Bless v. Jenkins

• Citation: 129 Mo. 647,31 S.W. 938
• Parties: BLESS et al. v. JENKINS et al.
• Decision Date: 02 July 1895
• Court: United States State Supreme Court of Missouri

31 S.W. 938

129 Mo. 647

BLESS et al. v. JENKINS et al.

Supreme Court of Missouri, Division No. 2.

July 2, 1895.

ACTION FOR RENT — DEFENSES — STATUTE OF FRAUDS — PART PERFORMANCE — SUBTENANCY.

1. Where, in an action for rent due on a contract of renting, defendant neither denies the

contract nor pleads the statute of frauds, the statute is unavailing as a defense.

2. Where a lessee enters into possession of the premises under an oral lease, he cannot surrender the premises and defeat an action for rent subsequently accruing by reliance on the statute of frauds.

3. The execution of a lease under seal by one purporting to be the owner's agent may be ratified by the owner so as to take it out of the statute of frauds.

4. A lessee of land from tenants in common must serve notice of his intention to quit on all the lessors.

5. A lessee who sublets a portion of the premises cannot, by surrender of a portion of the premises retained, escape payment of rent.

6. The fact that the subtenant "agrees" to pay rent to the lessor does not relieve the lessee from liability for future rent, unless the lessor accepts the subtenant as his tenant.

7. Evidence that a notice by a lessee of his intention to surrender the premises was mailed, is not prima facie proof of service of the notice, in the absence of evidence that the letter was stamped.

Appeal from circuit court, Jackson county; James Gibson, Judge.

Action by Peter Bless and another against John W. Jenkins and another. There was a judgment for plaintiffs, and defendants appeal. Affirmed.

Action for the sum of $2,700 and interest, for rent due plaintiffs for certain premises rented to defendants. On February 13, 1888, plaintiffs made a lease of their entire three and four story building, 615 Main street, Kansas City, Mo., to a firm known as "J. W. Jenkins & Son," composed of J. W. Jenkins, Sr., the father of these defendants, and John W. Jenkins, Jr., one of these defendants, for a term of three years, from April 1, 1888, ending April 1, 1891, for a rental of $400 per month, payable monthly in advance. The said firm of J. W. Jenkins & Son then sublet and leased a part of the second floor and all of the third and fourth floors to Margaret W. Carpenter for a photograph gallery, for the same period of time, to wit, from April 1, 1888, to April 1, 1891. J. W. Jenkins, Sr., died in 1890. The rent of $400 per month was still paid regularly after the death of J. W. Jenkins, Sr., and plaintiffs made no change in their lease or rental to the firm of J. W. Jenkins & Son until about February 1, 1891, at which time defendant John W. Jenkins, Jr., a member of the old firm of J. W. Jenkins & Son, requested a reduction in rent for the month of January, which he had not yet paid, and February and March, 1891, and plaintiffs threw off $100 per month for these three months. On February 9, 1891, plaintiffs Peter Bless and Theodore Peltzer entered into an agreement with defendants John W. Jenkins and C. W. Jenkins, whereby plaintiffs rented to defendants the brick store building three and four stories high, situated at 615 Main street, Kansas City, Mo., for a term of 15 months from April 1, 1891, and defendants agreed to pay them, for the use and rent therefor, the sum of $300 per month, payable monthly in advance. This agreement was put in writing, and signed by defendants in person, but plaintiffs' names were signed to this lease by Muehlchester & Jaiser, as their agents. These defendants, on April 1, 1891, under this agreement, entered upon their tenancy, and occupied the first and second floors as dealers in pianos, musical instruments, etc., and began paying rent to plaintiffs under such rental agreement in writing made February 9, 1891, for said term of 15 months from April 1, 1891. Defendants paid their rent of $300 per month regularly under such rental, from April 1, 1891, to October 1, 1891. A few weeks after the agreement of February 9, 1891, whereby plaintiffs rented the entire three and four story building of 615 Main street to defendants for a term of 15 months, beginning April 1, 1891, at a rental of $300 per month, defendants rented to Margaret W. Carpenter the third and fourth stories of the building for a photograph gallery, for a term of 15 months, at an agreed rental of $35 per month from April 1, 1891, and on March 10, 1891, C. W. Jenkins, one of the defendants, gave Carpenter a statement in writing as follows, to wit: "We agree to accept $35 a month for fifteen months from April 1, 1891, for third floor, 615 Main street." In pursuance thereof, on April 1, 1891, Mrs. Carpenter made a change, and moved her entire gallery up from the second floor into the third and fourth stories of this building, and entered upon her tenancy of 15 months from April 1, 1891, and paid her rent to defendants of $35 per month accordingly, from April 1, 1891, to October 1, 1891, and occupied said third and fourth floors until July 1, 1892, and tendered the rent regularly each month to defendants from October 1, 1891, to July 1, 1892. On August 5, 1891, defendants, claiming that this lease made to defendants by plaintiffs for the term of 15 months from April 1, 1891, was not signed by plaintiffs, nor by agents duly authorized in writing, gave a written notice to Theodore Peltzer stating that: "We propose to end our tenancy of your building, No. 615 Main street, Kansas City, Mo., now occupied by us for the sale of pianos, musical instruments, etc., on the 30th day of September, 1891, when we will deliver possession thereof to you." On September 30, 1891, defendants moved their stock of goods out of the first and second stories of the building, and M. Campbell, their attorney, sent the keys to the first and second stories, by letter, to the office of Muehlchester & Jaiser, who found them in their office on the morning of October 1, 1891. Muehlchester & Jaiser, on the same morning, returned the keys to the sender, M. Campbell, defendants' attorney. The defendants left the third and fourth stories still occupied by Mrs. Carpenter, with her photograph gallery, who continued to occupy such part of the building until July 1, 1892, under her rental agreement with defendants for a term of 15 months from April 1, 1891. Defendants did not give the Carpenters 30 days' notice to vacate the premises, and took no steps whatever to vacate this building, or to terminate the tenancy of Mrs. Carpenter, or to put her out of the building, and did not offer or attempt to turn any part over to plaintiffs on September 30, 1891, except the first and second stories, which plaintiffs refused to accept. Plaintiffs demanded the rent of defendants, viz. $300 every month for nine months from October 1, 1891, to July 1, 1892, amounting to $2,700; and, on defendants' refusal to pay instituted this action for the recovery thereof with interest. At the close of the evidence, the court, of its own motion, gave the jury a peremptory instruction to find for plaintiffs for $300 per month for each of the months sued for, with lawful interest from the time of each monthly demand. The jury obeyed this instruction, and on the verdict judgment went, from which defendants have appealed. Other facts, as necessary, will hereafter appear.

M. Campbell, for appellants. C. O. Tichenor and Walter A. Powell, for respondents.

SHERWOOD, J.

Various questions of interest arise on this record, and will now be considered. These questions relate to the statute of frauds, ratification, estoppel, tenancy, and surrender. Of these, in their order.

1. (a) Relative to the statute of frauds, it may be said that the petition, in substance and effect, sets forth a contract of renting by plaintiffs to defendants of the premises for the term of 15 months, at a rental of $300 per month, payable monthly in advance, beginning April 1, 1891, and ending July 1, 1892, and the entry and occupation of the premises by defendants under that contract from the date first aforesaid until the date last aforesaid. The answer does not deny the contract of renting, nor does it admit it and plead the statute of frauds as a defense. Now, the rule is well settled in this state that where, in circumstances like the present, a party would take advantage of the statute of frauds, he must either deny the contract, or else admit it and plead the statute. Defendants were therefore in no position to successfully raise the invalidity of the contract by reason of its nonconformity with that statute. Wildbahn v. Robidoux, 11 Mo. 660; Hook v. Turner, 22 Mo. 333; Allen v. Richard, 83 Mo. 55.

(b) But if defendants, by the state of their pleading, were in a condition to use the statute as a shield, they would be precluded from so doing, because the evidence shows that the contract was completely performed on the part of plaintiffs, by defendants' being placed by the former in the possession of the premises and remaining there so long as they would. In such circumstances as these, though the contract be not in writing, the statute will be invoked in vain. The complete performance of the contract by one contracting party forecloses his adversary from interposing the statute of frauds as a defense. Blanton v. Knox, 3 Mo. 342; Pitcher v. Wilson, 5 Mo. 48; Suggett v. Cason, 26 Mo. 221; Self v. Cordell, 45 Mo. 345; McConnell v. Brayner, 63 Mo. 461.

(c) Nor will it do to urge that plaintiffs could have expelled defendants prior to the...