14 Mo. 17 | Mo. | 1851
delivered the opinion of the court.
It appears from the bill of exceptions in this case, that on the 8th of February, 1847, the plaintiff in error, “in order to befriend” the plaintiff in the suit below, and his then partner Graham, negotiated with one Phigby for the purchase of his stock of liquors, fixtures, furniture, &c., in a dram shop establishment called the “Missouri Exchange,” located in this city. Five hundred dollars of the purchase money was advanced and paid down by the plaintiff, Walters and his partner Graham, and the defendant, Cathcart, endorsed their two notes, each for the sum of seven hundred and fifty dollars, for the balance of the purchase money.
Phigby held the house in which the dram shop was kept, under a five years lease, from one Philibert, but assigned it also, with the consent of Philibert, to the plaintiff below, by whom, in connection with his partner in the business, it was accordingly taken possession of, with the understanding (according to Graham at least) that the whole establishment should be under the control of Cathcart, until his fifteen hundred dollars endorsements were paid, and also such other liabilities
Under these circumstances, and alleging the default of Walters to pay the liabilities thus incurred, (and after the withdrawal of the partner, Graham) Cathcart entered the house during the temporary absence of Walters, ordered out the customers, closed the door, and has since kept Walters from the enjoyment or possession of the property.
There can be no doubt that this was a forcible entry, and that the/ subsequent detainer was an unlawful one, because, both were against the will of Walters, and the general understanding as to the control which Cathcart was to have over the establishment, could at most imply nothing beyond his right to enter into, or obtain control over the house and the business in a legal manner or under a proper legal process. The instructions of the court were therefore correct upon that point, but incorrect, as we conceive, in respect to the measure of damages they suggested. The instructions upon that point were to the effect, that if the jury found for the plaintiff's, they would assess such damages as he had sustained by reason of the forcible entry and de-tainer, and also the rents and profits of the premises up to the time of their verdict, together with the monthly value of the rents. To say nothing further of the fact that Cathcart was bound for the payment of a large sum of money for the plaintiff, and of the understanding by which he supposed he had a right to take possession of the establishment in the manner he did, it appears from the receipts which are embodied in the record, that the plaintiff only continued to pay rent for the property for. the period of six months and eight days after being dispossessed, at which time it would seem that another person went into possession, and has since regularly paid the rents himselfi
Such being the case, resulting most probably from the plaintiff’s own neglect to keep his rents paid according to, and whereby he. forfeited the lease; or it being at all events certain that he neither paid nor ig bound to pay the rents thus paid by another — whether restitution would or would not be due of the premises under the spirit of the law upon which the instruction was predicated, the instruction should at least have been so modified as that the sum of the rents paid by the plaintiff, (or which he was liable for, if any,) with such additional damages as he had sustained in the way of his business, by the entry and detainer complained of, should be the measure for the verdict of the jury, and double that sum (of course) for the judgment of the court.
The judgment of the circuit court, is. accordingly reversed and the cause remanded.