Aull Sav. Bank v. Aull's Adm'r

• Decision Date: 31 October 1883
• Parties: THE AULL SAVINGS BANK, Appellant, v. AULL'S ADMINISTRATOR.
• Court: Missouri Supreme Court

80 Mo. 199

THE AULL SAVINGS BANK, Appellant,

v.AULL'S ADMINISTRATOR.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Lafayette Circuit Court.--HON. WM. T. WOOD, Judge.

AFFIRMED.

At the trial of this case in the circuit court a witness for plaintiff was asked to state what George Wilson, then deceased, had testified to in the probate court, where the case originated; but the court refused to permit him to do so. Plaintiff assigned this for error. The testimony which it was thus proposed to have rehearsed to the jury was not embodied in this record.

The fourth instruction referred to in the opinion, was as follows:

Real estate and the fixtures and appurtenances thereto belonging can only be sold and conveyed by deed, and all reservations of any interest in such property by the grantor must be made by and in the deed, and cannot be shown by parol; and if the jury believe from the evidence that the deed of conveyance of said real estate, banking house and fixtures by said Robert Aull, purports to convey the whole of such property, then no reservation of the use of any part of such property for the use and benefit of said Robert Aull or his agent can be shown by parol.

Wallace & Chiles for appellant.

J. D. Shewalter for respondent

SHERWOOD, J.

The plaintiff presented in the probate court for allowance against the estate of Robert Aull, deceased, a demand of $1,639.04, for rent of office in the Aull Savings Bank building, and use of vault and safe from March 19th, 1874, to November 19th, 1878, at $25 per month, payable monthly. The amount of the demand consisted in part of interest charged on each month's rent as it was alleged to have fallen due. George Wilson, the agent of Robert Aull, deceased, had for years occupied a desk and a portion of the space in the room or rooms in the bank building, and after the transfer of that building by decedent to the plaintiff, Wilson continued to occupy this desk, etc., transacting some business for Aull, but being also president of the bank and entitled as such to deskroom in the building. The transfer to the plaintiff occurred in March, 1874. No rent was ever charged on the books of the bank for Wilson's occupying the desk, etc. Nor was any rent ever demanded during the lifetime of Aull.

I.

It is well settled law in this State that an action for use and occupation does not lie unless the relation of landlord and tenant, either express or implied, exists between the parties. Edmonson v. Kite, 43 Mo. 176, and cases cited. In the present instance it is clear there was no express agreement for the payment of rent, and the fact that no rent was ever charged against Aull on the books of the bank, none ever demanded of Wilson, the agent, from the time of the transfer down to the time of Aull's decease in 1878, is so inconsistent with the ordinary course of business, if rent payable monthly was really thought of or claimed by the bank to be due, that these circumstances alone were entitled to considerable weight in determining whether any compensation for the space occupied was ever contemplated by the parties. The silence and acquiescence of the bank, its failure to charge, demand or receive rent during the space of more than four years, is evidence in and of itself that none was to be charged or that the matter had been otherwise arranged. Baile v. Ins. Co., 73 Mo. 371; 1 Greenleaf Ev., § 197.

II.

Objection is taken here, as below, to the admissibility of testimony to the effect that it was part of the consideration of the transfer that Wilson, the agent, was to continue occupying the desk, etc., in the bank building in winding up the business of Aull. This evidence was admissible....