Leggett v. Louisiana Purchase Exposition Co.

134 Mo. App. 175 | Mo. Ct. App. | 1908

BLAND, P. J.

(after stating the facts). — At common law where a tenant for a year or a shorter term holds over after the expiration of his term, the law presumes that he intends to continue the tenancy for the length of his original term and on the same terms in respect to rent, and all that is necessary to complete the contract for a new term is the consent or acquiescence of the landlord. But any new agreement between the landlord and tenant relative to the continued occupancy of the leased premises by the tenant precludes the landlord from charging the tenant with liability for a full term; and where the landlord by his conduct leads the tenant to believe that he will not be charged as tenant for an entire new term, the landlord cannot change his position and charge the tenant for an entire term. [Jones on Landlord and Tenant, sec. 210.] And when the parties are negotiating for a new lease and the tenant remains in possession pending the negotiations' with the express or tacit consent of the landlord, the landlord cannot treat him as a tenant holding over for another term. [24 Cyc., n. 32.] In such circumstances he becomes a tenant at will. [18 Am. and Eng. Ency. of Law, p. 184, sec. 5; Grant v. White, 42 Mo. 285.]

The court gave the following instructions for plaintiff:

“1. The court instructs the jury that under the pleadings and the evidence in this case, their verdict should he for plaintiff, unless the jury believe from the evidence that on September 30, 1903, upon which date defendant’s .original lease of the premises here involved expired, plaintiff and defendant were, negotiating for a new lease of said premises and it was their mutual intention and understanding that defendant’s holding over and continuing to occupy said premises was not to create a new tenancy for the same term and under the same conditions as those specified in the original lease, or unless the jury believe from the evidence that thereafter plaintiff accepted the possession of said premises from defendant with the intention of releasing .defendant from any further liability for rent therefor.

“2. The court instructs the jury that if they believe from the evidence that on or about the eighth day of September, 1903, plaintiff, through her agent, submitted a final proposition to defendant for a new lease of the premises here involved, then defendant was entitled to a reasonable time within which to accept such proposition, and if the jury believe from the evidence that defendant did not accept such proposition within what the jury may find from the evidence was a reasonable time under all the circumstances, then such proposition lapsed and was no longer in force, and if the jury further believe from the evidence that such proposition lapsed before defendant’s original lease expired, and that defendant held over and continued to occupy said premises after the expiration of said original lease, then such holding over created a new tenancy under the same terms as specified in the original lease and your verdict should be for plaintiff, unless the jury further believe from the evidence that plaintiff thereafter released defendant from its liability to pay tbe rent nnder said new tenancy.

“4. Tbe conrt instructs tbe jury that before they can find that at tbe expiration of defendant’s original lease of tbe premises here involved, negotiations were pending between tbe parties for a new lease, they must find and believe from tbe evidence that tbe offer of a seven-montbs’ lease made on or about September 8, 1903, by plaintiff’s agent to defendant was still in force and bad not lapsed.” .

Tbe conrt gave tbe following instruction for defendant :

“1. Tbe court instructs tbe jury that if you believe and find from tbe evidence that tbe defendant notified tbe plaintiff or ber agent, before tbe expiration of tbe lease in evidence, that it would not renew said lease, and thereupon tbe plaintiff and defendant entered into negotiations for a new lease upon different terms, and that sucb negotiations continued until after tbe expiration of tbe term of tbe original lease, and that defendant beld over with tbe consent of tbe plaintiff to await tbe result of sucb negotiations and that it was not tbe intent of tbe parties that defendant’s so bolding over should and would create a new tenancy for tbe same term and under tbe same conditions as those specified in tbe original lease, and that defendant removed from tbe premises in evidence on or about tbe thirty-first day of December, 1903, then you will find for the defendant.”

Plaintiff’s right to recover is conceded by defendant, unless negotiations were pending after September 30, 1903, tbe day on which tbe original lease expired. Tbe nncontradicted evidence shows that negotiations for a new lease were put on foot about September 8th, by Asbfortb banding an unsigned lease for seven months to McG-ibbons, defendant’s agent, to be forwarded to St. Louis for tbe approval and signature of Mr. Francis, president of defendant company, or to be rejected by him. This paper was never heard of afterwards, but on October 19th, Ashforth telephoned McGibbons to know whether or not the lease had been signed and returned, and when informed by McGibbons that it had not, replied, “As you know unless the lease is signed the Exposition Company will be responsible for the lease for a period of a year,” and stated tbey would waive that if the lease was signed. This language strongly indicates that Ashforth was willing to extend the time in which the lease might have been signed: in other words, to keep the negotiations open. Therefore, it was error for the court to submit to the jury to find, as was done by plaintiff’s second instruction, whether or not defendant had been given a reasonable time to’ accept or reject the proposed lease, for the parties could unquestionably hold the negotiations open as long as both consented thereto; and as the evidence tends to show plaintiff’s agent treated the negotiations as open until October 19th, the real question in the case is whether or not defendant, at any time after the lease was received at St. Louis, took it up and considered it with a view of accepting or rejecting it, or held it for the purpose of misleading plaintiff, in order that it might hold' on to the premises until it was ready to surrender them. If defendant, after receiving the prepared lease, did not take it up, or intend to take it up, but paid no attention to it, then negotiations were ended when defendant concluded not to act upon the proposed lease, and plaintiff is entitled to recover. On the other hand if defendant took up the lease, or intended to’ take it up and accept or reject it, then negotiations were pending, and according to the evidence were kept open as late as October 19th, and plaintiff cannot recover. For error pointed out in instruction numbered 2, given for plaintiff, the judgment will be reversed and the cause remanded. We discover no error in the other instructions given.

All concur.