Commercial Bldg. Co. v. Lehman

Decision Date05 June 1928
Docket NumberNo. 20215.,20215.
Citation6 S.W.2d 1001
PartiesCOMMERCIAL BLDG. CO. v. LEHMAN.
CourtMissouri Court of Appeals

Appeal from St. Louis Circuit Court; Victor H. Falkenhainer, Judge.

"Not to be officially published."

Action by the Commercial Building Company against J. E. Lehman, originally filed in justice court. From a judgment for the plaintiff, the defendant appeals. Affirmed.

Louis Mayer and Irl B. Rosenblum, both of St. Louis, for appellant.

Eliot, Blayney & Bedal, of St. Louis, for respondent.

BECKER, J.

Plaintiff in an action for rent originally filed in the justice of the peace court, on appeal to the circuit court, on a trial de novo to the court without the intervention of a jury, had judgment against the defendant for $240. Defendant in due course appeals.

The statement filed by plaintiff before the justice is as follows:

                                "St. Louis, Mo., July 1, 1924
                  "J. E. Lehman to the Commercial Building
                                Company, Dr
                 "To rent of office No. 511 in the Commercial
                Building
                
                For month of March, 1924................ $ 60 00
                For month of April, 1924................   60 00
                For month of May, 1924..................   60 00
                For month of June, 1924.................   60 00
                                                         _______
                  Total................................. $240 00
                  "Under lease of June 30, 1922."
                

The record discloses that defendant entered into the occupancy of room 511 in the Commercial building in the city of St. Louis, under a lease dated June 15, 1921, which expired June 30, 1922. Thereafter a new lease was made between the parties commencing June 30, 1922, and ending June 30, 1923. One of the provisions of the latter lease was that if the lessee "shall hold over or retain possession of the leased premises after the expiration of the term, in the absence of a formal agreement of extension, this lease shall, at the option of the lessor, be thereby extended for an additional term of one year, upon the same terms and conditions as herein set forth, and in like manner from year to year thereafter."

Defendant remained in possession and paid the rental of the room in question until February, 1924, but during said month of February the defendant vacated the room and concededly paid no rent during the months of March, April, May, and June, 1924.

It is apparent from the record that the trial court entered judgment for plaintiff and against the defendant upon the theory that by defendant holding over after June 30, 1923, the date of the expiration of the last indenture of lease between the parties, and the acceptance of rent thereafter by the plaintiff, defendant impliedly continued in possession under the terms, conditions and covenants in said lease. In our view the court correctly so held.

Appellant urges here that the tenancy of the defendant below after the expiration of the lease was a month to month tenancy, and that the clause in the lease providing that if the lessee retained possession after the expiration of the term the lease should be extended at the option of the lessor for an additional term of one year was unilateral and void and therefore the mere retaining possession of the premises did not operate to renew the lease. To this we cannot accede. Whether said optional clause is unilateral or not is of no moment in the instant case, in that this option is identical with the common-law rule. Woods, Landlord and Tenant (2d Ed.) vol. 1, § 13. Since, under the conceded facts herein, the defendant retained possession of the premises after June 30, 1923, without any formal agreement of extension of the lease, and the plaintiff accepted rent from the defendant after said date during the period of time that the defendant so remained in possession, the lease, in our view, whether measured by the said optional clause or by the rule of the common law, was extended for one year under the same terms, conditions, and covenants. Insurance & Law Bldg. Co. v. Bank, 71 Mo. 58; Fine v. St. Louis, 30 Mo. 177; Quinette v. Carpenter, 35 Mo. 502; Leggett v. Exposition Co., 157 Mo. App. 108, 137 S. W. 893; Amer. Press v. City of St. Louis, 314 Mo. 288, 284 S. W. 482; Blanchon and Bartholomees v. Distilling Corp., 200 Mo. App. 610, 208 S. W. 484; Curtis v. Sturgis & Co., 64 Mo. App. 535; Insurance Co. v. Bank, 5 Mo. App. 333; People's Bank v. Bennett, 159 Mo. App. 1, 139 S. W. 219; Medicus v. Altman, 199 Mo. App. 466, 203 S. W. 637.

Appellant further urges that even though it should be held that the lease was extended for a period of one year after its termination, that the plaintiff should not be permitted to recover for the reason that plaintiff, when the premises were vacated by the defendant, made no effort to rent them in order to mitigate its damages.

There is respectable authority that a landlord is not required, on the abandonment of the leased premises by a tenant in violation of the lease, to make any effort to relet the premises in order to mitigate damages, but the landlord may permit the premises to remain vacant and recover the rent for the remainder of the term. Rice v. Dudley, 65 Ala. 68; Meyer v. Smith, 33 Ark. 627; Respini v. Porta, 89 Cal. 464, 26 P. 967, 23 Am. St. Rep. 488; Boardman Remedy Co. v. Carlin, 82 Conn. 413, 416, 74 A. 682; Harmon v. Callahan, 214 Ill. App. 104; Patterson v. Emerich, 21 Ind. App. 614, 52 N....

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4 cases
  • Von Schleinitz v. North Hotel Co.
    • United States
    • United States State Supreme Court of Missouri
    • October 14, 1929
    ......v. Brecht, 109 Mo.App. 25; Schulte v. Haas, 287. S.W. 816; Commercial Building Co. v. Lehman, 6. S.W.2d 1001. (3) The North Hotel Company could not by chattel. ......
  • First State Bank of Kansas City, Kan. v. Goodrich
    • United States
    • Court of Appeals of Kansas
    • November 18, 1946
    ...... S.W.2d 660; Barton Lumber Co. v. Gibson, 178 Mo.App. 699, 161 S.W. 357; Commercial Building Co. v. Lehman, 6 S.W.2d 1001; Conn Co. v. Orr, et al,. 150 Mo.App. 705, 131 S.W. 765. . ......
  • Longmoor Corporation v. Jeffers, 27200.
    • United States
    • Court of Appeal of Missouri (US)
    • October 21, 1947
    ......Lewis, 8 Mo.App. 336; Lewis v. Perry, 149 Mo. 257, 50 S.W. 821; Commercial Building Co. v. Lehman, Mo.App., 6 S. W.2d 1001.         The trial court also sustained ......
  • Longmoor Corp. v. Jeffers
    • United States
    • Court of Appeal of Missouri (US)
    • October 21, 1947
    ...are the cases of Wilgus v. Lewis, 8 Mo.App. 336; Lewis v. Perry, 149 Mo. 257, 50 S.W. 821; Commercial Building Co. v. Lehman, Mo.App., 6 S.W.2d 1001. The trial court also sustained defendant's motion for a new trial on the seventh ground set forth in the motion, which was that plaintiff's i......

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