Prentiss v. Warne

Citation10 Mo. 601
PartiesPRENTISS v. WARNE.
Decision Date31 March 1847
CourtUnited States State Supreme Court of Missouri

APPEAL FROM ST. LOUIS COURT OF COMMON PLEAS.

HAIGHT & SMITH, for Appellant. 1. The tenant removing and giving the key to the landlord, amounts to a surrender, by operation of law. Chitty on Contracts, 2nd ed. 329; Grimman v. Legge, 8 Barn. & Cres. 324; Whitehead v. Clifford, 5 Taunt. 518. 2. Where a tenancy is thus determined in the middle of a quarter, whilst the rent is current, the tenant (without express agreement) is not liable for a proportion of the current quarter's rent, from the preceding quarter day to the day of quitting. Chitty on Contracts, 330; Hull v. Burgess, 5 Barn. & Cres. 332; Grimman v. Legge, supra; Yule v. Yule, 24 Wend. 76; Randall v. Rich, 11 Mass. 494, 488. This transaction was with Bredell, the original landlord. It will be remembered, Warne had no interest in the premises, except his liability to pay rent. The transaction between Bredell and Holm discharged Warne, and put an end to the lease. This falls within the principle that a payment to the original landlord is a good payment and will discharge the tenant. Chitty on Contracts, 335; 4 Durn. & East, 511.

PRIMM, for Appellee.

McBRIDE, J.

This was an action of assumpsit brought in the Court of Common Pleas of St. Louis county, by Warne against Prentiss. The declaration contains several courts; the first averred a special contract for the leasing of a tenement for two years and three months, at annual rent of $1,000, to be paid quarterly, & c.; the second for use and occupation. The pleas were non-assumpsit, set-off and payment, upon which issues were taken and a trial was had, which resulted in a verdict for the plaintiff, with the assessment of damages, and a judgment thereon. The defendant filed a motion for a new trial, because the verdict was against evidence, the damages assessed are excessive, and the court erred in refusing the defendant's instructions. His motion was overruled by the court, to which he excepted, and brings the case here by appeal.

The bill of exceptions shows, that on the trial in the court below, the following facts were elicited: On the 12th October, 1840, Edward Bredell leased to Thomas S. Warne a storehouse and cellar, situate on Main street in the city of St. Louis, for the term of three years, at the yearly rent of $1,000, payable quarterly. That if the rent was not punctually paid, or paid within twenty days after due, the failure should operate a forfeiture of the lease; and that the premises were not to be occupied as a drug store or a grocery, or underleased without the written consent of Bredell.

On the 12th July, 1841, with the consent of Bredell, Warne underleased to Russell Prentiss, for the term of two years and three months, the same premises, and upon the terms and restrictions contained in the contract between Bredell and Warne. Prentiss took possession and occupied for three months--that is from the 12th July, 1841, to 12th October, 1841--and paid the rent to Bredell as the agent for Warne.

On the 12th October, 1841, Prentiss leased the premises, by verbal agreement, to John G. Holm, who went into possession and who paid the accruing rent, up to the 12th April, 1842, to Bredell, as the agent of Warne. That about the 1st October, 1842, Holm had a conversation with Bredell concerning the occupancy of the house, when Bredell proposed to lease him the house at $800 per annum, provided Holm would take a lease from him at that rent, for a year or more, but he declined giving that sum, and offered $600, which Bredell refused to take, and requested Holm to quit the possession, and directed him where to leave the key of the house, which he did. After the conversation between Bredell and Holm, the former leased the premises to Guild & Dorwart, who, previous to the 12th October, 1842,...

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11 cases
  • Rauth v. Dennison
    • United States
    • Missouri Court of Appeals
    • May 8, 1962
    ...Missouri cases have said that neither the delivery of the keys to the landlord [Livermore & Cooley v. Eddy's Adm'r., 33 Mo. 547; Prentiss v. Warne, 10 Mo. 601; Buck v. Lewis, 46 Mo.App. 227], nor his efforts to rerent the abandoned premises (Fischman v. Kiphart, Mo.App., 297 S.W.2d 784, 786......
  • Gerhart Realty Company v. Brecht
    • United States
    • Missouri Court of Appeals
    • December 13, 1904
    ... ... did not release defendant from defendant's obligation to ... pay damages resulting from breach of the lease. Prentice ... v. Warne, 10 Mo. 601; Goodfellow v. Noble, 25 ... Mo. 60; Livermore v. Eddy's Admr., 33 Mo. 546; ... Huling v. Roll, 43 Mo.App. 234 ...           ... ...
  • Grimes v. Cole
    • United States
    • Kansas Court of Appeals
    • November 16, 1908
    ... ... Quinette v. Carpenter, 35 Mo. 502; Livermore v ... Eddy, 33 Mo. 547; Kerr v. Clark, 19 Mo. 132; ... Distrehan v. Scudder, 11 Mo. 481; Prentiss v ... Warne, 10 Mo. 601; Whetstone v. McCartney, 32 ... Mo.App. 430; Buck v. Lewis, 46 Mo.App. 227; Heine v ... Morrison, 13 Mo.App. 577 ... ...
  • Hotz v. Federal Reserve Bank of Kansas City, Mo.
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • December 13, 1939
    ...to a surrender of the term. Where a tenancy is thus determined before the term is ended, the tenant is liable for the rent". Prentiss v. Warne, 10 Mo. 601. A very good definition of surrender is given in Buck v. Lewis, 46 Mo.App. 227: "A surrender is the yielding up the estate to the landlo......
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