Morrison v. de Donato

76 Mo. App. 643 | Mo. Ct. App. | 1898

Bond, J.

This cause was tried in the circuit court on the following agreed statement of facts:

“Now at this day come the parties to the above entitled cause and stipulate and agree that the ¿same, being numbers 5,289 and 5,290 of the files of this honorable court, wherein Julia A. 8. Morrison and Virginia S. Peugnetare plaintiffs, and Florian de Donato, is defendant, may be. tried and submitted together, and that the following are the facts upon which the same are submitted to the court for its determination, to wit:' “That on and prior to the fifteenth day of July, 1898, the defendant was and had been the tenant ■of plaintiffs of premises and storeroom known as number 519 Olive street, in the city of St. Louis, Missouri, whereof the plaintiffs were the owners, defendant being tenant thereof from month to month (the agreement for such tenancy not being in writing) •at the rate of $350 per month, payable monthly in advance, and that on said date said defendant was in arrears for rental of said premises for a balance due and unpaid for the month of May, 1896, and for rental for the entire month of June, 1896, due and unpaid, and that ■defendant had on said fifteenth day of July, 1896, paid no rental for said month of July; that on said fifteenth day of July, defendant, at the request and with the consent of plaintiffs, vacated said premises, terminated ■said tenancy and delivered possession of the rented premises to plaintiffs; that thereafter, on the fourth ■day of September, 1896, said plaintiffs instituted three suits against defendant before the Honorable Richard B. Haughton, justice of the peace for the Fourth District of the city of St. Louis, Missouri, all said suits being filed at one and the same time, one thereof being for rental of said premises 519 Olive street, for the month of May at the rate aforesaid of $850 per month, one for rental thereof for the month of June at said rate, and one for rental of said premises for one half of the month of July, 1896, at the rate aforesaid, to wit, $175; that said suits were one and all returnable and set for trial on the nineteenth day of September, 1896, at which time defendant and his counsel appeared, and by consent, and at the request of defendant’s counsel, said suits for rental for the months of June and July were continued until the twenty-fifth day of September, 1896, but on said nineteenth day of September, said suit for rental for the month of May was tried and submitted, and a judgment rendered in favor of plaintiffs for the sum of $100 on the twenty-first day of September, by said justice, which judgment and costs were thereafter, to wit, on the twenty-third of November, 1896, satisfied by defendant by payment of same to the constable of said district; that on the second day of October, 1896, said two remaining suits, being the causes hereby submitted to this honorable court for its determination, were tried and submitted before and to said justice, being tried and submitted together upon testimony substantially establishing the foregoing facts, and thereafter said justice, on the fifth day of October, 1896, rendered judgment for defendant in both said causes, from which judgment plaintiff appealed to this honorable court. That defendant after said fifteenth day of July, 1896, ceased to be tenant of plaintiffs, and that defendant has paid no rental to plaintiffs for the premises aforesaid for the months of June and July, and the same is now unpaid.” And upon which facts so agreed on the court rendered judgment Lor defendant, and also overruled plaintiff’s motion for new trial, from which ruling plaintiffs appealed.

Cno?sp°it dea-n debtor’s c'on-Where causes are tried upon an agreed state of facts, the judgment is a mere legal conclusion as upon a special verdict, hence the only question presented is as to the propriety of the judgment. We do not think plaintiffs were entitled to recover under the admitted facts. It has been too often held to need a citation of authorities, that a creditor can not split his demands against a debtor without the latter’s consent. In the case at bar there was a single oral contract of letting where-under a monthly rent was reserved. When the three suits were begun by plaintiffs the entire indebtedness claimed in each had accrued; all of it, therefore, should have been embraced in one action, unless plaintiffs intended to forego what was not so contained. There having been a recovery and satisfaction in one action, there can be no further recovery for any part of the debt not sued for in that action. For if this could be permitted it would result in a violation of the rule against the splitting of demands in invitum as to the debtor. Pettit v. Ins. Co., 69 Mo. 320. The judgment in this cause is manifestly right, and is affirmed.

All concur.