company, at the time North Hotel by tenant, premises the of such and surrender for use. If disrepair as to unfit premises were in such state a repair occurred covenant fact, breach such be then the premises by appel- acceptance of the surrender of prior to the obligation pay liability or the tenant lant, pecuniary which repairs landlord for the cost and reimburse with interest made, together make, ought to have failed to tenant eight per from date per annum at cent thereon by acceptance before the repairs landlord, arose cost such relation premises, and before the the landlord of surrender landlord and tenant operation was terminated by of law. In words, pecuniary other liability of tenant, arising out its breach of the covenant repair prem- ises, had prior accrued surrender of the tenant, and acceptance landlord, thereof although the amount and extent of such pecuniary liability of the tenant was not determinable until after the relation of landlord and tenant was by operation terminated law, until appellant had caused necessary repairs made, paid to be and had the cost thereof. The appellant, clearly opinion, our entitled to recovery of- the repairs, together amount of the cost of the with interest thereon as stipulated original necessary lease, made the breach tenant covenant to repair, and to have amount declared paramount to be a superior fittings lien the furniture, equipment hotel, deposit $17,500. The trial *32 failing chancellor therefore erred in to and allow include such recovery in judgment nisi, failing the and in and to declare ad- judge by (in the expended amount appellant causing made such to be repairs to premises tenant, the interior of the as the obliged Company, required was and to make under the covenants of lease) the paramount constitute superior and upon the lien personal property $17,500, deposit of property which was bound original under of the terms the performance for the lease repair. covenant to The evidence on appellant behalf of was to the effect that he had expended approximate the sum $7,600 “reconditioning” the premises, hotel appears but it from the evidence that considerable portion expended replacement repair of srrch sum was the , furniture, carpets, equipment and similar of the hotel. We find no covenant requiring obligating lease lessee keep furniture, fittings equipment good repair; hotel in nor do find provision authorizing we lease lessor repairs to, replacements make of, property. such personal part of good covenant on the “to care of said lessee take was (hotel) good premises, keep repair, interior same reрair premises injury damage occasioned to said all done or neglect.” judgment reversed, their Inasmuch as misi must be remanded, of the trial to include in cause for failure court judgment recovery plaintiff of an allowance and expended the tenant’s breach of amount him reason of should ascertain and repaii, the circuit court therefore covenant to evidence, necessary, determine, additional if be from further and such causing actually expended by to be made the amount necessary the hotel repairs (only) interior of 1148 obliged pay
lessee, for, to make was Company, thereupon original 5, July 1919, under the terms of the Schleinitz, a Yon allow Rene plaintiff, the circuit should court together judgment amount, recovery ascertained for such eight per per cent annum from interest thereon at the rate of repairs, payment by plaintiff necessary date of cost of such adjudge and and should against the defendant North upon against first lien the same to and to constitute a declare fittings equipment contained within the described furniture, money deposit $17,500. against the hotel Furthermore, judgment, entered the circuit decree and recovery Skeer a the defendant W. J. court on June allows (7%) April per annum from per cent interest at the rate seven (the mortgage from North Hotel 7, 1922 of the chattel date $6000, Hurst), principal sum computed to Ben unpaid principal twelve notes representing the each, mortgage, such interest amount- $500 secured said chattel mortgage of of the chattel ing According $1750. to the terms thereby bore interest April 7, 1922, the *33 paid. Appellant thereto, 7, prior was 1924, and October due of the circuit court judgment therefore, decree and that the insists, evidence, allowing wholly unsupported is erroneous, principal upon amount of Skeer, J. interest W. the defendant date, April computed their mortgage notes unpaid chattel in- last semi-annual being computed from the 7, 1922, instead of default, being prior date same date terest correct in such appellant appear would is 7, 1924. It October The circuit court record discloses. present contention, so far as any interest has whether determine ascertain and should therefore mortgage unpaid chattel amount of the upon principal paid been April notes, of said and delivery execution since the date of the notes only to J. is entitled W. Skeer and, so, if defendant 1922, then the 7, unpaid amount of the principal recovery interest date which the from the last computed mortgage notes chattel herein, words, appellant paid; in other thereon Rene Yon Schleinitz, is entitled to a credit of whatever amount paid upon interest has been the principal amount of the unpaid notes ly, until day one each on the of each month thereafter all fifteenth paid, by of said notes of which chattel mort have been terms gage mortgagor mortgage, did transfer, assign, convey Hurst, over said Ben as mort set gagee, furniture, furnishings, fittings equip all of the and other ment contained or that thereafter be leased therein, brought whereby said North Hotel wherein “assign, did also transfer and set over to Ben mortgagee, thereby the certain lease and leasehold created from Mehornay Josephson J. North Josephson, to Frank N. Samuel July page in 'Book B-1989 at in the 1919. recorded
Notes
notes certain $19',500, and of sum is now due the sum which total there and leasehold property including personal covering and all of Upon described. covered, and hereinbefore herein included mortgage this $19,500, then payment of indebtedness of the said personal mortgage against the shall become the lien the first first that event property described. In the and the leasehold hereinbefore indebted payment any part or of said default be made in the of all right privilege рaying of ness, the said Ben Hurst shall have all exercise (and) thereupon said shall be entitled indebtedness rights mortgage for the enforcement given and methods in said thereby. mortgage payment This of the indebtedness secured given meeting all stock pursuance passed at a resolution at company, meeting all of said holders and at a the directors obligations for a time while it its was free debt other than lease, in payment of rent aforesaid performance under the respect default, which obli it and from the no manner gation given mortgage incurred said chattel heretofore said Josephson, Sam provides which this mort resolution that gage (s) binding shall against be and effective as the stockholder said company, owning acquiring stock, whether now or hereafter is intended, if legally may binding effective, it future as to all purchasers of corporation.” pro In the terms and visions of such mortgage, mortgagor, chattel North Hotel Com pany, rep covenanted to and with mortgagee, Ben and his assigns, fully paid, resentatives and are that “until all of said notes it will pay fully keep, per lease, all rents reserved under said thereof; form and it that observe all of the and conditions terms will operate, business, continue to running going as a the hotel now will being business premises; carried on in said hotel it keep order, all of equipment good said furniture and condition and repair thereto, and will any injuries replace any all good all that equally be worn char out with like articles of as acter quality, second-hand; (and) . . be new and not it any mortgaged will attempt to move of said move property out without consent written mortgagee, nor will attempt any dispose same, to sell or same, mortgagee without written consent of the herein.” provides mortgage that, further in case of default in any part principal any notes, of said when due, or in case of the covenants of said chattel are
notes secured said chattel mortgage, personally is liable for payment of such notes, and Lowry therefore said desirous through notes be made a foreclosure of said chattel mort- gage and a sale mortgaged property thereunder, with application proceeds of such foreclosure (upon notes) sale
notes owned and held said W. J. Skeer be paid satisfied and out deposit $17,500, aforesaid unpaid then that said notes be satisfied out proceeds balance of such sale. The evidence herein shows May, 1924, further one E. F. Frerking, seemingly acquired who majority capital had stock of the North purported and who was then the City Milwaukee, went from corporation, Kansas president of resides, plain- interview with Wisconsin, where and had an sought monthly Frerking a reduction amount tiff, which Frerking paid premises. pleaded leased rents each, $500 first of the series of nineteen notes for plaintiff that the would fall due secured the chattel eighteen $500, remaining notes, each for 15, 1924, June and that consecutively, day each on fifteenth of each fall due would one
also seven of notes $500 the nineteen owned and held April 7, W. J. Skeer, mortgage and secured the chattel during severally those seven notes fell due the months June to December, inclusive, in 1924. Default was made Skeer) (held by falling W. J. $500 note due on January 15, Frerking Meanwhile, 1925. in E'. November, 1924, F. assigned had controlling sold and capital in stock to certain individuals named Wear and Rasmus, who appear thereafter majority have owned the capital February, stock of Company. the North Hotel Sometime W. telegram J. Skeer sent to plaintiff Milwaukee, at Wiscon- sin, advising plaintiff precarious condition in the affairs North Company, (according Hotel testimony plaintiff) premises that the being leased were lessee, abandoned North Upon Company. Hotel receiving telegram Skeer, plaintiff City came to Kansas Long chargе, and found one be in or custody, of the purported leased agent as the employee of the North Company. Respecting place what took imme- diately before and after the arrival of City, Kansas February March, 3925, quote wc deem best testimony shown in the record herein. Plaintiff testified as follows: “Q. I you will ask you what was first notice fact had there was any critical condition the affairs of at about A. what date? A wire from, I Mr. believe, Q. . Skeer. . Well, going without detail, much in too was it a fact Mr. you Skeer wired the North being Hotel was abandoned? A. Yes. (cid:127) “Q. anybody And paid you has paid since the $1400 was for the January, 1925, rent? A. No, sir. “Q. you Do charge remember that there was man of the hotel when you got here the name of—what was his name? A. I Q. think it Long. you State whether or Mr. saw Rasmus.
nineteen notes is evidenced individual, pay- said Ben an favor him as
notes several secured (7%) per per of seven cent date, April 7, 1922, at the rate their semi-annually, being on October payable annum, interest fully been principal of said notes has year, each until present trial of the Skeer on the paid. The W. J. testified defendant notes occurred on payment the said action that default in the there testify Skeer did January 1925', but defendant upaid due of interest any default in the record in the no whatsoever evidence principal sum. There is notes) (upon the several chattel the semi-annual
notes since date execution of said notes, as such paid amount interest so ascertained and determined In circuit court. all other respects, however, judgment of the circuit court should read as originally entered on June 28, 1926. judgment nisi is reversed and the cause is remanded to the circuit court, with directions to enter a judgment new herein expressed accordance with the views opinion. this It is so ordered. Linclsay (7(7., and Ellison, concur. PER foregoing opinion CURIAM: The of SbddoN, C., is adopted opinion as the judges the court. All of the concur. Campbell John D. Appellant. v. Thomas H. Campbell, S. W. (2d) 655. One, Division October 1929.