165 Mo. App. 659 | Mo. Ct. App. | 1912
This -is a suit for rent. Defense is made to the rent charge on the ground of a constructive eviction, which operated a breach, on the part of plaintiff, of the covenant for quiet enjoyment implied in the lease, and, furthermore, defendant interposed a counterclaim for damages accrued through plaintiff’s breach of an express covenant in the lease for repairs. The finding and judgment were for defendant and against plaintiff on the cause of action for rent declared upon in the petition and defendant’s counterclaim set forth in the answer. From this judgment plaintiff prosecutes the appeal.
Plaintiff owns a three-story brick building, numbered 615 Locust street, St. Louis. By an indenture of lease, he let the entire premises to defendant for a term of three years, commencing on the 15th day of March, 1908, and ending on the 15th day of March, 1911, at an annual rental of $6500, payable by defend-ant lessee in monthly installments of $541.65 in advance. The lease stipulates that the first story of the demised premises should be used and occupied by the lessee as a business house for the sale of ladies’ apparel. It seems that the second and third stories of the building are suitable for office and residence purposes, and the lease authorized the lessee to sublet either one or both of such stories to another. The first story of the building is about 125 feet in depth, but the second and third stories are not so deep; that is to say, a considerable portion of the first story of the building extends in the rear beyond the second and
The ease concedes that defendant declined to pay rent after abandoning the premises, but she paid all installments due up to the day of such abandonment. On this appearing conclusively, it is argued the verdict should have been for plaintiff and that the court erred in submitting the matter of an eviction to the jury, for, it is said, a mere breach on the part of a lessor of a covenant in the lease for repairs is not sufficient to operate an eviction but, instead, remits the lessee to his suit on the covenant for the breach. Generally speaking, the proposition may be conceded to be true, but it is wholly without influence here, for the eviction asserted relates to the breach of the covenant implied in the lease for quiet enjoyment and reckons with the covenant of the lessor to repair as an incident only. No one can doubt that the consideration of the lessee’s undertaking to pay rent is the quiet, peaceable and undisputed possession of the premises leased, and for this the lease implies a covenant on the part of the lessor which is in its nature a condition precedent to the payment of the rent reserved. Therefore, if the lessor, by any wrongful act, disturbs that possession, which he should protect and defend, he thereby forfeits his right, and the lessee may abandon the possession of the premises leased and thereby exonerate himself from liability to pay rent. Such is the doctrine of Jackson v. Eddy, 12 Mo. 209, which is frequently reaffirmed. An eviction may be either actual or constructive. An actual eviction exists when the lessor wrongfully enters upon the premises demised and by affirmative acts deprives the lessee of the beneficial use thereof, either in whole or in part.
The common law imposes no duty upon the landlord to make repairs during the term of the lease, but if by a stipulation in the lease the lessor agrees to do so, of course, the obligation is cast upon him. It may be that the premises demised become untenantable because of the want of such repairs as the landlord has agreed to make. In such circumstances, the breach of the covenant touching repairs, of course, not only operates to impair the consideration for the lease, but operates as well to breach the implied covenant for the quiet enjoyment of the premises. Such-is the case here, for the lessor' covenanted in the lease to make repairs to the roof and downspouts and to maintain the same in good order. In such cases, a constructive eviction may result from a mere omission on the part of the lessor to perform the obligation assumed, provided the lessee abandons the prem
But it is said defendant retained possession of the premises for the whole term through the occupancy of the second and third stories by her subtenant, Dr. Johnson, and the law requires an abandonment of the whole. The court submitted the matter to the jury by instruction, to the effect that defendant was acquitted from the entire rent, if it appeared she was constructively evicted from and abandoned the storeroom through its becoming untenantable because
But though such be the rule as to an actual eviction, another prevails when the eviction is by construction of law, for to complete such an eviction, it is-essential that the premises shall be abandoned by the lessee. In every case of constructive eviction, in order to render the eviction available to the end of defeating the entire rent, it must appear that the lessee abandoned the premises for that cause. As to such eviction, the rule is thus stated in 11 Am. & Eng. Ency. Law (2 Ed.), p. 479: “It is well settled, as a general rule, that there can be no constructive eviction unless the tenant abandons the premises on account of the acts or circumstances claimed to operate as an eviction.” Mr. McAdam thus states the law as to a constructive eviction: “Where the eviction is constructive merely, it is no eviction in law unless followed by a complete abandonment of possession by the tenant.” [See 2 McAdam, Landlord & Tenant (4 Ed.), p. 1385.] The law is thus declared, too, as we understand it, by our Supreme Court in Jackson v. Eddy, 12 Mo. 209, for upon a close scrutiny of that case it will appear that the instructions declaring the rule of decision at the trial, which were approved on appeal, required the jury to find that the defendant abandoned the premises and offered to surrender possession to plaintiff .lessor. That case was one of constructive evic-,
But though the entire rent is not suspended because plaintiff remained in possession of the two upper stories of the building through her subtenant, it would seem that she is entitled to a pro rata abatement thereof. The authorities declare that where the tenant is actually evicted from a portion of the premises, the entire rent is suspended even though possession is retained of a parcel of the demise. The doctrine with
But it may be that plaintiff waived the matter of abandonment of the entire premises and thus precluded his right to insist upon a full surrender’, in which event, of course, the payment of the entire rent is suspended identically as though the entire premises were abandoned and surrendered by defendant. After defendant notified Dr. Johnson, the subtenant, that she intended to abandon the premises and requested him to vacate the upper stories, he called, .upon plain-, tiff landlord and discussed the matter with him. Dr. Johnson testified that plaintiff requested him to remain in possession of the upper stories, notwithstanding the notice from defendant. It. is true plaintiff disputes this and says that no such request was made by him. The evidence is, therefore, pro and con on the subject, and the question was properly oné for the jury, but it seems no instruction was framed upon it. In other words, the record presents no finding of fact by the jury touching this matter, as it was not submitted. There can be no doubt that a lessor may be held to waive rights accorded to him by the law for his personal benefit, provided he acts advisedly touching the same. [See Smith v. Huff, 141 Mo. App. 476, 125 S. W. 1173.] If the jury should find that Dr. Johnson continued to occupy the premises after defendant abandoned same and so remained in possession at the instance and suggestion of plaintiff, then it is competent for the court to declare that a further abandonment of the upper stories was waived by the lessor and the entire payment of rent on the part of defendant suspended. The mere fact that the lessor re
The judgment should be reversed and the cause remanded. It is so ordered.