141 Mo. App. 476 | Mo. Ct. App. | 1910
The plaintiff’s action is by attachment to secure an alleged landlord’s -lien. The judgment in the trial court was for the defendant.
It appears that plaintiff was the owner of a tract of land which he rented to one Whitehead by a written contract which provided that the land should not be sublet without plaintiff’s consent. Plaintiff took Whitehead’s note for the rent money. The verdict being for the defendant, we must assume to be true all that which the evidence in his behalf tends to prove. There was evidence to the effect that Whitehead sublet a portion of the premises to defendant and that before the latter rented of Whitehead he talked with plaintiff about it and plaintiff encouraged him to rent it. Defendant then asked him what he had for security for the rent and he answered nothing hut Whitehead’s note, and that “was good.” That another wanted to rent of Whitehead but that he, plaintiff, had told the latter to let defendant have it. That he would not have rented if plaintiff had not positively told him he only held Whitehead’s note for security for rent. That after-wards plaintiff requested that he buy Whitehead’s crop, or a part of it, as he thought the latter was wasting
Plaintiff takes the position that the evidence does not tend to show a waiver, but in this we regard him as clearly in error, — and whether there was a waiver was an issue of fact fully and properly submitted by the instructions of the court, one of plaintiff’s being amended by the court so as to keep that phase of the case before the jury. The legal question in the case is governed by what was said in Fulkerson v. Lynn, 64 Mo. App. 649. The verdict was manifestly for the right party and is affirmed.