Neiswanger v. Squier

73 Mo. 192 | Mo. | 1880

i.

Sherwood, O. J.

By the terms of the lease the right of plaintiffs to remove the building during their term was granted. That lease, before its expiration, was extended with all the incidents of the original lease, inclusive of the right of removing the building which had been erected. This verbal agreement is not obnoxious to the objection that it was not evidenced by a note or memorandum in writing. For where, as in this instance, there is a holding over by mutual consent, or by consent express or implied, the right of the tenant after the termination of the original lease, to remove the building will not be forfeited, nor such building become the property of the landlord. Finney v. St. Louis, 39 Mo. 177, and cases cited. And in the absence of opposing evidence, the presumption goes that the tenant does so hold over. Ib.

II.

In consequence of the agreement between the landlord and tenant, the building was personal property, and to be so regarded. Hines v. Ament, 43 Mo. 298, and cases cited; Priestley v. Johnson, 67 Mo. 632. The contract of the parties and their subsequent conduct relative to the building, utterly forbid the idea of abandonment; the privilege of removing the building still remained to plaintiffs; and the act of defendant in denying to them the exercise of that right must be regarded as a conversion, since “ a wrongful taking or assumption of a right to control or dispose of. property, constitutes a conversion. Indeed, any wrongful act, which negatives or is inconsistent with the plaintiff’s right, is per• se a conversion.” Schroeppel v. Corning, 5 Denio 236; Williams v. Wall, 60 Mo. 318, and cases cited; Huxley v. Hartzell, 44 Mo. 370, and cases cited.

III.

As the property was personal, and defendant converted it, the measure of damages was properly declared in the second instruction given at plaintiffs’ instance. Spencer v. Vance, 57 Mo. 427, and cases cited. A wrong-doer will not be permitted to advantage himself by his own wrongful act. Had defendant sold the lot with the building on it to a stranger, he would have been answerable for whatever sum the building enhanced the valuation of the lot. Can the rule be different because the conversion manifests itself by retention of the property, rather than by some other method ? The criterion in such cases is the worth of the property to him who appropriates it. The Chicago, etc., Co. v. Dunlap, 32 Ill. 207. Eor these reasons, the opinion is entertained that the instructions were, taken as a whole, a correct exposition of the law applicable to the facts of the case.

So far as concerns the petition, we think it is substan-. tially good; that it states a cause of action. Discovering no error in the record, we affirm the j udgment.

All concur. Rat, J., did not sit.