McInturf v. Redell Manufacturing & Supply Co.

GRAY, J. — Tbis is an action to recover rent alleged to be due under a written lease. Tbe respondent at tbe time tbe lease was executed, was tbe owner of a building in Jasper county, and tbe appellant was a wholesale liquor dealer, and one Tony Caylor was conducting a saloon in tbe building. Tbe appellant bad loaned Caylor tbe money to pay for bis license, and also owned tbe dramshop fixtures. That on tbe 10th day of March, 1909, tbe parties executed a written lease, by the° terms of which tbe defendant rented tbe building for a period of one year from tbe first day of April, 1909, at a rental of sixty dollars per month, was admitted by both parties. Tbe only difference between them, was respondent claimed there was but one copy of tbe lease and that it was signed by both parties, while tbe appellant claimed there were two copies, both of which were signed by tbe respondent, but only one signed by tbe appellant. We deem tbis difference wholly immaterial, and tbis point will not be further noticed. After tbe execution of tbe lease, Caylor with others continued to operate tbe saloon until sometime during tbe summer of 1909. A petition was filed with tbe county court, charging that Caylor was conducting a disorderly bouse, and was violating all tbe laws governing dramshops. Upon tbis petition a bearing was bad resulting in an order revoking Caylor’s license to keep tbe dramshop. [676] The lease contained the following clause: “It is agreed and understood that in the event of local option, prohibition or any other cause whatever it becomes impossible to secure a dramshop1 license for this location, then this lease shall become null and void. ’ ’ The rent was paid up to the time Oaylor’s license was.revoked, but nothing was paid thereafter. In February, 1910, local option was adopted, and this suit is to recover the rent from the time the license was revoked up to the time local option was adopted. The answer was a general denial. Plaintiff obtained a judgment and defendant appealed.' It is appellant’s first contention that at the time the lease was executed, the premises were in the possession of Oaylor, who, afterwards, remained in possession as the tenant of respondent, and appellant was unable to obtain possession of the building, and therefore, the lease never went into effect. Mr. Painter was the representative of appellant in procuring the lease, and he testified that his firm owned the fixtures and loaned Oaylor the money to procure the the license, and that a short time after the license had been revoked, he met the respondent, who said to him that if he would surrender the lease he could, re-rent the property; to which he replied: “It isn’t necessary,you can lease it as it is; we will turn it over to you. ’ ’ The'plaintiff testified that he demanded that the appellant execute a written lease for the property, as he did not want to look to the persons who were conducting the dramshop for his rent. In fact, all the evidence shows that it was understood between the parties that Oaylor was to continue to operate the dramshop under the lease signed by the appellant. It is-next claimed that the lease became null and void when the county court revoked the license of Oaylor to conduct the dramshop. Respondent says this question is not before us for review, because the answer was a general denial, (and the defendant hav [677] ing denied the execution of the lease, could not make the affirmative defense of confession and avoidance. This point is well taken. [Alt v. Hobbs, 62 Mo. App. 669; Bank v. Stewart, 136 Mo. App. 24, 117 S. W. 99; Greenway v. James, 34 Mo. 326; Young v. Glascock, 79 Mo. 574.] But waiving this- point, we are of the opinion that the evidence is not sufficient to authorize us to sáy, as a matter of law, that the lease became null and void for the reason that it was impossible to procure a dramshop license for the location. The burden was upon the defendant to show that the lease had become inoperative for that reason. . The evidence discloses that the right to conduct the dramshop was revoked solely on account of the criminal acts and conduct of Oaylor, who was conducting the saloon with the consent and under an arrangement with the appellant. The lease does not provide, if, for any reason it is impossible for Oaylor or the appellant to. procure a dram-shop license for the location, that the lease is to be null and void, but only null and void when it is impossible for any one to secure a dramshop license for the location. The fact that Oaylor, on account of his disorderly conduct in the building, was unable to procure a license, did not prove or tend to prove that a license could not be procured for the location, and no one can read the record without being convinced that if it was impossible to secure a dramshop1 license, it was solely due to the unlawful acts and conduct of Oaylor and those associated with him. The only other testimony tending to prove that a dramshop license could not be procured for the location, is found in the following question asked Mr. Painter, and his answer thereto: “Do you know whether or not after that dramshop license was revoked there a dramshop license would be obtained for this location? A. No, sir it could not.” This was no more than the conclusion of the witness. No effort [678] was made to procure a license, and from this statement of the witness, the trial court was not compelled to find that no person could have secured a license for a saloon in the building, and whether any person could or not, was a question of fact for the trial judge to determine under proper declarations of law. The appellant’s declaration of law on this issue placed the burden on the plaintiff, and therefore, was rightfully refused. The judgment must be affirmed. All concur.