Langenberg v. Schmidt

69 Mo. App. 281 | Mo. Ct. App. | 1897

Bond, J.

Charles H. Heer Dry Goods Company, a corporation, was on the second day of August, 1893, the owner of the farm in controversy. On that day it leased the same to ¥m. B. Schmidt for three years for the annual rental of $150. By mesne conveyances the title in fee to said land was vested in H. F. Langenberg in May, 1894. On the sixth of August, 1895, the latter exhibited his deeds to Schmidt and demanded the rent then due, which being refused, the present action for the possession of the property was begun before a justice, where judgment was obtained by plaintiff, from which defendant appealed to the circuit court, where, upon a trial before the court, sitting as a jury, plaintiff again, obtained judgment from which defendant appealed to this court.

suit on valid contract: subsequent suit on independent OBLIGATION: ELECTION BETWEEN INCONSISTENT REMEDIES. On the trial it developed that after the acquisition of title by plaintiff to the premises in dispute, he became the assignee of a contract between certain persons, which, by its terms, provided tor a delivery of the possession of the , property. The obligors m this contract were not- the grantors in any of the conveyances to plaintiff. The provision of this contract as to a delivery of the possession of the property not being complied with, plaintiff brought an action .thereon for damages and recovered $33, which was paid. It is insisted by appellant that by so doing plaintiff elected between two inconsistent remedies, thus disabling himself from bringing the present action. It must be borne in mind that the present defendant was not a party to that proceeding. The contract upon which it was brought was not executed by his dessor, hence he was not in privity with its terms. At the time plaintiff sued on said contract (September, 1894) he had no cause of action against defendant, for the reason that the rent accruing upon the land after its conveyance to plaintiff did not mature until August 2, 1895. Under this state of facts it is evident that the doctrine of election between two inconsistent remedies has no application. If plaintiff was the assignee of a valid covenant on the part of persons between whom and the present defendant there was no privity, there would be no reason why plaintiff might not sue on such a contract, without estopping himself from thereafter suing defendant upon an independent obligation on his part.

EXHIBITION OF certified copy of lost deed, Competency of. It is next complained that at the time plaintiff exhibited his muniments of title to defendant and demanded the rent due, that one of the conveyances was evidenced only by a certifiecl copy. It was shown on the trial that one of the original deeds had been lost, and could not be found after diligent search. Under such circumstances, it was not incompetent for plaintiff to exhibit a certified copy of the lost deed as evidence of title.

Finding no reversible error in the record, the judgment will be affirmed. It is so ordered.

All concur.