Crouch v. Wabash, St. Louis & Pacific Railway Co.

22 Mo. App. 315 | Mo. Ct. App. | 1886

Ellison, J.

By a chain of assignments the lease was transferred to plaintiffs, Crouch, Wagaman & Company. Storms was the company in the firm which was organized under such style, January 1, 1882. During the year 1881 the firm was known as Crouch & Wagaman, though Storms was a silent member thereof. The membership ■of the firm was the same during the year 1881, and up to the institution of this action, the only difference being that in January, 1882, “& Co.” was added to the name of the partnership. All the transferees of the lease had operated the elevator and shipped grain under its terms, and defendant recognized their right so to do, by making settlements and payments, without protest or objection, under the terms of the lease. Defendant’s last payment was made to Crouch & Wagaman in June, 1882, for shipments made by them up to January, 1882.

The defence made here is, that the several assignments, with perhaps one exception, were made without the written consent of defendant; and that, in law,- «no assignment could be made of that portion of the lease agreeing to pay for shipments which the original lessees were employed to make and solicit. There is no necessity whatever for us to consider or pass upon this defence, as it is shown by the evidence that defendant has recognized each successive transfer by making payments under the terms of the lease. Defendant made payment to these plaintiffs under the name of Crouch & Wagaman' for shipments made up to the beginning of the account in suit, which, in our view, makes them liable to this action. Defendant contends that there is no proof that it had any knowledge of the condition broken, in the1 lease, that is, of its being assigned. And that there was no proof of the authority or agency of those persons whose letters concerning the claim sued upon were introduced in evidence. It is true the evidence wholly fails to show who were the writers of the letters; whether they were em•ployes of defendant or strangers, and if employes, whether brakemen, switchmen, general freight agent, or president. It does appear, however, ■ as before stated, that defendant made payments to the plaintiffs, and, as a matter of course, had the knowledge now claimed to be wanting.

There should be knowledge of the condition broken before a waiver by the landlord. “But if the condition be, that the tenant shall not assign without the written permission of his landlord, and, notwithstanding this, he makes an assignment, if the landlord subsequently accepts rent from the assignee, it will be considered a waiver of the forfeiture, and will make the lease valid in the hands of the assignee.” Taylor’s Landlord and Tenant, section 497.

There were cross appeals in this case ; plaintiffs contending they should have been allowed for shipments made to points east of St. Louis, as well as to St. Louis. Under the terms of the lease upon which plaintiffs base their action, we think the court properly held them' to the amounts shipped to the point provided in the lease.

The judgment is affirmed.

The other judges concur.