45 Mo. App. 590 | Mo. Ct. App. | 1891
— Plaintiffs leased to defendant for the period of five years certain real property. The lease contained the following provision : “For the use and rent thereof the said John W. Barnes hereby promises to pay said Francis P. Devens, or to his order, $375 per month for the whole time above stated, and to pay the same monthly on the first day of each month.” The defendant Barnes on February 17, 1887, assigned his lease to Bennett & Hill, and thereafter the plaintiffs collected the rent of the premises from Bennett & Hill and others actually in the possession thereof; but without any agreement or previous understanding with defendant. Judgment was given for plaintiffs and defendant appeals. In defendant’s brief it is stated that: “The position of the defendant is that when Barnes assigned the lease to Hill & Bennett on the seventeenth of February, 1887, he left the premises, and plaintiffs collected rent from the tenants in actual possession until the first of January, 1890, and that it was a surrender by the defendant, and an acceptance by plaintiffs, and that plaintiffs cannot, after the tenants in possession failed, call again upon the defendant for rent. We say this notwithstanding Barnes’ covenant to pay rent for the whole time for which he took the lease.” Plaintiffs assert the contrary of this proposition, which is the only question in the case.
Defendant concedes, in effect, that, if the case of Whetstone v. McCartney, 32 Mo. App. 430, is sound law, he must fail in his appeal. His contention being that the facts in that case and in this case show a surrender by operation of law. In this case there is an express promise on the part of defendant, the original lessee, to pay the rent for the whole term. It is undoubtedly the law that a party’s obligation to pay rent may rest separately on either of two reasons, one by privity of contract and the other by privity of estate. In either case there may be a surrender; but I take it, that much less will constitute a surrender in the case of
That the position taken in Whetstone v. McCartney may not be further questioned, we take the following extracts from high authority: Lord Kenyon said in Mills v. Auriol, 1 H. Black. 433: “ It is extremely clear that a person who enters into an express covenant in a lease continues liable on his covenant notwithstanding.the lease be assigned over. If the lessee assigns over his lease and the lessor accepts the assignee as his lessee, either tacitly or expressly, it appears from the
Cases from our supreme court have been cited as being directly opposed to the foregoing authorities. In Matthews v. Tobener, 39 Mo. 115, it does not appear whether there was an express covenant or promise on the part of the original tenant. In Hutchinson v. Jones, 79 Mo. 496, there is a quotation made from Kerr n. Clarke, 19 Mo. 132, which is not applicable to cases of express covenant. The matter decided there was that an answer pleaded a surrender which alleged that the original tenant did not owe the landlord anything; that the payment he made had been accepted by the landlord as the balance in full of rents, and that the
A bare disconnected quotation from Kerr v. Clarke, 19 Mo. 132, can be made to do service in favor of defendant’s contention in this case. It is ••'•there said that, “The actual change of possession from the lessee to another tenant, and the acceptance of rent from him by the landlord, operates a surrender.” But the whole opinion shows that to constitute a surrender there must be consent of the landlord “to accept the possession, and discharge the defendant as his tenant.” Besides, it does not appear in that case whether there was an express promise to pay rent. So, the following quotation is found in Prior v. Kiso, 81 Mo. 241: “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, wil’ be taken as a surrender by operation^ of law, whether the possession is delivered to the landlord himself or to another.” But as showing what the court understood from that quotation, it is immediately followed by the following: “It would be grossly inequitable for the lessor, after he has consented for the lessee to quit and look to another for the rents, to return to this compact, when he should afterwards fail to collect from him whom he accepted as tenant instead.” The law as declared in Whetstone v. McCartney, and the other authorities before mentioned, is recognized in Clemens v. Broomfield, 19 Mo. 118, in an opinion written by the same judge who wrote for the court in Kerr v. Clarice, supra. It is there said that: “The present
II. A matter occurs to us in the course of our consideration of this case, which we deem of sufficient importance to mention. In Whetstone v. McCartney, the lease was under seal; in the case at bar it is not. Does such difference alter the nature of the express promise? Our opinion is that it does not. In order that the promise might be such a covenant as would run with the land and thereby bind the subtenant to the amount and character of rent stipulated for, it may be there should be a technical covenant, that is, under seal. But in order to hold the original tenant on his promise — in order to hold him by privity of contract, we see no reason why his promise, not under seal, would not suffice.
The judgment with the concurrence of the other judges is affirmed.