99 Mo. 94 | Mo. | 1889
This case has been transferred to this court from the St. Louis court of appeals, under the provisions of section 6 of the constitutional amendment
At the time of. the trial there was, we think, under the facts of the case, no question of practical value or importance as to whether plaintiff had waived the defendant’s forfeiture of the possession by the institution of the second suit for the October rent, for the reason that defendant had voluntarily restored to plaintiff the possession of the premises before the date of the trial. The judgment authorized by the statute is for the recovery of the possession, and for the amount of the rent due, with costs. However actions or questions of this sort may have been anciently regarded, our statute looks both to a recovery of the possession and of the money due as rent, and is as summary as to one as to the other, both being provided for in one and the same judgment. R. S. 1879, sec. 3100.
Plaintiff, it seems, demanded, on October 20, the rent for October as well as the two preceding months of September and August. By the terms of the lease the rent became due the first of each month, so that the October rent was past due though not fully earned when demanded. In the suit in question, however, plaintiff in his affidavit omitted the October rent, and states the amount actually due to be the rent of the two prior months. There was no question that the rent thus demanded in this action for said two months of August and September was due when suit was brought, and still due and unpaid at the time of trial.
Upon the given facts, we think, the statute and law are to be understood and applied as the same are understood and construed by the majority opinion of the court of appeals, and as there held that the judgment of the circuit court for defendant was erroneous.
