43 Mo. App. 234 | Mo. Ct. App. | 1891
The facts, as we glean them from the evidence, are that the plaintiffs leased to defendants their five-story building in Kansas City, by a written lease containing the usual covenants, for the period of seven years from the’ first day of January, 1883 ; that the defendants took possession of the' building under this lease and continued to pay the stipulated amount of rent until January 1, 1887, a short time after their failure in business, which occurred on December 16, 1886. It further appears that the plaintiffs, some time in the month of January, 1887, after the failure of the defendants and shortly after the defendants’ refusal to pay rent for the month of January, concluding that the defendants had abandoned the building and their lease upon it, took possession of the building, and, without consulting the defendants, set to work to rent it, putting it into the hands of as many as half a dozen real-estate agents for that purpose, and on the first day of February, 1887, after making several costly alterations and repairs upon the building, leased it, by written lease, to Barton Bros, for the period of five, years
The defendants had judgment, and the plaintiffs appeal.
I. The first proposition of the appealing plaintiffs assailing the judgment is, that “ there was no plea of surrender in this case.” Defendants’ answer was a simple allegation of abandonment without any allegation of acceptance by plaintiffs of the premises in discharge of his covenant in the lease to pay the rent for the unexpired term. Besides there was an express covenant in the lease “that, in default of the payment of any installment of rent for thirty days after the same becomes due, they will at the request of said George D. and Lucy E. Huling quit and render to them the peaceable possession thereof, but for this, cause, the obligation to pay shall not cease.” Plaintiffs’ instruction C to find for the plaintiffs under the pleadings and evidence should have been given. The answer admitted that defendants on January 1, 1887, vacated and abandoned the premises, and alleged that about that date the plaintiffs .took possession of said premises, and leased the same to the Bartons for a period of five years.
The law is well settled, by both the text-writers and decided cases, that a surrender is the yielding up the estate to the landlord so that the leasehold interest becomes extinct by the mutual agreement between the parties. It is either in express words, by which the lessee manifests his intention of yielding up his interest in the premises, or by operation of law, when the parties without express surrender do some act which implies that they have both agreed to consider the surrender as made. Taylor on Landlord & Ten. [ 6 Ed.] 392 ; Woods on Landlord & Ten., secs. 4921-497; Ball v.
In Clemens v. Brownfield, 19 Mo. 118, it is said: “A surrender by operation of law takes place when, by consent of both parties, another person becomes a tenant of the premises, and the landlord collects rent from him.” In Matthews’ Adm'r v. Tobener, 39 Mo. 115, it is said : “What will amount to a surrender is often a question which may be presumed from facts. An actual and continued change of possession by the mutual consent of the parties will be taken as a surrender by operation by law, etc. If the delivery over of the key was by mutual consent of the parties in the absence of any understanding between the parties," a surrender might well be presumed; and when there was no testimony tending to show an agreement or understanding between
A covenantor cannot by any act of his own, short of performance, discharge or in any manner qualify his express covenant, without the concurrence of the covenantee. But any act of positive prevention by the covenantee will release the covenantor’s performance. Taylor, Land. & Ten., sec. 269. In Smith v. Niver, 2 Barb. 180, it was said “It is undoubtedly conclusively settled by authority, that a second lease, to operate as an effectual surrender of the first, must of itself be effectual to vest in the lessee the term it professes to convey and must bind him to a performance of its conditions. But it has never been decided that a lessor who has consented to a change of tenancy and permitted a change of occupation and received rent from the new tenant as an original and not as a subtenant, can afterwards charge the original tenant for rent accruing during the occupation of the new tenant, No principle
The answer therefore alleged a surrender by operation of law. The acts which are alleged, from which a surrender is implied by operation of law, conclusively show an eviction as well. The entry by plaintiffs into possession, and the leasing the premises to another tenant in place of defendants for a greater term, show facts from which an eviction can be inferred as a matter of law. It seems to us that, interpreting the answer according to the rule of pleading in Stillwell v. Hamm, 97 Mo. 579, it sufficiently pleads a surrender, by operation of law, to let in the proof. Under the system of pleading as it existed at common law “ eviction must be especially pleaded in covenant,” but under the code it would seem that, if the facts are pleaded froin which an eviction can be inferred, the plea will be sufficient. Matthews v. Tobener, 39 Mo. 116.
II. The facts as found by the jury under the instructions were, that the defendants abandoned the plaintiffs’ premises with the intent of surrendering same to plaintiffs, and that plaintiffs took, possession thereof with the intent of releasing defendants from the payment of the rent, and for the purpose of holding the same against said leasehold interest of defendants, and leased the premises to Bartons for a period of five years from January 1,1887, and therefore the authorities cited by the plaintiffs, in support of the third proposition of their brief, do not apply.
If as we think is the fact, the acts of the parties alleged in the answer and found by the jury, were such as a surrender was implied therefrom by operation of law then it existed in spite of the intention of the parties. Wood’s Land & Ten., sec. 497.
Therefore, testimony to the effect that, one of the defendants, after the dissolution of their firm, and after plaintiffs had re-let the premises to the Bartons, offered to pay plaintiffs $1,000 for the discharge from the obligations of said- lease, was immaterial. The surrender was then accomplished and the parties were estopped to dispute it. In this view, one of the partners after dissolution could not revive the obligations of a covenant of the partnership which was discharged, without the consent of all the members.
Perceiving no error prejudicial to the substantial rights of the plaintiffs the judgment will be affirmed.