48 Mo. 517 | Mo. | 1871
delivered the opinion of the court.
Action for unlawful detainer. The plaintiff had leased a sawmill and dwelling-house to defendant for one year. No money rent was to be paid, but the lease was conditioned that the defendant was to run the mill in a careful and skillful manner; was to put in his arid his boys’ time against the capital invested in the mill, pay half the expenses of running, take care of tools and mill, etc.; in consideration of which the plaintiff was to furnish him the use of a dwelling-house, and the proceeds of the mill were to be divided between them. After running the mill a few months, the defendant went away, leaving his family in the house, and the plaintiff took possession of the mill. The defend- * ant returned, remained a week or two, but did not go into the mill, and again left. The plaintiff then brought this action to obtain possession of the house. •
There is no condition of. forfeiture in the lease, and the action is based solely upon the ground of abandonment. The case was tried in the Circuit Court on appeal, and upon that point the
A number of instructions were asked by defendant and refused, most of which were correct in tbe abstract, but they did not pertain to tbe question developed, and if tbe above instruction be correct, tbe judgment must stand.
An abandonment of tbe premises under tbe circumstances must be held to terminate tbe lease. Tbe benefit to tbe lessor depended entirely upon tbe continued occupation and running of tbe mill, and when it was deserted be bad a right to enter and consider tbe term as ended- by act of tbe lessee. It is analogous to, though stronger than, the case of an abandonment by tbe lessee from whom a money rent is • due, without leaving goods upon tbe premises sufficient to answer tbe rent. In that case it is held that tbe lessor may let tbe term run out, and collect tbe rent if be can, or be may enter; in which ease tbe lessee is responsible for-rent only up to tbe time of entry. (McKinney v. Reader, 7 Watts, 128 ; Schuisler v. Ames, 16 Ala. 73.) In tbe last case it does not appear that tbe rent could not have been collected, and tbe court held that tbe landlord was not bound to let bis premises lie idle and unoccupied, as it might be more injurious to him than to enter and lose tbe rent.
In tbe case at bar tbe court held that if tbe lease of tbe mill was tbe consideration for tbe lease of tbe dwelling-bouse, an abandonment of tbe mill was an abandonment of tbe dwelling.
Tbe instruction is somewhat inartificial, but the jury were not misled and no injustice was done. Tbe court should have construed the writing and decided what was tbe consideration for tbe lease of tbe dwelling-bouse so far as shown by tbe instrument,