McAllister v. Reel , 53 Mo. App. 81 ( 1893 )

Biggs, J.

— The plaintiffs action is for money had and received.

For the purpose of widening Whittier street, the city of St. Louis in 1889 condemned a part of city block number 3681, having a front of seventy feet on Easton avenue by a depth of one hundred and sixty-six feet. There is atenement house on the lot. The greater portion of the house was condemned and removed. The plaintiff at the time of the condemnation was the owner of an unexpired lease for a term of years, and the defendant was the owner of the reversion. Both were made parties and appeared to the condemnation proceedings. The commissioners assessed the entire damage, but they failed to apportion it. The assessment was for $4,732, and it was awarded to “John H. Reel, or .owner.” The defendant only filed exceptions, to the report of the commissioners; these were after-wards withdrawn, whereupon the report was approved by the circuit court and the amount of the assessment, paid to the defendant. With the exception of the-failure of the commissioners to apportion the damages, the condemnation proceedings were regular. Upon this state of facts the plaintiff claims that he is equitably entitled to a proportionate share of the money.

The defendant denied liability. He set forth in his answer, by way of an estoppel in pais, that he had been induced to withdraw his exceptions to the report of the commissioners upon the belief that the plaintiff did not make claim to any portion of the damages assessed, and that he was led into this belief through the plaintiff’s failure to object to the award or to notify him that he intended to claim a share therein.

There was a finding in favor of the plaintiff for $1,250, and judgment was entered accordingly. The defendant has appealed, and he complains of the-instructions, the rulings of the court as to the evidence, and the method devised for ascertaining the amount to which the plaintiff was entitled.

We are satisfied that the plaintiff’s cause of action is wellfounded. Tamm v. Kellogg, 49 Mo. 118; Harris v. Howes, 75 Me. 436; Brinckerhoff v. Wemple, 1 Wend. 470; Lewis on Eminent Domain, sec. 627. The defendant admits that the plaintiff was his lessee; that the lease had several years to run; and that the larger portion of the house was condemned and removed. He also admits that he received the entire award. The report of the commissioners conclusively shows that the entire damages to the property were assessed. Certainly, under this evidence, the defendant has money in his hands which equitably and fairly belongs to the plaintiff, and which the defendant must pay. The facts relied on by him to estop the plaintiff from, making his claim are insufficient. The plaintiff and the defendant are equally to blame for the failure of the commissioners to apportion the award. The former ought to have insisted on it being done, and defendant ought to have disclaimed the right to recover the plaintiff’s portion. But the failure of the plaintiff, to object to the award, or to notify the defendant of/ his legal right to a portion of the money, did not* make out a case of estoppel against him. If the plaintiff had disclaimed any right to damages and the defendant had acted on it to his prejudice, then he would have quite a different case. Our conclusion on this point leaves the defendant without a defense- to the merits.

But, as no intelligent method was adopted for deterinining an equitable apportionment of the damages, the judgment will have to be reversed. The plaintiff’s evi- • dence on this subject was confined to proof of the value of his leasehold, and the decrease in his receipts for rent. Just how an intelligent verdict could be reached on such evidence we cannot conceive.

The premises were leased by the plaintiff from the defendant for ten years beginning June 1, 1886, and ending June 1, 1896.' The annual rent, as fixed in the lease, for the first five years was $150, and for the second five years, $205. The evidence tends to show that the leasehold was practically destroyed, but it nowhere appears at what time the city took possession, or when the money was paid to the defendant. These facts must be established on another trial. Assuming for the purposes of a direction that the city took possession of the property January 1, 1891, there was then left of plaintiff’s lease five and one-half years. Six per cent, interest on the amount of the award for that time gives $1,561.56. Reduce this amount to a present cash value. The rent which the plaintiff would have to pay for the remainder of the term would be $1,100. Reduce this amount to a present cash value, and deduct it from the gross cash value of the lease as ascertained above, and the remainder will present the equitable share of the plaintiff in the award. This method of computation is only applicable to^ the particular facts of this case. If the plaintiff claims to have sustained special damages, that is, damage beyond the reasonable money value of the leasehold, he ought to have presented the matter to the commissioners and had his damages assessed separately.

It will be well to refer to another matter. The lease contains this clause: “In case the lessor should sell the premises before the expiration of this lease, he hereby’agrees to refund the lessee for the improvements he may have made.” This covenant is usually inserted when the right to terminate the tenancy by sale is reserved, but it is quite unusual when no such right exists. (Jiving this clause a strict legal construction, we do not think that the condemnation of the property ought to be treated as a sale by defendant. Hence, the question of the value of the improvements made by the plaintiff during the time he held under the lease cannot be considered under the pleadings and evidence as shown by this record.

The plaintiff read in evidence the depositions of the commissioners to the effect that the entire damage to the property was assessed. That testimony was incompetent, as well as unnecessary, as the report of the commissioners is conclusive as to that fact. Turner v. Williams, 10 Wend. 140.

With the concurrence of the other judges,

the judgment of the circuit court will be reversed, and the cause remanded. It is so ordered.