Bless v. Jenkins
| Decision Date | 02 July 1895 |
| Parties | Bless et al. v. Jenkins et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. James Gibson, Judge.
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 Missouri, to a firm known as J. W. Jenkins & Son, composed of J. W. Jenkins, Senior, the father of these defendants, and John W. Jenkins, Junior, 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, Senior, died in 1890. The rent of $ 400 per month was still paid regularly after the death of J. W. Jenkins Senior, 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 Junior, 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 defendant 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, Missouri, for a term of fifteen months from April 1, 1893, 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 fifteen 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 fifteen months, beginning April 1, 1891, at a rental of $ 300 per month, defendants rented to Margaret W. Carpenter the third and fourth story of the building for a photograph gallery, for a term of fifteen 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 story of this building, and entered upon her tenancy of fifteen 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 fifteen 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 thirtieth 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 story, 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 fifteen months from April 1, 1891. Defendants did not give the Carpenters thirty 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 defendant's 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 plaintiff 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.
Affirmed.
M Campbell for appellants.
(1) The court erred in admitting in evidence the sealed writing purporting to be a lease for three years from Bless & Peltzer to J. W. Jenkins & Son, dated February 13, 1888, for the premises in suit. (2) The court erred in admitting in evidence the sealed writing purporting to be a lease for fifteen months from April 1, 1891, from plaintiffs to defendants, dated February 9, 1891, for the premises in suit. Both of said papers were subscribed by the agents Muehlchester & Jaiser, who wrote plaintiffs' names to the papers without any authority in writing to do so. Secs. 5182 and 6371, R. S.; Taylor's Landlord and Tenant, 107; Jennings v. McComb, 112 Pa. St. 518; Bacon v. Parker, 137 Mass. 309; Howard v. Easton, 7 Johns. 205; Biedler v. Fish, 14 Ill.App. 29; Blood v. Goodrich, 9 Wend. 68. The papers are sealed instruments, and bar a recovery in this suit if held to be valid. Sec. 6375, R. S.; Kiersted v. Railroad, 69 N.Y. 343; Codman v. Jenkins, 14 Mass. 93. (3) The court erred in peremptorily instructing the jury to find all the issues for plaintiffs. This is presumptively erroneous when the pleadings present issues of fact, with the burden of proof on plaintiffs. Barry v. Otto, 56 Mo. 177; Ligget v. Morgan, 98 Mo. 39; Warner v. Hale, 65 Ill. 395; Walker v. Kansas City, 99 Mo. 647; Schroeder v. Railroad, 108 Mo. 322; Robertson v. Drane, 100 Mo. 273; Wolf v. Campbell, 110 Mo. 114. That no such conclusion follows from the writings erroneously in evidence is implied by the form of the petition (sec. 6374, R. S.), by the statute of frauds (sec. 5182, R.S.), and was conceded at the trial. Authorities first and second assignment. And those writings were not validated, even if acted on. Withnell v. Petzold, 104 Mo. 409; Nally v. Reading, 107 Mo. 350; Brightman v. Hicks, 108 Mass. 246; Warner v. Hale, 65 Ill. 395. Nor does such conclusion follow from occupancy by defendants. Personally or by agents they did not occupy or use the building after September 30, 1891. Bates v. Phinney, 45 Mich. 388. Nor does it follow from the occupancy of Carpenter. It is a question of fact whether Mrs. Carpenter did not agree that her subtenancy under defendants terminated September 30, 1891. Sec. 6372, R. S.; Forbes v. Smiley, 56 Me. 174; Engels v. Mitchell, 30 Minn. 122. It is the affirmance of the law that when the tenancy of defendants ended, Mrs. Carpenter, their subtenant, became instantly the tenant of plaintiffs at sufferance. 1 Washb. on R. P. 393, chap. 12; 2 Blackst. Com. 150; Meier v. Thieman, 15 Mo.App. 307; Rising v. Stannard, 17 Mass. 282; Hooten v. Holt, 139 Mass. 54; Reed v. Reed, 48 Me. 388; Abeel v. Hubbell, 52 Mich. 37; Mendell v. Hall, 13 Bush. 232; Recklow v. Shank, 43 N.Y. 448. Subject to be dispossessed by plaintiffs at any time. Emmons v. Scudder, 115 Mass. 367; Dixon v. Haley, 16 Ill. 145; Joy v. McKay, 70 Cal. 445; Smith v. Littlefield, 51 N.Y. 539. And that the tenancy of the defendants was a tenancy from month to month results from the fact that Muehlchester & Jaiser had no authority in writing to sign plaintiff's name to the alleged lease for fifteen months. Secs. 5182 and 6371, R. S. And the written notice served on defendants on August 5, 1891, ended that monthly tenancy on September 30, 1891, and disrupted the relation of landlords and tenants between those parties. Secs. 6371 and 6365, R. S.; Tiedeman on Real Property, sec. 219; Boone on Real Property, sec. 124; 1 Washburn on Real Property, subd. 13, sec. 2, chap. 11; 12 Am. and Eng. Encyclopedia of Law, 679. Nor is there the slightest evidence of any intention on their part to waive that effect. 1 Washb. on R. P. 385; Tiedeman on R. P., sec. 219; Boone on R. P., sec. 124; Doe v. Palmer, 16 East. 53; Kimball v. Rowland, 6 Gray, 224. And there is no liability for rent after defendants thus ceased to be...
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