8 Mo. App. 223 | Mo. Ct. App. | 1880
delivered the opinion of the court.
This is an action by plaintiff as assignee of the lessor, against defendant as assignee of the lessee, for rent for four months and a half of the term, at the rate reserved in the lease. There was a verdict and judgment for plaintiff for the amount claimed with interest, and defendant appeals.
The facts are undisputed, and are as follows : —
The Rockford, Rock Island, and St. Louis Railroad Company, a corporation, operated a road between the points from which it takes its name, until February, 1874, when the property of the road was placed in the hands of a receiver. On December 9, 1875, the road was sold by order of court, and purchased by one Osterberg, who operated the road under the name of the Rockford, Rock Island, and St. Louis Railroad, Osterberg, agent, till May 18, 1876, when he conveyed it to a new corporation called the St. Louis, Rock Island, and Chicago Railroad Company, which operated the road until February 1, 1877, when it leased the road to appellant, the Chicago, Burlington, and Quincy Railroad Company, which has had control ever since.
AYhilst Osterberg had control of the road as purchaser, under the name of the Rockford, Rock Island, and.St. Louis Railroad, George Skinner acted under Osterberg as general manager of the road. The lease in question is dated December 22, 1875, is made by one Finkbine as lessor, is fora
The court, at the instance of defendant, instructed the jury that, to recover, plaintiff must show that there was a written lease from Finkbine to the Eockford, Eock Island, and St. Louis Eailroad, and that his lease was assigned in writing by Finkbine to plaintiff, and that said Eockford, Eock Island, and St. Louis Eailroad entered under the' lease and assigned the same in writing to defendant. The' court further instructed that the conveyances from the mas
The court refused an instruction to the effect that plaintiff, in order to recover, must prove that the lease offered in evidence was executed by the Rockford, Rock Island, arid St. Louis Railroad, or by some one authorized by it to execute the same, and that the said railroad was at the time duly incorporated.
And the court instructed that, if the jury believe from the evidence that defendant is the assignee of the lease as indicated in the other instructions, and that the rent reserved was due, etc., they will find for plaintiff at $125 a month, with interest.
There was a verdict and judgment for plaintiff for the amount of his claim, and defendant appeals.
As there is no question about the facts, the judgment-should not be disturbed if these warrant a recovery, and that is the only question before us for examination.
The lease, we think, was good enough as a lease to Osterberg, who seems to have been doing business under the name of the Rockford, Rock Island, and St. Louis Railroad. If he took the lease under that name, it would bind him by the name he assumed, and it is immaterial that there was no corporation of the name of the lessee. As to the authority of Skinner, his powers as general agent of the railroad would warrant the execution by him of a léase for a room to be used for a ticket-office.
The fact of the assignment of a lease is one of which the lessor may not be cognizant, but the party in possession necessarily knows whether he is in as assignee or no. It is for him, therefore, to disclose the true state of his title ; and if there has been a lease, and the lessor finds one in possession who is not the lessee, the lessor is warranted in presuming that he is in as assignee of the term. Defendant being
In this case, what is the explanation? Defendant was in as assignee, apparently, of the original lessor. The premises were occupied from the first, and all the time, as the ticket-office of a railroad, owned at first by Osterberg, the original lessor, then sold by Osterberg to the St. Louis, Rock Island, and Chicago Railroad Company, which continued to occupy and- pay rent for these premises, using them for the same purpose of a railroad ticket-office, and was then leased to defendant, which remained in possession of the premises, paying rent.
The lease to defendant, dated February 1,1877, sets forth that the lessor, the St. Louis, Rock Island, and Chicago Railroad, is authorized to construct a road from Sterling to East St. Louis, and owns and is operating that road ; that for the purpose of constructing the same, it had executed bonds ; ■and to secure these bonds, has mortgaged to trustees named the road, road-bed, rights of way, superstructure, grounds, depot-buildings, equipment, leases, contracts, and all its property, rights, and franchises; and' to secure the equipment of the road and payment of interest, it makes this lease. The instrument then “grants, demises, leases, assigns, and transfer’s,” to the end of the chartered existence of the lessor, that is, for fifty years, and during any renewal of the charter, subject to the mortgage, its roads, road-beds, and rights of way, which are described; its contracts with other roads, which are also described; “ all lands and depot-grounds, station-houses, depots, viaducts, fences, material, engines, tenders, cars, machinery, and all rolling-stock, and all rights, privileges, and franchises of
Where a lessée makes a general assignment of all his property, the person taking under such general assignment becomes bound also as assignee of a lease owned by the assignor, though the lease be not specifically named, if the general assignee accepts the assignment by entering into possession. Boyce v. Bakewell, 37 Mo. 492. This instrument, called a lease, seems to be a general assignment to the party of the first part of all the property, of every description, connected with the roads in which it was interested, and is evidently intended to put the lessee or assignee in the shoes of the assignor. It was manifestly intended to pass, as between the parties, any outstanding terms of leases of buildings used, as were the premises in question, for the business of the road; and we do not perceive why this assignment ig not sufficiently general in its terms to include the lease of this ticket-office, and to hold defendant, if it took possession of the ticket-office in virtue of this general assignment, as it would seem to have done.
It appears that the general manager of defendant had no-actual knowledge of the lease of the ticket-office at the time he took possession, nor until he subsequently found the written lease amongst other papers which came into his custody as having belonged to the old company. He remained in possession after he knew of the lease, and continued to pay rent as before, without objection and without explanation. Defendant was in as an occupant in a wajr that the landlord, who was in the dark as to this change of occupants, could not disturb ; and having had all
On the whole, we think this lease or assignment sufficiently general in its berms to include the premises in controversy. The judgment, therefore, appears to be for the bright party, on the undisputed facts of the case. The court below did not take this view, and the verdict of the jury is in the teeth of the instructions of the learned judge of that court. But we do not see that error has been committed to the prejudice of defendant, and the judgment should therefore be affirmed.