157 Mo. App. 108 | Mo. Ct. App. | 1911
— This is a suit for an installment of rent. The finding and judgment were for defendant and plaintiff prosecutes the appeal.
It appears that defendant leased from plaintiff certain premises numbered 21-23 West Thirty-fourth Street in New York City for occupancy as its eastern office on January 1, 1903. The lease was in writing for a nine-months’ term at the stipulated rental of $3000 per year,
This suit proceeds for $750, said to have accrued under the common law rule with respect to the last quarter, as though a new lease had been entered into because of defendant’s holding over. The $750 involved pertains to the last quarter, commencing April 1, 1904, and ■ending July 1st of the same year, as if a new lease were executed between the parties for nine months under the identical terms and provisions as contained in the prior one. Another suit, it is said, is pending in New York for the second quarter on the same theory.
At common law, if a tenant holds over after the expiration of his term, the law presumes he intends to con
As before stated, the suit proceeds on the theory that by holding over, a new term was created for a period of nine months at the same rental agreed upon in the prior lease; but it can not be sustained, if it appears that negotiations were pending between the parties pertaining to a new term when the old one expired ■on September 30, 1903. By its answer, defendant set forth facts which, together with its-admissions, show a prima facie right of recovery in plaintiff and pleaded in ■ avoidance two affirmative defenses, the first of which
The principal argument for consideration on appeal relates to the action of the trial court in permitting the introduction in evidence of certain letters from the secretary of defendant exposition company to its agent, Me-Gibbons, in New York, pertaining to the proposed lease which was submitted by plaintiff to defendant about the 9th of September, 1903, and to a conversation between Governor Francis, President of the Exposition Company, and Mr. Stevens, its secretary, pertaining to the proposed lease and what instructions should be communicated to McGibbons thereabout. It is argued these matters should have been excluded from the jury for the reason that the contents of the letters from defendant to its New York agent, McGibbons, were not shown to have been communicated to plaintiff at the time, and that the conversation between President Francis and Mr. Stevens was not had in the presence of plaintiff or her agent. On first impression, it would seem that the objection to such testimony should have been sustained, but we believe that, in view of other uncontroverted facts in the case and of the fact that the real issue or crucial question was whether or not defendant was actually considering the proposed new lease from September 9th or 10th until on and after the 30th of that month, when the old one expired, it was competent as of the res gestae to the end of elucidating defendant’s intention on the question as to whether or not it was then considering the proposition for a new lease with the purpose of contract
A Massachusetts case is quite similar in this respect. There, the suit proceeded against defendant fosrents on the theory that he had accepted the terms of a lease by retaining it. It was shown the lease had been signed by plaintiff, purporting to demise the premises- and sent to defendant by his son who placed it upon defendant’s desk. The Supreme Court declared that
The principal instruction for plaintiff complained-of conforms precisely to the view expressed by this court on the former appeal and for that reason it will not be-further considered.
On defendant’s second defense, pertaining to a surrender of the premises, the proof showed that immediately after defendant removed therefrom, on December 31st, some one placed a desk and one or more chairs therein and that they were frequently seen in the office. It was further shown that defendant’s agent delivered the keys of the premises, to plaintiff’s agent by dropping them into the mail box in the evening when the office off plaintiff’s agent was closed and that such agent took charge of and retained the keys. For plaintiff, the evidence tended to prove that another tenant, an ice machine company, had left the desk and chair in the office for its own convenience and that plaintiff did not let the-premises to another until July 1, 1904. On this feature-of the case, the court correctly declared the law as to-what is essential to operate a surrender, and required' the jury to find, before sustaining this defense, that, plaintiff took possession of the premises with the intent of releasing defendant from further payment of the rent. The rule of this instruction is the sound law on the question and conforms precisely to the opinion of this court on the first appeal. [See Leggett v. Louisiana Expo. Co., 121 Mo. App. 70, 97 S. W. 976.] Plaintiff requested an instruction on the same question from her standpoint which the court refused, but in view of that given by-
We discover no reversible érror in the record and the judgment should be affirmed. It is so ordered.