Macfarland v. Heim

• Decision Date: 05 March 1895
• Citation: 29 S.W. 1030,127 Mo. 327
• Parties: Macfarland et al., Appellants, v. Heim
• Court: Missouri Supreme Court

29 S.W. 1030

127 Mo. 327

Macfarland et al., Appellants, v. Heim

Supreme Court of Missouri, Second Division

March 5, 1895

Appeal from Jackson Circuit Court.

Affirmed.

R. O Boggess for appellant.

(1) Before the making of the lease in suit, defendant was bound to plaintiff with a different tenant by a precisely similar lease for the payment of the rent of the same premises for the same time covered by the lease in suit. The lease in suit was assigned to defendant and he bound himself in writing to pay the rent. Defendant thus became bound by express contract and by operation of law. The consideration thus disclosed was valuable, and hence sufficient. R. S. 1875, sec. 3095. Smith v. Brinker, 17 Mo. 148 and authorities under point 5, infra. (2) The answer and defendant's evidence are inconsistent with each other and each is inconsistent with itself. (3) There was no surrender by deed or note in writing as required by statute. R. S. 1879, sec. 2510. There was no intention on the part of plaintiff or her husband to accept a surrender or cancellation of the lease. Neither the husband nor janitor had power to accept such surrender. Authorities infra, point --. (4) Conceding all the evidence offered by defendant, or relied upon by him, to be true, and still there was no surrender by operation of law. Huling v. Roll, 43 Mo.App. 234, and citations; Bucks v Lewis, 46 Mo.App. 227; Jones v. Barnes, 45 Mo.App. 590; Whetstone v. McCartney, 32 Mo.App. 430. (5) It is provided (R. S. 1879, sec. 3095), that rents may be recovered from the lessees, or person owing it, or his assignee or under-tenant, etc. While this is positive statutory law, and defines the rights, duties and obligations of tenants, their assignees, etc., yet it is simply declaratory of the previously and still existing common law of this state. Smith v. Brinker, 17 Mo. 148; Willi v. Dryden, 52 Mo. 319; Board, etc., v Ins. Co., 5 Mo.App. 91; Hicks v. Martin, 25 Mo.App. 430; Taylor's Landlord and Tenant, sec. 438; Ward v. Krull, 49 Mo.App. 447. The knowledge by the lessor that lessee has assigned the lease, and receipt of rent from such assignee or other person occupying, will not operate a surrender, or release either the lessee or his assignee from liability to pay rent. Ward v. Krull, supra. (6) The husband was not the wife's agent and had not the power or right or authority jure mariti to cancel the lease or accept a surrender of the term. Harding was not plaintiff's agent for any purpose, except as specially directed. No one attempted on behalf of plaintiff, to cancel said lease or accept a surrender of the term, and there is no evidence tending to prove the fact. Brown v. Miller, 46 Mo.App. 1; Mueller v. Kaessman, 84 Mo. 318; White v. Ingram, 110 Mo. 475; Estra v. Capell, 61 Mo. 578; Flesh v. Lindsay, 115 Mo. 1, 18, and citations; Scully v. Dodge, 40 Kan. 395; Henry v. Sneed, 99 Mo. 407; Wilcox v. Todd, 64 Mo. 388.

Ben T. Hardin for respondent.

(1) The evidence shows that the plaintiffs, through their agent, leased the premises to Lau, and afterward agreed that Lau might quit the possession, and they would take Miller as their tenant instead of Lau. This amounted to a complete surrender of the original term. This proposition is backed by all the authorities, including those cited by appellants. Prior v. Kiso, 81 Mo. 241; Hutcheson v. Jones, 79 Mo. 496; Matthews v. Tobener, 39 Mo. 115; Clemens v. Broomfield, 19 Mo. 118; Kerr v. Clark, 19 Mo. 132; Huling v. Roll, 43 Mo.App. 234; Koenig v. Miller Bros., 38 Mo.App. 182; 4 Wait's Actions and Defenses, pp. 212,213. To the same effect are the cases cited by appellants. Ward v. Krull, 49 Mo.App. 447; Charless v. Froebel, 47 Mo.App. 45; Buck v. Lewis, 46 Mo.App. 227; Jones v. Barnes, 45 Mo.App. 590; Whetstone v. McCartney, 32 Mo.App. 430. (2) The authorities above show that Lau, the original lessee, was released from further liability under the lease. If Lau was released, then the defendant, Heim, was certainly released, he being merely a guarantor for Lau. Prior v. Kiso, 81 Mo. 248; Eggemann v. Henschen, 56 Mo. 123; Bank v. Schmucker, 7 Mo.App. 171; Bank v. Gerke, 68 Md. 449; s. c., 6 Am. St. Rep. 453, with extended note; Farrar v. Kramer, 5 Mo.App. 167. The liability of Heim, if any, was upon his guaranty, supposing it was for a valid consideration, which we by no means concede. The liability of a guarantor can not be extended beyond the very terms of his guaranty. Harrisonville v. Porter, 76 Mo. 358; Nofsinger v. Hartnett, 84 Mo. 549; State ex rel. v. Davis, 88 Mo. 585; Leavel v. Porter, 52 Mo.App. 632; Bank v. Gerke, 6 Am. St. Rep. 453 and note. (3) All the evidence goes to show that Heim signed the guaranty on the back of the lease some ten or twelve days after the lease had been signed by the parties thereto, and the consideration therein had passed, and the lessor and lessee each had a copy. There was no consideration for Heim signing the obligation to pay rent, and he is not bound thereby. He received no benefit whatever for signing it. A surety who signs a paper after it has been delivered, incurs no liability. Montgomery Co. v. Auchley, 92 Mo. 126; McMahan v. Geiger, 73 Mo. 145; Williams v. Williams, 67 Mo. 662. And although the guaranty was in writing, it must have a new consideration to be binding. Glenn v. Lehnen, 54 Mo. 45; Pfeiffer v. Kingsland, 25 Mo. 66; Cook v. Elliott, 34 Mo. 586; Hartman v. Redman, 21 Mo.App. 126; Tiedeman Com. Paper, sec. 417. (4) The point made by appellants that section 2510, Revised Statutes, 1879, prohibits a surrender of a lease except by writing, can not be sustained, under the ruling of this court in Prior v. Kiso, 81 Mo. 248, and cases there cited. (5) The written assignment by Lau, without Heim's consent, or acceptance of the assignment, did not make him an assignee, and he is in nowise bound by any acts of Lau, to which he did not agree nor consent. The evidence of both Lau and Heim shows that Heim knew nothing about the assignment. (6) There can be no doubt but the husband can be the agent of the wife, though the agency must be clearly established. Mead v. Spalding, 94 Mo. 43. The wife may hold possession, even of lands, with her husband's consent, by herself or agent. Dyer v. Wittler, 89 Mo. 81; Bobb v. Taylor, 25 Mo.App. 583; Flesh v. Lindsay, 115 Mo. 18. The right of the husband to the possession of his wife's real property as it existed at common law, has not been taken away by statute. Flesh v. Lindsay, 115 Mo. 1; Brownlee v. Fenwick, 103 Mo. 420; Peck v. Lockridge, 97 Mo. 549; Dyer v. Wittler, 89 Mo. 81; Kanaga v. Railroad, 76 Mo. 207. "The husband, during the marriage, has the exclusive right to the possession of her real estate not held to her sole and separate use, and is the only proper party plaintiff in a suit to recover possession thereof." Dyer v. Wittler, 89 Mo. 92; Kanaga v. Railroad, 76 Mo. 214. "Whoever is entitled, under the law, to the possession, ex necessitate, is entitled to the right of action." Dyer v. Wittler, 89 Mo. 89.

OPINION

Sherwood, J.

Action on a written lease bearing date August 1, 1888, to recover rent from April, 1889, to December of that year, both months inclusive. Lau was the lessee, Heim the guarantor, and Ellen J. Macfarland and husband the lessors -- the land belonging to Mrs. Macfarland, who held it, so it is stated, "as her general estate."

Among the defenses set up by defendant in his answer, was a plea of failure of consideration, arising out of the fact that the alleged guaranty was signed by defendant long after the execution and delivery of the lease. The answer also denies an allegation of the petition that the lease had been assigned to him by Lau.

The evidence very clearly establishes that after the execution and delivery of the lease, Harding, the janitor of the building, was sent out by the husband in order to have Lau give security in the form of a guaranty from Heim. After some ten or twelve days from the time of the execution and delivery of the lease, Heim was found, and gave the guaranty indorsed on the lease. There was no original understanding between Lau and Heim and the Macfarlands, at or before the execution of the lease, that Heim was to indorse the lease. Nor was the assignment indorsed on the lease by Lau, which purported to transfer the lease to Heim, on the lease, at the time the latter indorsed the lease as guarantor. Nor was that indorsement under seal. This is Heim's testimony, and there is no contradiction of it, nor does the evidence show that Heim accepted the assignment or even saw it after it was made. It was made without his knowledge or acceptance, so he states, and of this, also, there is no contradiction.

In these circumstances, the trial court very properly gave the following instructions:

"If the jury find that the assignment of the lease by Lau to Heim was voluntary on the part of Lau, or made under an arrangement between plaintiffs and Lau, and that Heim had no knowledge of said assignment and never accepted it, then it imposes no obligation or duty upon Heim, and he is not bound by it.

"The court instructs the jury that, if they find from the evidence, that plaintiffs, on the first day of August, 1888, executed and delivered to Jacob Lau a written lease of the property in question, and that, afterward, without any new consideration passing from the plaintiffs to Lau, or to defendant, or from Lau to defendant, Heim executed a writing binding himself for the rent, such agreement was without consideration and defendant is not bound by it."

Nothing is better settled in this state than that a subsequent agreement which does not form any part of an original contract, nor is supported by the original consideration thereof, nor by any new consideration, is a mere nude pact, of no force...