Conservative Realty Co. v. St. Louis Brewing Ass'n

GOODE, J. (after stating the facts) — If evidence to prove the purpose for which defendant leased the premises was incompetent, its admission was harmless because the lease document shows on its face what was [267] understood by both the parties to it to be defendant’s purpose. The lessor (McClure) bound himself not to lease or rent for another saloon or dramshop in said block during the existence of the lease in question. That proviso not only shows the premises were let for a dramshop, but that the lessor agreed to protect the lessee against competition in the block. The next clause, which provided that if a saloon license could not be procured, the lease should be null and void on ninety days’ notice, speaks to the same intent. There is no ambiguity concerning this point, and in determining whether the lessee had a right to terminate the tenancy whenever a saloon license could not be procured, whatever help may be drawn from the clear purpose to let the premises for use as a saloon, is available to the court on the face of the lease without reference to extrinsic evidence. The intention of both parties regarding the purpose of the demise must wield potent influence in interpreting any clause of it; for the duty of the court is to give an effect to each clause which will promote the general purpose, if it is possible, in view of the language, to do this. [Union Dept. Co. v. Railroad, 113 Mo. 213, 20 S. W. 792; Bent v. Alexander, 15 Mo. App. 181.] The clause in question runs in these words: “Should said saloon license be not secured on said premises in said block, then this lease is null and void on ninety days’ notice from said lessee.” Plaintiff’s counsel contend this stipulation means that only in the event ■a single license, to-wit, the one for the first six months, could not be procured, defendant might end the term by .giving ninety days’ notice; 'whereas defendant contends the meaning of the clause and the intention of the parties, was that if, at any time during the term of five years, a license could not be procured, the lessee might surrender the term. In aid of this interpretation they point to the statutory law of the state which limits saloon licenses to a term of six months, and to the obvious [268] purpose of the demise, arguing that it would be unreasonable to hold defendant was willing to commit itself for the entire five years on the strength of a license for the first six months. If the language was clear its meaning would be obligatory on the parties, although the consequences might be harsh and the stipulation contrary to the mode in which men ordinarily bind themselves by contracts. [Sachleben v. Wolf, 61 Mo. App. 28.] But the clause to be construed is ambiguous in this: the language is “should said saloon license be not secured on said premises,” etc. Those words convey the impression that some license had been mentioned in the previous part of the lease to which the phrase “said saloon license” referred. But no particular license had been mentioned, nor had the word “license” been used before in the instrument. Hence there is no more reason to hold the words “said saloon license” referred to a license for the first six months, than to' hold they referred to one for any other six months. There is some weight in the argument of defendant’s counsel that they referred to one license and not the numerous licenses which would need to be procured for a dramshop during the five years’ term, since the word license is in the singular number. According to old law, the patent ambiguity of the clause might make the stipulation void; but this doctrine is no longer enforced as strictly as formerly; and whether an ambiguity is patent or latent, a court will endeavor to glean the intention of the parties from the whole instrument and the circumstances attendant on its execution. [2 Parsons, Contracts (9 Ed.), *561 et seq.] Taking into account the law regarding saloon licenses, and the purpose for which the premises were taken by defendant, we have no doubt the intention of the parties was to make the existence of the lease contingent on the ability of defendant to procure from time to time a license. That is to say, defendant was. accorded the privilege of ending the term on ninety days’ [269] notice^ whenever it became impossible to obtain a license. It is highly improbable the brewing association would have entered into the lease to have a saloon kept on the premises unless it knew beforehand a license for the first six months could be procured. Indeed, testimony was admitted without objection to prove the officers of defendant had investigated this matter before the lease was executed, and were assured a license would be granted. Therefore it was useless to put the stipulation in the lease, if it related, as plaintiff’s counsel say, only to the first license. To adopt such a view we must conclude the parties stipulated for a cessation of the term in case it turned out to be impossible to get a license for the first six months, when, in fact, defendant made sure of this contingency before it took up with plaintiff the proposition to rent the property. Plaintiff’s counsel insist that inasmuch as a corporation cannot be licensed to keep a dramshop', the clause providing for the surrender of the term in the event a license for a dramshop could not be procured, is against public policy and void. It is argued that if defendant was permitted to put an individual in possession of the premises to conduct a saloon for its benefit, this would be doing indirectly what it was forbidden to do directly. It does not appear the defendant was going to put a man in there to conduct a saloon as its agent; but merely that the property wtas rented for saloon purposes and probably to.increase the sale of defendant’s beer. The lease does not reveal what, arrangement defendant contemplated making with the person who would keep a dram-shop on the property, nor are we informed by the evidence what terms it actually made with Wurtenbacher who kept one there. The record will support the conclusion that the .arrangement was hot one by which defendant was the real owner of the saloon and the keeper, its custodian. Hence if an arrangement of the latter sort would be unlawful, and we do not decide the point, [270] it was not established. The argument for defendant in this connection, if sound, would avoid the entire lease on which it sues as against public policy, rather than a particular clause; because the lease shows McClure demised the property for dramshop purposes. However it is not unlawful for a brewing corporation to lease premises for the purpose of having its beer sold in them. Such contracts have been upheld. [Holin v. Brewing Co., 21 App. Div. (N. Y.) 204; Koehler v. Reinheimer, 26 Id. 1.] We are clear the judgment is for the right party and will be affirmed. All concur.