19 Mo. App. 48 | Mo. Ct. App. | 1885
I regard this case as being directly controlled by that of Prior v. Kiso, 81 Mo. 241. There was evidence in this case tending to show
Here, then, when the lease had yet to run from the September term of the circuit court till April 15, following, plaintiff, by bargain with the principal in the note, without the knowledge or consent of these defendants took back the premises. Judge Philips, in the case referred to in speaking of the release of the securities for the payment of rent by the act of the lessor, says: “So it affirmatively appears from the plaintiff’s side, undenied or uncontradicted by the other, that the contract assumed by the defendant sureties, Prior, by arrangement between him and the Kisos, or one of them, bought back from the lessees a material portion of the demised premises. It was material, confessedly, by his own act, in buying it back. Thus was a part of the land leased, which was a part of the security the sureties had when they executed the collateral undertaking, returned to the lessor. There was no evidence of their assent, but on the contrary, they testified it was unauthorised by them. * * * On this proof, made by the plaintiff, the defendant sureties, were entitled to an instruction to find for them. Instead,of this, however, the court instructed the jury that the fact that John and Herman Kiso sold to plaintiff a portion of the land leased to them, is no defence to any of the defendants in this action. This was error committed against the surety defendants. Superadded to which is the further undisputed fact, that when the lease, under the terms of the contract, had more than a year thereafter to run, the plaintiff took back the whole premises, and held them thereafter. There was no evidence that the sureties assented to this. That fact releases them also.”
For the error in giving the instruction for plaintiff the cause will be remanded for another trial. In con
Taylor on Landlord and Tenant (6 Ed.), section 304, says : “The principal covenant on the part of the landlord, is, that his tenant shall have the quiet Enjoyment and possession of the premises during the continuance of the term.” And again, speaking of this covenant, whether it be express or implied, says in section 305/ “Any interference with the possession of the lessee, more than a mere trespass, by the lessor himself, will amount to a breach of the covenant in whatever form it may happen.” Again, in section 378, he says : “The quiet enjoyment of the premises without any molestation on the part of the landlord, is an implied condition on which the tenant is bound to pay rent. Rent is something given by way of compensation to the lessor for the use of the land, and consequently the landlord’s claim for rent depends upon this, that so far as he is concerned, the land is possessed and enjoyed by the tenant, during the term specified in his contract; for the tenant ought not to make a return for the thing which he- has not. If, therefore, the tenant be at any time deprived of the premises by the landlord’s agency, the obligation to pay rent ceases, because his obligation has force only from the consideration, which is the enjoyment of the premises.”
In Wood’s Landlord and Tenant, on page 564, it is declared: “Whether a lease contains a covenant for quiet enjoyment or not, is, so far as the rights of the tenant are concerned, immaterial, as, in all cases, unless otherwise expressly provided, the law will imply such a covenant. The rule is, that a covenant for quiet enjoyment is implied in every mutual contract for leasing land, by whatever form of words the agreement is made, and for the breach of such covenant, occasioned through the fault of the lessor, the lessee has his remedy for such damages as result to him therefrom.”
This statement of the law is well fortified by the de
It is said that “the consideration of the lessee’s undertaking to pay. rent is the quiet, peaceable, and indisputable possession of the premises leased, and is in its-nature a condition precedent to the payment of rent.” Jackson v. Eddy et al., 12 Mo. 209. It is not meant by this that the lessee shall actually enjoy the possession; for he may wilfully, without cause or excuse, abandon the possession, or refuse, in the first instance, to take it. So long as the lessor commits no breach of the lease and the want of a quiet, peaceable and indisputable possession is attributable solely to the lessee, the obligation to
That part of defendant’s instruction numbered two, in regard to the withdrawing of Thurston’s answer, and giving up possession in consideration of the payment of one hundred dollars, was proper. The conclusions, however, stated in the latter part, are not necessary to aid 'the jury, and tend somewhat to complicate it. As to what would be a fraud on defendants in this case, and especially what would be required to establish a rescission of the note, are questions that need not be put to the jury. So with the fourth instruction ; it is not necessary to conclude it with a statement that such an agreement would be a rescission of the contract. It is enough to tell the jury that if they believe the matters set forth in the instruction, they should find for defendants. A rescission of a contract, as understood in the law, is not applicable to the facts in this case.
The third instruction, as framed, under the views above expressed, was properly refused.
The judgment is reversed and the cause remanded.