75 Mo. App. 529 | Mo. Ct. App. | 1898
In July, 1893, the property was owned by F. W. Chaffee, who then made a written lease thereof to one' Laingor for a term of two years with a privilege of five, stipulating therein that “said second party (Laingor) has the privilege to sub-rent a part of the first story to A. Parker.” The lease also provided that the rent ($40) should be paid monthly in advance on the first day of each month. It seems that Laingor, the lessee, and Parker, the defendant, jointly occupied the first floor&emdash;the first as a barber shop and the latter for a saloon. Chaffee, the landlord, continued to collect the monthly rent from Laingor until the latter part of the first rental year, when, as the evidence shows, Laingor without notice to Chaffee abandoned the property.
The question then is mainly one of fact — was the Laingor lease surrendered or assigned? The trial court found it to be a surrender and not an assignment. I think the finding supported by the evidence, and the decision should be sustained. The facts are: Chaffee and Laingor executed a' written lease for a term of
It is true that where demised premises are found in the possession of one not named in the lease the presumption arises that such occupant is an assignee of the lease (2 Taylor’s Landlord & Tenant [8 Ed.], sec. 429, but it is only a presumption and this is overcome in the present ease by abundant proof that there was no assignment of the lease and none ever intended. When Laingor left the building in 1893 (or the beginning of 1894) there is no pretense that he assigned his term to defendant, but the evidence quite clearly shows the contrary. For, as already stated, Laingor did not even advise defendant that he had a lease, much less did he attempt to assign it to him, but to the contrary, the evidence shows that Laingor, after abandoning the property, destroyed the lease. Chaffee, the landlord, seems to have submitted to Laingor’s surrender of his term, for he at once accepted defendant as tenant. This made the surrender complete, and from that time on Laingor’s leasehold interest became extinct. Huling v. Roll, 43 Mo. App. 234. This was a surrender by operation of law and which the statute of frauds does not require to be' in writing.
The judgment is manifestly for the right party and will be affirmed.