24 Mo. App. 48 | Mo. Ct. App. | 1887
delivered the opinion of the court.
This is an action for the recovery of rent. Judgment was rendered in favor of the defendant by the justice before whom the suit was originally tried, and also in the circuit court, where the cause was tried on appeal. The plaintiffs appealing from this judgment assign for error that, the court admitted incompetent testimony ; that it refused legal instructions asked by the plaintiff, and gave erroneous instructions for the defendants, and of its own motion.
The defendants were lessees of the plaintiffs, under a written lease, for a term of years, expiring on the-first day of October, 1885, at noon, of an office or bank room, at a yearly rent of two thousand dollars, payable
The plaintiffs gave evidence tending to show that on October 1, 1885, at noon, their agent was on the premises, ready to receive possession, and that he called twice more during the same day ; that he found the premises locked; that none of the defendants were present, and that he’ subsequently demanded the rent for October, which the defendants refused to pay.
The defendants gave evidence, against the plaintiffs’ objection, tending to show that they moved all their remaining effects from the premises, September 30, to their new office just across the street; that the plaintiffs’ porter in charge of the building, for some purposes, was present when this was done; that they left all the keys which they had received from the plaintiffs in the doors, and left the doors unlocked. The defendants admitted that none of them were present on the premises, October 1, 1885.
At the close of the evidence the court instructed the jury, in substance, that if the defendants moved out of the premises, prior to the expiration of the term, locked the doors and kept the keys, and did not attend on October 1, when the plaintiffs’ agent called to receive a. surrender, the plaintiffs were entitled to recover, but if the jury found that the defendants’ version of the transaction was the true one, then the defendants were entitled to a verdict. . ,
We see no contradiction in these instructions, nor
As no formal act is required in this state to determine •.a tenancy which expires on a day certain, any act on the part of the defendants, clearly indicative of the fact that they finally vacated the premises, so that the landlord might take possession of them at the expiration of the term, discharged them from the payment of rent .after such expiration.
The plaintiffs’ main argument rests on the proposition that, as the premises were not vacated on the day of the expiration of the term, but on -the preceding day, the acts shown by the testimony did not amount to a surrender. In support of that view the cases of Prentiss v. Warne (10 Mo. 601); Kerr v. Clark (19 Mo. 132); and Livermore v. Eddy (33 Mo. 547), are cited. It will ■be seen, however, that all these cases bear only on the ■question, as to what will amount to a surrender, by operation of law, of the residue of an existing term, and not ■on the question as to what will amount to a surrender of the premises at the expiration of the term.. If the action. in this case had been brought for the rent between September 30 and October 1, the cases would be in point. If the action were brought for the increased rent of a renewed term for three years, they might have a possible application, but as it is brought for a mere holding-over under the lease, they can have no application whatever.
In Schuyler v. Smith (51 N. Y. 309), and Hemphill
We do not desire to intimate that the plaintiffs in this case might not have maintained an action for damages, if any, sustained by the abandonment of the premises, prior to the expiration of the term, or by the failure of a formal surrender and a turning over of the premises on the day of the termination of the term, in ■the same condition in which such premises were received. That is a question wholly different from the one presented here. It is clear that under the facts, as found by the jury, their claim for rent is untenable. .
All the judges concurring, the judgment is affirmed.