Dougherty v. Matthews, 35 Mo. 520

Dougherty v. Matthews

35 Mo. 520 | Mo. | 1865

Holmes, Judge,

delivered the opinion of the court.

The motion in arrest brings up the question of the sufficiency of the petition. The principal grounds of demurrer were these two : 1. That the petition did not state facts sufficient to constitute a cause of action ; and 2. That the court had no jurisdiction of the subject of the action.

1. The cause of action is founded upon a parol contract to pay the rent reserved in a lease from the plaintiff to Edward A. Tudor, for a term of three years from the first day *527of January, 1859, at a yearly rent, payable monthly on the first day of each month thereafter. It is stated that the lease was in writing and signed by them, and that it was not to be assigned without the consent of the lessor in writing. | This averment does not by its terms extend beyond the im- j mediate parties to the lease, and it cannot, by any fair legal ,j intendment, be held to include assignees. The lease is not j stated to be under seal, and therefore the case does not come within the doctrine of covenants running with the land or¡j thing demised. (1 Smith’s Lea. Ca. 107,157.) It is then4 stated that on the 5th day of April, 1860, Tudor, the lessee, assigned the lease to the defendant; that the defendant, desiring to assign the lease to-one Greenleaf, requested the consent of plaintiff thereto, and that his consent was given on the express condition that the defendant would assume the prompt payment of the rent reserved; that, in consideration of such consent, the defendant accepted the condition, and on the 26th day of April, 1860, assigned the lease to Greenleaf; and that on the first day of September, 1860, there was six months’ rent due, for which he asks judgment. It thus appears on the face of the petition that no part of the rent sued for fell due during the time in which the defendant held the premises as. assignee, and that the alleged promise was for the payment of rent which was to fall due during the time of the second assignee, and for which, if the lease were assigned, the defendant would not be liable; and the consideration for this undertaking is merely the consent of the plaintiff to the assignment of the lease. The plaintiff proceeds upon the assumption that the assignee could not himself assign the lease without the consent of the lessor, but it is not made to appear by anything contained in the petition that such consent was at all necessary, nor that the giving of it was any advantage to the defendant or any detriment to the plaintiff. It may be pi'esumed that the parties acted under a mistaken impression concerning it; they may have supposed that the consent was required when in reality it was not. A promise of this nature is without any valúa *528ble consideration, and merely nudum pactum. (Sto. on Contr. § 429; Freeman v. Boynton, 7 Mass. 488; Cabot v. Haskins, 3 Pick. 83; Kaye v. Dutton, 7 Man. & Gr. 806; Cook v. Elliot, 34 Mo. 587.)

2. The question of jurisdiction is determined by the same view of this petition in reference to the subject matter of the action. It is to be presumed that the claim of jurisdiction was based upon the following clause of the second section of the act establishing the Land Court (R. C. 1855, p. 1592) : “ for enforcing the rights and obligations of lessors and lessees and their respective assignees.” In order to bring the case within this clause, it must be made to appear by the petition that the obligation which is the ground of the action arose out of the lease, and that it was assumed by the defendant by virtue of some contract created by the lease or some liability incurred under it, and in his character of as-signee of the lease. It cannot be extended to a special contract which is wholly independent of the lease. In any view that can be taken of this petition, it would have amounted to nothing more, even if a sufficient consideration had been stated, than a special undertaking on the part of the defendant to assume the payment of rent which was to become due from another person. As an action for rent merely, as a money demand arising out of such special contract, it is clear that the case did not come within the jurisdiction of the Land Court. (Adams v. Blecker, 33 Mo. 403.) On both these questions the demurrer should have been sustained.

3. On the trial, the plaintiff offered in evidence a lease under seal, and also a written agreement endorsed thereon, to the effect that the plaintiff gave his consent to the assignment of the lease on condition that the defendant would assure the prompt payment of the rent reserved in the lease. This agreement was signed and sealed by both parties. The defendant objected to the admission of it in evidence on the ground of variance. That the agreement read assure, and the.petition assume, was immaterial; it was enough for the plaintiff to state it according to the legal effect; but there *529was a fatal variance, and a total want of correspondence, between the allegations and the proofs. If the plaintiff intended to rely on this agreement, he should have founded his cause of action upon the instrument, and stated it in his petition as a contract under seal. He cannot set up one cause of action in his petition, and on the trial prove another and different one. (Robinson v. Rice, 20 Mo. 229 ; Pensoneau v. Pensoneau, 22 Mo. 27.)

As the judgment will be reversed on other grounds, it becomes unnecessary to consider at large that part of the de-fence which related to -the proceedings in the attachment suit. It will be sufficient to observe, that we discover no material error in the ruling of the court below on that subject.

The other judges concurring, the judgment is reversed and the cause remanded.