Columbia Brewing Co. v. Miller

• Decision Date: 16 April 1907
• Citation: 124 Mo. App. 384,101 S.W. 711
• Parties: COLUMBIA BREWING CO. v. MILLER.
• Court: Missouri Court of Appeals

101 S.W. 711

124 Mo. A. 384

COLUMBIA BREWING CO. v. MILLER.

St. Louis Court of Appeals. Missouri.

April 16, 1907.

1. LANDLORD AND TENANT — TENANCY FROM MONTH TO MONTH — TERMINATION — NOTICE TO QUIT.

Where two notices to vacate are served on a tenant at the same time, giving him the option to continue in possession at an increased rental or to vacate if he is not willing to pay it, they do not constitute a notice to quit, since such a notice must be absolute.

2. ESTOPPEL — CLAIM IN JUDICIAL PROCEEDINGS.

In an action for rent, a tenant is estopped to deny that he agreed to pay the rent demanded, where in a former suit against him for unlawful detainer of the same premises an instruction was given at his request, wherein he asked the jury to find that, when he was notified by the landlord to vacate or pay the increased rent demanded, he had elected to remain and pay the increased rent.

3. LANDLORD AND TENANT — RENT — EXPRESS CONTRACT.

Where a tenant, after receiving notices that the rent on the premises had been increased, elected to keep them and pay the increased rent, the landlord was entitled to recover the rent as on an express contract.

Appeal from Circuit Court, Jefferson County; Jos. J. Williams, Judge.

Action by the Columbia Brewing Company against W. H. Miller. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

On January 12, 1905, Mary C. Kenner and her husband, Francis P. Kenner, leased to appellant a hotel and saloon building, situated on lot 6, block 4, in the city of Elvins, St. Francois county, Mo., known as "Miller's Hotel," for a term of three years, at a rental of $900 per annum, payable annually in advance. At the date of the execution of the lease, respondent was occupying the premises as tenant of the Kenners from month to month, at a rental of $60 per month. His rent month ended on the 15th day of the month, and on February 15, 1905, he attorned to appellant by paying $60, the amount of rent due on that date. On March 13, 1905, appellant served the following notice on respondent: "To W. H. Miller, Elvins, Mo. The undersigned Columbia Brewing Company, a corporation, being entitled as lessee to the possession of the premises, consisting of that two-story frame hotel and saloon building, known as `Miller's Hotel,' situate on lot six block four of the city of Elvins, county of St. Francois, Missouri, has decided to fix the rate of the rental of said premises at the sum of one hundred and fifty dollars per month, payable monthly in advance. Such rent for said premises at said rate of one hundred and fifty dollars per month to be in effect from and after March 15, 1905. You are hereby notified of such fact and will be governed thereby. Dated Farmington, Mo., this thirteenth day of February, 1905. Columbia Brewing Company, By its agent and attorney Edward A. Rozier." And on the same date and at the same time served the following other notice on respondent: "Farmington, Mo., Feb. 13, 1905. To W. H. Miller, Elvins, Mo. You are hereby notified that it is the intention of the undersigned Columbia Brewing Company, a corporation, to terminate your tenancy of the premises now occupied by you as a tenant of the undersigned, which premises are described as follows, to wit: All of lot six (6), block four (4) of the city of Elvins in St. Francois county, Missouri, whereon is situated the two-story frame building, used as a hotel and saloon, known as `Miller's Hotel,' excepting therefrom the one-story frame store building now occupied by Ed Roberts; and you are required on or before the fifteenth day of March, 1905, to remove from and quit possession of the above described premises, and to deliver to the undersigned on or before said fifteenth day of March, 1905, the full and complete possession of said premises. Columbia Brewing Company, By its Attorney and Agent, Edward A. Rozier." Respondent refused to quit or to pay the $150 per month as rent, and on March 30, 1905, appellant commenced a suit against him for unlawful detainer before a justice of the peace, which in due course was appealed to the St. Francois circuit court, where on a trial de novo the verdict and judgment were for respondent. No appeal was taken from the judgment. On September 2, 1905, respondent voluntarily vacated the premises, having paid no rent from March 15 to September 2, 1905, and the action is to recover the rent which accrued during this period.

The petition alleges that respondent "agreed to pay this plaintiff as rent for said premises the sum of $150 per month from the 15th day of March, 1905, for each month that defendant should continue in the occupation of said premises. Plaintiff states that defendant has continued to occupy said premises from the 15th day of March, 1905, to the 2d day of September, 1905, a period of 5½ months, and is now justly indebted to plaintiff in the sum of $825 as rent for said premises. Plaintiff further states that defendant has not paid said sum of $825, nor any part thereof, though the same has been often demanded of defendant by plaintiff." The answer was a general denial. The evidence shows there was no written or verbal express agreement between appellant and respondent, whereby the latter agreed and promised to pay appellant $150 per month as rent for the premises. It appears appellant was anxious that the tenant occupying the premises should handle its brew of beer. Respondent declined to do this, and the evidence shows that appellant did not expect respondent to pay $150 per month as rent, but gave him notice of this increase of the rent for the purpose of covering, not only the rent, but any damages it might suffer by reason of respondent's refusal to handle its beer while he occupied the premises, and also to cover any expense it might be put to in suits for the purpose of gaining possession of the premises from respondent. On March 15, 1905, respondent tendered appellant a check for $60 in payment of one month's rent. Respondent refused to accept the check, for the reason, it claimed, it was not enough to pay the rent.

Appellant read the following instruction given in the unlawful detainer suit in behalf of respondent, to wit:

"(6) The court instructs the jury that, under the two notices given by plaintiff to defendant, defendant had the right to exercise his option and either remove from the premises of plaintiff or retain possession thereof at a rental of $150 per month; and, if the jury find that defendant elected to retain possession of the premises in controversy at the rental of $150 per month, then they must find the defendant not guilty of unlawful detainer in the manner and form as charged."

Respondent read the following instructions given on behalf of appellant in the unlawful detainer suit:

"(3) The court instructs the jury that if you find...