Boutross v. Miller

• Decision Date: 16 July 1920
• Docket Number: No. 21193.,21193.
• Parties: BOUTROSS et al. v. MILLER.
• Court: Missouri Supreme Court

223 S.W. 889

BOUTROSS et al. v. MILLER.

No. 21193.

Supreme Court of Missouri, Division No. 2.

July 16, 1920.

Appeal from Circuit Court, Jackson County; Thomas B. Buckner, Judge.

Action by John A. Boutross and others against Edward C. Miller. From a judgment for plaintiffs, defendant appealed to the Court of Appeals, which certified the case to the Supreme Court. Reversed and remanded.

Roy B. Thomson and Warner, Dean, McLeod & Langworthy, all of Kansas City, for appellant.

Ed. E. Aleshire, of Kansas City, and John G. Paxton, of Independence, amici curiæ.

WALKER, J.

This case has been certified here by the Kansas City Court of Appeals under section 6 of the amendment of 1884 to the state Constitution. The action is based on a written lease, wherein the plaintiffs demised to defendant certain premises on West Missouri avenue, Kansas City, Mo. We are satisfied with the reasoning and conclusion reached by the Court of Appeals on the merits, and in the main adopt its statement and opinion, which are as follows:

"The lease was dated September 18, 1915, and was to expire on the 1st day of October, 1917. It provided for the payment as rent the sum of $480 in monthly installments of $20 each, beginning with the 1st day of October, 1915, and on the 1st day of each succeeding month thereafter. The case arose in a justice's court, and was appealed to the circuit court. It was there tried on plaintiffs' statement, there being no other pleadings. At the close of the evidence the circuit court directed a verdict in the sum of $42.40, being two months' rent and the interest thereon, and defendant appealed.

"Defendant admits the execution of the lease and the possession of the property thereunder. He offered no testimony to defend the action, and the court properly instructed for the plaintiffs. The only evidence offered tending to show any defense was that on or about the 27th day of January, 1917, some months after the accruing of the rent sued for, there was a fire in the premises. Defendant testified that he told the landlords, about the 1st day of February, 1917, that he would no longer remain in the premises, and that he took the keys to one of the plaintiffs, and gave them to him, and they were accepted. There was no testimony that the landlord said anything, except that he asked defendant if the latter could take charge of some closet fixtures, and keep them until he (the landlord) could come and get them, and defendant told him that he would. This did not show a surrender and release of the premises on the part of the tenant, and an acceptance of a surrender or termination of the tenancy on the part of the landlord, to say nothing of showing payment, discharge of the rent due, or an accord and satisfaction of the rent and lease.

"While plaintiff was introducing this testimony, the court said that, by reason of the fact that plaintiffs had introduced a final judgment of a justice's court, wherein plaintiffs recovered judgment against the defendant for a month's rent of the premises under the same lease, that had accrued between the time of the filing of this suit and the fire mentioned (the judgment being dated before the fire), and as said judgment was res adjudicate, the defendant was estopped to put in any defense which he might or could have raised in that action, and `it makes no difference what the evidence might be, the court at the end of the proceeding would be constrained to give the jury a peremptory instruction under the lease for the sum of $40.' Thereupon defendant's counsel stated: `In view of the court's ruling, the defendant thinks it unnecessary to offer further testimony.' He then excepted to the ruling of the court, and no further testimony was offered.

"Defendant insists that the former judgment before the justice of the peace was not res adjudicata of the matter that he desired to introduce in evidence in defense of the suit, and that it was not res adjudicata of any matter, as it was not shown that the justice who rendered the judgment had any jurisdiction of the defendant. However, it is immaterial whether the former judgment was res adjudicata on any point, as defendant neither proved nor offered to prove (nor so far as the record shows was he in the act of proving) any defense to the cause of action. In view of this state of the evidence it was not error for the court to give a properly framed peremptory instruction in favor of the plaintiff. When the court made the ruling complained of, the defendant was not offering any defense to the action, and no offer was made to prove facts constituting a defense...