Burt v. Warne

• Decision Date: 31 October 1860
• Citation: 31 Mo. 296
• Parties: BURT, Respondent, v. WARNE, Appellant.
• Court: Missouri Supreme Court

31 Mo. 296

BURT, Respondent,

v.WARNE, Appellant.

Supreme Court of Missouri.

October Term, 1860.

1. In an action of trespass for damages, a statement which described the premises as “building and premises in block No. 84, of the city of St. Louis,” is sufficient, and an amendment adding the words “South Fourth street,” is immaterial.

2. A. rented the premises in question from the owners, and sold his interest in them to plaintiff, the agent of owners recognizing plaintiff as their tenant previous to the time defendant entered upon the premises. Held, that plaintiff was entitled to possession at the time defendant entered, and if defendant, during the time he was in possession, injured said premises so as to render them untenantable, then plaintiff is entitled to recover in action of trespass what it would cost to repair said injuries.

3. In an action of trespass for damages before a justice, a statement in these words: “E. W. Warne in acc't Calvin C. Burt, Dr. To damage done to building and premises in block 84 of the city of St. Louis, $50,” is sufficient under the statute. (R. C. 1855, p. 931, § 13.)

Appeal from St. Louis Law Commissioner's Court.

This was an action brought before a justice to recover damages alleged to have been done to a building, described as situated in “block No. 84, of the city of St. Louis;” the justice rendered judgment for plaintiff, and defendant appealed to the law commissioner's court. Plaintiff was allowed to amend his statement and insert the words “South Fourth street.” Plaintiff introduced witness Jones, who testified that he rented the premises in question of James McCausland, agent for John and Robert McCausland, between February 12th and 18th, 1858, and sub-let to plaintiff at an advance. Same day of, and after the sub-letting, witness found defendant in possession of the premises, using the house as a marble shop, very much to their injury and damage; plaintiff went to the expense of repairing the house after he got possession of it; that a former tenant of these premises wanted to sell a kitchen to witness, and that both James McCausland and witness told tenant, after contract of lease to witness, that he could rent the house to any one who would buy the kitchen. The transcript of a cause, brought before a justice to get possession of these same premises, in the name of John and Robert McCausland, for unlawful detainer, against this defendant Warne, was offered in evidence; also, a notice, signed by this plaintiff, Burt, as attorney, requesting and demanding of Warne possession of the premises. Witness Jones testified that he swore to the complaint in the case of the McCauslands v. Warne, at the request and by advice of Burt, who acted as attorney for the McCauslands, against Warne. Unlawful detainer was decided in favor of Warne, and appealed to land court. Affidavit of Robert and John McCausland, that they had not authorized Burt to bring unlawful detainer suit against Warne was offered in evidence, also their power of attorney to Irwin Z. Smith to dismiss suit in land court. Plaintiff offered in evidence a lease to Burt, of these premises, from James McCausland, signing as the “agent of R. and J. McCausland.” Witness Jones proved James McCausland's signature.

The court, on motion of plaintiff, gave this instruction: “If the jury find from the evidence that the witness Jones rented, from the owners thereof, the premises in question, and sold his interest in them to plaintiff, that the owners, by their agent, recognized said plaintiff as their tenant previous to the time defendant entered upon the premises, then plaintiff was entitled to the possession of the premises at the time defendant entered; and if defendant, during the time he was in possession, injured said premises so as to render them untenantable, then plaintiff is entitled to recover in this action what it would cost to repair said injuries, not to exceed fifty dollars.”

This instruction was given on defendant's motion: “Plaintiff can not recover in this action unless the jury believe from the evidence, not only that the premises in question were leased to him, but that he had accepted the lease previous to the time when Warne entered into and held the premises.”

Defendant asked the following instruction, which was refused: “1. If the jury believe from the evidence that the house for which plaintiff claims damages was not his property, but the property of Robert and John...