Jackson v. Eddy

Citation12 Mo. 209
PartiesJACKSON v. EDDY AND OTHERS.
Decision Date31 October 1848
CourtUnited States State Supreme Court of Missouri

APPEAL FROM ST. LOUIS COURT OF COMMON PLEAS.

EAGER & HILL, for Appellant. The judgment ought to be reversed for the following reasons: 1st. Because the condition in which the premises were, when leased to the defendant, was not afterwards changed, and the defendants before they entered, knew the situation of the premises, the dampness in the rear of the store, and agreed to repair, by reason of which they had no right to abandon for any cause existing at the time of their entrance into possession. Westlake v. DeGraw, 25 Wendell, 669. 2nd. There was evidence showing the occupancy of defendants during the third quarter, their control of the premises, that they offered them for rent, and the court erred in refusing to leave the questions to the jury arising upon this evidence as asked by plaintiff in the 1st and 3rd instructions. 3rd. The court erred in instructing the jury, that the circumstance of leaving the keys with the boy (not plaintiff's agent) which were the same day returned, was sufficient to operate as a surrender of the premises and exonerate the defendants from the rent by reason of the dripping of the salt and tar, because the defendants after that paid rent of second quarter, and occupied and exercised control over the premises and offered them for rent. 4th. There was no evidence to support the last clause of the 1st instruction given by the court, “and offered to surrender the possession to the plaintiff.” The keys were given to a boy not the plaintiff's clerk or agent. 5th. The court erred in refusing to give the instructions asked by the plaintiff, which put the questions in the case as to occupancy and eviction and surrender of possession fairly and legally to the jury. The authorities cited by plaintiff, are Taylor's Landlord and Tenant, 174, 183 and 297; Surplice v. Farnsworth, 49 Eng. Com. L. R. 576; Sutton v. Temple, 12 Meeson & Welsley (Ex.) 52, and Hart v. Windsor, 12 Meeson & Welsley, 68.

TODD, for Appellees.

1st. That they were evicted by the wrongful act of the appellant and thereby released from all liability for rent upon the lease or otherwise. 8 Cowen, 727; 3 Campbell, 513; 25 Wend. 445. 4 Phillips' Ev. 58. 2nd. The appellant ought not to recover anything upon the count for use and occupation. 1st. Because no recovery can be had upon this count except where the relation of landlord and tenant exists, either by an express or implied contract. 3 Mo. R. 286; 14 Mass. R. 93; 6 Johns. 46; 13 Johns. 240. In this case this relation is proved by an express contract which excludes an implied one. But it has been shown that there can be no recovery upon the express contract. 2nd. Indebitatus assumpsit for use and occupation is a purely equitable action and a recovery therein must be ex equo et bono 13 Wend. 488. In this case the appellees by the wrongful act of the appellant were deprived of, and lost all beneficial use of the premises for the quarter sued for. To recover in such a case would be contra bonas mores. 8 Cowen, 731, 737; 1 Denio, 37, 41. 3rd. As further evidence that the appellant cannot have the benefit of any implied contract with the appellees the appellant by his note to the appellees accompanying his return of the key to them, declared he would abide by the lease. 4th. From the nature of the case the eviction was necessarily a total one and therefore as there could not be any apportionment of the rent, so as the appellees never re-occupied, nor were unwilling that the appellant should occupy nor were in his way, therefore there can be no recovery upon a quantum meruit. 3rd. As there was a total eviction by the appellant and therefore from the nature of the case, no occasion for a surrender and as the appellees never re-occupied nor did or said anything in opposition to or inconsistent with the appellant's occupying, but were always willing that he should; the instructions of the court were substantially correct and covered the law and the merits of the case and the court therefore did not err in giving them, nor in refusing those of the appellant. 4th. The verdict and judgment were for the right party and therefore the court did not err in refusing the motion for a new trial.

MCBRIDE, J.

This was an action of assumpsit brought by Jackson against Eddy in the St. Louis Court of Common Pleas. The declaration contained three counts: the first two were upon a letting in writing, not under seal, from the appellant to the appellee of a certain cellar and room next above, of a store in St. Louis from 1st February, 1846, until 1st November following, being nine months, for $487 50, payable quarterly, the sum of $162 50. The third count was indebitatus assumpsit for $375 owing said appellant by said appellee for...

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  • Wood v. Gabler
    • United States
    • Court of Appeal of Missouri (US)
    • April 3, 1934
    ...eviction pleaded in defendant's amended answer. Phoenix Land & Improvement Co. v. Seidel, 135 Mo. App. 185, 115 S.W. 1070; Jackson v. Eddy, 12 Mo. 209; Vromania Apartments Company v. Goodman, 145 Mo. App. 653, 123 S.W. 543; Dolph v. Barry, 165 Mo. App. 659; Delmar Investment Company v. Blum......
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    • April 3, 1934
    ...... defendant's amended answer. Phoenix Land & Improvement Co. v. Seidel, 135 Mo.App. 185, 115 S.W. 1070; Jackson v. Eddy, 12 Mo. 209; Vromania. Apartments Company v. Goodman, 145 Mo.App. 653, 123 S.W. 543; Dolph v. Barry, 165 Mo.App. 659; Delmar. Investment ......
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