9 Mo. App. 376 | Mo. Ct. App. | 1880
Lead Opinion
delivered the opinion of the court.
The plaintiff sues upon a lease, executed by his assignor to the defendants, of certain premises in the city of St. Louis, for the'term of five years from the first day of January, 1874, at the yearly rent of $12,500, payable monthly. The lease contained the following covenants: “The said party of the second part, on his part, agrees to pay the rent herein reserved, and double rent for every day they, or any one else in their name, shall hold on to the said premises after the expiration of the term..hereby created, or its forfeiture for any cause whatever; to surrender the
Questions as to the extent to which a recovery upon part •of a claim, or series of claims, will operate to bar an action •upon the residue, have sometimes been very difficult of solution. In cases of tort the rule is very simple. Where there has been a recovery of damages on account of a trespass, no new action'can bo founded on the same wrongful act, even though additional damages may have arisen which* did not exist at the institution of the first suit. Hodsoll v. Stallebrass, 11 Ad. & E. 301; Fetter v. Beale, 1 Salk. 11. In actions founded on contract the test question generally is, whether the second suit is for a breach of the same or a different undertaking from that upon which the first suit was maintained. There may be in the same instrument •several separate promises or undertakings for as many distinct considerations. Thus, in a lease for one year, the rent to be paid monthly, there are twelve separate undertakings of payment, in effect — one for each month of the term. There are also as many separate considerations.
It is sometimes said that if the cause of complaint in a second suit might have been included in' the first, but was not, the second action will be barred by a judgment in the first. Bagot v. Williams, 3 Barn. & Cress. 235. But it does not follow that a second action may always be maintained when the cause of complaint could not be introduced into its predecessor. This fact, as. we have already seen, is verified in actions founded in tort. In actions of contract the bar will be complete whether the cause of complaint could or could not have been included in the first proceeding, if only the second be an attempt to enforce the same contract or undertaking. Thus, in Fish v. Folley, 6 Hill, 54, the defendant’s intestate had covenanted, in 1822, to furnish the plaintiff with sufficient water, under certain limitations and exceptions, to carry the plaintiff’s fulling-mill and carding-machine. In January, 1835, the plaintiff sued for a continuous breach of the covenant, dating from 1826, and got judgment. In 1840 he again sued on account of a continuous omission to supply water since 1835, claiming that this was a new breach, which could n’ot be included in the former suit. It was held that, the contract being entire and the same, a total breach put an end to it, and to allow a second recovery “would be splitting up an entire cause of action, in violation of established principles.” In Stuyvesant v. Mayor, 11 Paige, 414, the complainant had granted to the corporation of the city of New York certain lands for the purposes of a
It must here be observed that there is a clear distinction between a continuing covenant and a continuous breach, or several breaches, of a single and determinate covenant. In the first, an idea is involved of as many contracts as there are successive violations, since the continuing covenant only repeats itself for every successive period of which a breach may be predicated. It thus resembles somewhat an open account, in which, while each delivery creates an additional demand, a suit for the whole proceeds upon a single implied agreement that an account may be opened and continued either for a definite period or at the pleasure of one or both of the parties. Secor v. Sturgis, 16 N. Y. 558. The plaintiff must include all the items that have accrued up to the commencement of his suit. Yet he may afterwards sue for items that accrue subsequently, the second suit not being founded on the original agreement, but on an implied renewal or repetition of it. In the case of a single and determinate covenant, the judicial ascertainment of a breach puts an end to its vital and suable force as effectually as is done in the case of a recovery for an assault and battery. If such a covenant was the ground of action upon which the plaintiff in this case obtained his judgment for the Jan
A case which bears a striking analogy with the one before us is that of Stein v. Steamboat Prairie Rose, 17 Ohio St. 471. The contract was in these words: “I have this day hired barge Mary Jane, of Albert Stein, for the sum of ten dollars per day, until delivered back in Cincinnati, in like good order as received.” This was dated August 13, 1862. On January 1, 1863, Stein sued for the hire of the barge up to that date, and obtained judgment. On February 15, 1864, he sued for the barge-hire from January 2, 1863, to July 22, 1863, at which last date he repossessed himself of the barge. The court held that the contract was entire, and not divisible; that, as no time was specified for the return of the barge, it was to be returned within a reasonable time; that by suing in January, 1863, the plaintiff in effect averred that the reasonable time had expired, and the whole debt became due ; that he then exhausted his remedy on the entire contract, and the action thereon could not be sustained.
If we could treat the defendant’s undertaking, in this case, to pay double rent per diem for occupancy after the expiration of the term as a continuation in modified form of the covenant for monthly payments during the term, there would be no difficulty in holding that successive suits might be maintained, if not daily, at least monthly, for every day’s occupancy on those terms. But this would be utterly inconsistent with the foundation of the present suit. There is here no continuing covenant for occupancy by the lessees in consideration of their periodical payments. On the contrary, the covenant is for a surrender of the premises. In this there is-nothing of which it can be said that there is a succession of undertakings mutually agreed, upon. The lessor does not agree to the continued occupancy, but stipulates against it. The occupancy is in itself a breach, and the specified per diem is simply an agreed measure of
Rehearing
delivered the opinion of the court on a motion for a rehearing.
It is not questioned that when a tenant holds over after the expiration of his term he may be held by the landlord to a continuing-responsibility according to the terms of the former lease; nor that, under such circumstances, in the absence of any agreement or stipulation, the law will presume the tenancy to continue according to the terms of the contract which has expired; nor that, if the landlord has given notice to the tenant, before the expiration of the term,- that if he shall hold over he will be chargeable at a higher rate, and the tenant makes no response, but holds over, his silence will imply an asseofrto the terms proposed by the landlord, and he will be bound accordingly. These propositions cover all that is decided in Hunt v. Bailey, 39 Mo. 257, which is cited in support of this motion as “ a controlling decision to which the attention of the court has
The fundamental error in the argument before us lies in the assumption that the defendants had an option to surrender the premises or to hold them at the increased rent, with the deduction that their holding over was such an exercise of the option as entitled them to be treated still as tenants after the expiration of the lease. But where, in this record, do we find such an option in the defendants? Certainly not on the face of the lease; for there it is expressly stipulated that the lessees shall surrender the premises at the expiration of the term. It will not be denied that under this stipulation the landlord could have ousted the tenants on any day after the end of the lease. How, then, could there be an option in one party to stay or not to stay, when the other party might compel him to leave? In some of the cases cited, an option was created in the tenant by express proposal from the landlord, who thus waived his right to eject, upon terms which were accepted by the tenant. In others, the landlord’s consent, express or implied, to the continued occupancy introduced the element of agreement, which is always essential to the relation of landlord and tenant; and so, the only question before the court was as to the constituents of the agreement, and how far they were to be discovered in the terms of the original lease. In every one of the cases cited to show that the present plaintiff might treat the defendants as his contin
The motion for a rehearing is overruled.