150 Mo. App. 515 | Mo. Ct. App. | 1910
This is a sfi.it for an installment of rent accrued under a written lease. Plaintiff recovered and defendant prosecutes the appeal.
Tt appears plaintiff owned a building and equipment in St. Louis, occupied and used as a skating rink
The principal defense put forward in the circuit court was that plaintiff falsely and fraudulently represented the property to defendant and thereby induced him to enter into the contract. Defendant gave testimony to the effect that plaintiff represented the skating rink yielded an income of about twenty-five dollars a day during the week and seventy-five dollars on Sundays, when in truth and in fact its yield was but seven • dollars a day during the week and twenty-five dollars on Sundays. The issue was tried before the circuit court, a jury having been waived, and the court found for the plaintiff as though the defendant had failed to sustain his affirmative defense of fraudulent representations. The plaintiff in his testimony insisted that no such representations with respect to the income from the property, were made. There was substantial evidence pro and con on this issue and the matter is, there
The principal point relied upon for .a reversal of the judgment relates to the fact that defendant never entered into possession of the demised premises. It is argued that as defendant never occupied the premises, and as the suit proceeds for an installment of rent under the lease, it may not be sustained for the reason the relation of landlord and tenant does not exist. The relation of landlord and tenant arises from contract, either express or implied, and it is entirely true as a general proposition, that the occupancy of the premises by the tenant is an essential element to sustain it; but such is not essential to a recovery in the case now in judgment, for defendant convenanted to pay the rent sued for, and if the plaintiff was ready, able and willing-to perform on his part by giving over possession of the premises, it is sufficient. Where the lessee covenants to pay rent, his liability .therefor does not necessarily depend upon the occupation of the premises;-for by executing the lease he becomes possessed of an interesse termini, which is a valuable right enforceable against the lessor. The interest thus acquired by the lessee is assignable before entry and he may bring ejectment if possession be withheld from him thereafter. The lessee may also, if he chooses to do so, bring an action for damages against the lessor upon the implied agreement to give possession if the lessor fails or refuses to perform his obligation in that- behalf. The rights and liabilities of the parties in such circumstances are, of course, mutual, and if enforceable by the lessee against the lessor, they are equally so by the lessor against the lessee. Though the relation of landlord and tenant in the strict sense of the term never arose because of the fact defendant declined and refused to occupy the premises, the covenant to pay the rent reserved is a valid obligation and operates to sustain the action on the theory of a privity of contract, even if there is no privity of
It is next argued that the suit may not be maintained for a single installment of rent. It is said that such a proceeding operates to split the demand, and that if plaintiff is entitled to recover at all, he should have waited until the term had expired and sued for the full amount of rent reserved in the lease, as the contract is an entire one. It is true enough that the law does not permit the splitting of demands; for in the interest of the peace and repose of society it prefers all rights arising out of entire contracts to be litigated at one and the same time. But the rule is without influence in the circumstances of this case. The law favors, too, the freedom of contracts and it is competent for parties to stipulate for periodical payments of money and property. Such valid agreements as are made pertaining to affairs of this kind, the law will countenance and enforce in accord with their spirit and intent. The rule is established beyond controversy that when payments of money are to be made periodically, separate actions may be maintained in succession for the several installments as they mature. However, all sums due when an action is begun, seeking to recover one installment, should be included in the action, as a judgment in such circumstances will bar any further action for the sums then due but not included therein. [Puckett v. Nat’l Annuity Assn., 134 Mo. App. 501, 114 S. W.
The appeal is without merit and the judgment should be affirmed. It is so ordered.