Clemens v. Broomfield

• Decision Date: 31 October 1853
• Citation: 19 Mo. 118
• Parties: CLEMENS, Respondent, v. BROOMFIELD, Appellant.
• Court: Missouri Supreme Court

19 Mo. 118

CLEMENS, Respondent,

v.BROOMFIELD, Appellant.

Supreme Court of Missouri.

October Term, 1853.

1. No instrument can be a lease which is not signed by the lessor.

2. In a tenancy from year to year, a surrender by operation of law takes place when, by the consent of both parties, another person becomes tenant of the premises, and the landlord collects rent from him.

3. Instructions are still proper on a trial without the jury, in cases appealed from justices of the peace.

Appeal from St. Louis Circuit Court.

This was an action begun before a justice of the peace by Clemens against Broomfield, to recover rent for one month and a half ending August 16, 1850. There being a judgment for the plaintiff before the justice, the defendant appealed to the Circuit Court. At the trial, the plaintiff read in evidence the following instrument of writing:

“I have leased from James Clemens, jr., for one year, with the privilege of five, to commence on the first day of April, in the year one thousand eight hundred and forty-eight, (1848,) that brick house and lot on Olive street, in block number thirty-one, (31,) in the city of St. Louis, bounded on the north by Olive street, on the east by lot belonging to Mrs. Octavia Delany, on the south by an alley, and on the west by a lot belonging to W. S. Harney, at six hundred and fifty dollars ($650) perannum, payable monthly, on the first day of each and every month; and it is expressly agreed and understood by and between the lessor and lessee, that if, at any time, said rent should be behind and in arrear, it shall and may be lawful for the lessor, or his successors, to enter into and upon the premises, and declare the lease forfeited and ended, and to take possession of the premises hereby leased, after having first given three days' notice in writing, which said notice may be served by posting a copy or duplicate of the same upon the premises, or by delivering a copy of such notice to said lessee or his legal representatives; and in case of the non-payment of rent, all the fixtures in the house, with the furniture in the same, and improvements, if any made by the lessee, are pledged and to be held bound for the payment of any rent due and unpaid, and are not to be moved until all sums due for rent or balances of rents, are paid. The said brick house and lot, at the expiration of this lease, to be surrendered to the lessor, his heirs, successors or assigns, in the condition received, excepting only its natural wear and decay. The lessee hereby engaging to pay double rent for every day that he or any one else in his name shall hold on after the expiration of this lease, or its forfeiture, in consequence of the non-payment of rent, as herein stipulated. This brick house and lot is to be kept free from nuisances at the expense of the lessee.

W. W. BROOMFIELD.”

There was evidence that, after the defendant had entered upon the second year, and between the 1st of April and the early part of May, 1849, he put Coulter & Colman in possession of the premises. Colman applied to the plaintiff for his consent to the transfer. Plaintiff replied that the lease gave him no right to prohibit the transfer, and he did not care who was in the house, so long as he received his rents. Two or three transfers of the premises were made after this, with the consent of the plaintiff expressed in similar terms. After the first transfer by the defendant, plaintiff always received the rents from the parties in possession, but gave receipts in the following form: “Received of W. W. Broomfield, per ______, &c. and, as his clerk testified, always refused to release the defendant.” The rent sued for accrued during the tenancy of the last tenant.

The defendant asked the following declaration of law, marked “B,” which the court refused to give:

“If the jury believe from the evidence that defendant, with the consent of plaintiff, transferred the lease to other parties, and that said parties, without the consent of plaintiff, and without the knowledge or consent of defendant, transferred the said lease to third parties, that plaintiff received rents from said parties, and that the amount sued for accrued during the time said third parties were in possession, defendant is not liable for such rent, and the jury will find for the defendant.”

Instructions to the effect that the consent of Clemens to the transfer of the possession of the premises, and the acceptance by him of rent from the subsequent occupants discharged the defendant, were refused. The court declared the law as follows: “The relation between plaintiff and defendant, under the lease, not having been dissolved during the first year, the term, in effect, became extended to the full five years; and the evidence fails to establish such a surrender or release after the first year,...