42 Mo. App. 638 | Mo. Ct. App. | 1890
This is an action to recover the rent of ■a dwelling-house in the city of St. Louis from the twenty-first day of November, 1887, to the first day of September, 1888. There was a judgment in the circuit ■court for the defendant, and the plaintiff has brought the case here for review. He only argues two propositions. He insists, in the first place, that there was no substantial evidence to authorize the verdict of the jury ■or to support the judgment of the court thereon ; secondly, that the court committed error in adding to the plaintiff’s fourth instruction. What we shall have to ■say concerning the first assignment will dispose of the second.
Concerning the following facts there was substantially no controversy : Prior to the thirteenth day of
This was the beginning of tbe differences between tbe parties, and it is at this point that tbe conflict in tbe testimony begins. The defendant testified that, on tbe morning of the thirteenth of October, be informed the plaintiff that he bad moved from the bouse, and offered to give him tbe keys ; that tbe plaintiff said it was “all right;” but asked tbe defendant to take tbe keys, to his son’s office, which tbe latter did. Tbe plaintiff’s son'testified that be accepted tbe keys, but notified the defendant that be would bold him for tbe rent until another notice was given. On or about the first of December, tbe plaintiff brought suit against the defendant for tbe rent of tbe bouse from tbe twenty-first day of September to tbe twenty-first day of November. He recovered judgment in this action, and tbe defendant paid it. Nothing more was said about tbe rent until December, 1888, about the time this suit was brought. Tbe plaintiff admitted that, after tbe twenty-first day of November, bis son, by bis authority advértised tbe property for rent through tbe newspapers and by placards placed in tbe windows of tbe bouse; that be made
It is conceded by .the defendant’s counsel that there-was but one notice given, -and that that was inoperative-for the reason the defendant continued in the possession after the date named in the notice. It is also-admitted that there was no conversation between the parties after November 21, and that there was no express agreement to release the defendant. The: efore,
In support of this view it may be said that the Vplaintiff had the right, when the house was left vacant, to take possession of it in order to protect it from waste ■ — and from injury by trespassers. It may be conceded also that the making of slight repairs, in order to fit vit for another tenant, would afford no evidence that the plaintiff intended to take exclusive control of the premises. Nor can it be said that the mere fact, that the plaintiff endeavored to secure another tenant, is, of itself, any evidence that the plaintiff intended to release the defendant from his obligation to pay rent while the house remained without a tenant. If nothing else .appeared the judgment could not stand, for the reason that there would be nothing in these facts in the least inconsistent with the plaintiff’s positive statement that jhe did not intend to release the defendant. But, in ; «our opinion, the evidence goes further. The defend-I ant’s evidence tended to show that the house was newly .papered in December or January. This fact, standiftg by itself, without explanation, had some vtendency to prove that the plaintiff intended to so I improve the property as to command a- better rental, | and not merely to keep the house in proper repair for \_^another tenant. This fact is supplemented by the furTber testimony that the plaintiff did advance the rent. We assume that the efforts made by the plaintiff to find another tenant for the property are justified by him on the ground that he was endeavoring to rent the property in order to relieve the defendant from liaability; in other words, that, while he intended to
Our conclusion in reference to the first assignment necessarily disposes of the second assignment adversely to the plaintiff. In the second assignment the plaintiff complains of the action of the court in modifying his fourth instruction. This instruction, as asked, told the-jury that advertising the house for rent, or making such repairs as might be necessary to fit it for another tenant, or opening it daily so that persons looking for a house might examine it, when taken together, did not amount to such an acceptance of the possession as-would relieve the defendant from his legal duty to pay rent. This instruction was given in the form asked, but, during the closing argument by the plaintiff’s counsel, the court amended or modified the instruction by adding the following: “But the jury should
Finding no error in the record, the judgment of the circuit court will be affirmed. All the judges concurring, it is so ordered.