Columbia Brewing Co. v. Miller

124 Mo. App. 384 | Mo. Ct. App. | 1907

BLAND, P. J.

(after stating the facts.) — Appellant contends that respondent, having asked and obtained instruction No. 6, supra, in the unlawful detainer suit and having been successful in his defense of the suit,, is estopped to deny that he elected to pay one hundred»' and fifty dollars per month as rent for the premises from and after March 15,1905; on the other hand, respondent contends that appellant was defeated in the unlawful detainer suit, for the reason the notices served on respondent to vacate were not sufficiently explicit and positive to require him to move. Instruction No. 5, given for respondent in that suit, in effect, left it to the jury to. find whether or not the notices to vacate were sufficient in law to require respondent to move. The two notices were served on respondent March thirteenth,. were served at one and the same time, and should be taken as one notice and construed together. When construed they impart to respondent the information that appellant gave him option to continue in the possession of the premises at a rental of one hundred and fifty dollars per month or to vacate the premises, if he was not willing to pay the increased rent. A notice to a tenant to quit must he absolute. In Ayers v. Draper, 11 Mo. 548, a notice demanding possession and declaring that if possession was not given by a certain day, rent at a given rate would be claimed, was held to be insufficient. The notices in the case at bar are not distinguishable from the one pronounced insufficient in Ayers v. Draper and, in law, they were ineffectual; and tile jury may have found they were' insufficient and that respondent elected to pay one hundred and fifty dollars per month rent,- or vice versa, they may have found the notices sufficient and respondent did not elect io pay the one hundred and fifty dollars per month, or they may have found the notices insufficient, and also that respondent elected to pay one hundred and fifty dollars per month as rent. The uncontradicted evidence s, that respondent at all times refused to pay one hundred and fifty dollars per month, and insisted that he was only liable to pay rent at sixty dollars per month, which he offered to pay, and on the trial offered to consent to an amendment of the petition and let judgment go against him at that rate for the time he had occupied the premises without paying rent. The evidence, therefore, would not Avarrant the inference that respondent elected to pay one hundred and fifty dollars per month, and we think there is a greater probability that the jury found the notices to quit were insufficient than that they found respondent elected to pay one hundred and fifty dollars per month rent. But we are not required to find whether one or the other of the instructions influenced the jury to find a verdict for respondent. It suffices to knoAV that instruction No. 6, supra, was given at the instance of respondent, and that he asked the jury in the unlawful detainer suit to find he did elect to pay one hundred and fifty dollars per month as rent, for the purpose of inducing them to find a verdict in his favor. In the present suit, for the purpose of defeating a recovery of the rent at the rate he asserted in his instructions in the former suit he elected to pay, respondent faces about and denied he ever made the election. Lord Kenyon said “that a man shall not be permitted to ‘blow hot and cold’ with reference to the same transaction, or insist, at different times, on the truth of each of two conflicting allegations, according to the promptings of his private interest.” [Broom’s Legal Maxims, sec. 169.] By his instructions and conduct in the unlawful detainer suit, we think respondent is estopped to deny that he elected to pay one hundred and fifty dollars per month, as rent for the premises in the present suit. The following Missouri cases are in point: Kennedy v. Bambrick, 20 Mo. App. 630; Welch & Harvey v. Dameron, 47 Mo. App. 221; Boettger v. Roehling, 74 Mo. App. 257; Brown v. Appleman, 83 Mo. App. 79; Holliday v. Noland, 93 Mo. App. 403, 67 S. W. 663; Coney v. Laird, 153 Mo. 408, 55 S. W. 96; Est. of Glover & Shepley, 127 Mo, 153, 29 S. W. 982; Boogher v. Frazier, 99 Mo. 325, 12 S. W. 885. The petition declared on an express contract to pay rent at the rate of one hundred and fifty dollars per month. A contract is express when a bargain has been made concerning the subject-matter in question, or where the terms of the agreement have been openly uttered by both parties, or where the contract has been voluntarily made by the parties thereto. It is an actual agreement that can he proved by either written or oral evidence. If therefore, after receiving the notices that the rent of the premises was increased to one himdred and fifty dollars per month, respondent elected to keep them and pay the increased rent, appellant is entitled to recover as on an express contract. For the reasons herein stated, we think the learned circuit judge erred in peremptorily instructing the jury to find for respondent, and reverse the judgment and remand the cause.

All concur.