Constant v. Abell

• Decision Date: 31 August 1865
• Citation: 36 Mo. 174
• Parties: ALEXANDER CONSTANT, Plaintiff in Error, v. JOHN J. ABELL, Defendant in Error.
• Court: Missouri Supreme Court

36 Mo. 174

ALEXANDER CONSTANT, Plaintiff in Error,

v.JOHN J. ABELL, Defendant in Error.

Supreme Court of Missouri.

August Term, 1865.

Error to Buchanan Court of Common Pleas.

The plaintiff moved the court to give to the jury the following instructions, viz:

1. Plaintiff moves the court to instruct the jury, that if they believe from the evidence that the parties who occupied the property mentioned in plaintiff's petition, before and after the 20th of August, 1862, were the tenants of defendant and paying him rent up to that time; and, further, that they continued to occupy said property after said 20th day of August, 1862, without any new contract with plaintiff, for two months, then they will find for the plaintiff, and assess his damages at three hundred dollars, with interest from the time such rent was due at the rate of six per cent. per annum.

2. If defendant rented said property to said military authorities of the United States, or State of Missouri, or authorized them to take possession of it, and collected rent from them prior to the 26th day of August, 1862, and up to that time, and paid rent to plaintiff up to that time, then plaintiff had a right to regard the defendant as his tenant; and a holding over after said 20th of August, 1862, by the parties in possession without any objection on the part of plaintiff, and without any new contract with plaintiff, made said defendant the tenant of plaintiff from year to year, and plaintiff is entitled, in such case, to recover one year's rent with interest as aforesaid.

The court refused the first, but gave the second instruction.

The defendant moved the court below to instruct the jury as follows, viz:

1. The defendant moves the court to instruct the jury, that if they believe from the evidence that defendant held the whole house and property, named in the lease in plaintiff's petition set forth, by a joint lease as therein set forth, and that previous to the expiration of said lease the United States and State of Missouri have taken possession without lease of the whole of said house, without lease of defendant, for hospital purposes, and that defendant paid up the rent until the expiration of said lease, and that the State continued to occupy it after said lease expired, and for said time; that the State occupied said house after said lease expired, said Beauvais & Robidoux applied to the State and received from her officer the rent for said house thereby accepting the State as their tenant, then the law does not presume that defendant held over under said lease for another year, and in such case the jury will find for the defendant.

2. That if the military authorities of the State held said house, after the expiration of the lease named in plaintiff's petition, without the consent of defendant, then he is not liable for holding said premises over after the expiration of said lease, and they will find for the defendant.

3. That if, after the military authorities had held said property, after the termination of said lease, the agent of plaintiff applied to the said authorities for pay for said house, then he cannot hold that defendant had held over for another year, and recover the rent from him.

4. That unless the jury believe from the evidence that defendant did hold the plaintiff's property for a time over and after the expiration of said lease, they will find for defendant.

The court gave all of defendant's instructions, to which plaintiff objected.

Jones & Townsend, for plaintiff in error.

The court erred in refusing to give the first instruction asked on the part of the plaintiff, as also in giving those asked on the part of the defendant.

The lease provides for several payments; that is, so much to Beauvais, so much to Robidoux, and so much to plaintiff. The fact that all are embraced in the same lease, cannot certainly affect the right of each one to sue and recover the amount due to him separately. The ownership of the property was not joint, but each of the three parties owned a distinct part of it, and of different values, as shown by the case; and the original lessees agreed to pay them separately. Defendant took an assignment of the lease with these provisions, and paid the rent to the agent of the plaintiff up to the 20th of August, 1862, for his (plaintiff's) portion of the property. It cannot be said that a payment to the other parties, Beauvais and Robidoux, up to the said 20th of August, of the three hundred dollars a year, due to the plaintiff, would have been good against him; then how can it be said that a payment by the military authorities, made afterwards, can have a different effect? As to what constitutes a several contract, see Robbins v. Ayres, 10 Mo. 538; Sublitt v. Nolan, 5 Mo. 516; 19 Mo. 42.

The second instruction on the part of the defendant is, in effect, that it must be shown, in order to entitle the plaintiff to recover, that defendant consented to the holding over on the part of the military authorities. The defendant was plaintiff's tenant, and was certainly bound to deliver up the property, or offer to do so; he was permitting the Government to occupy the property, and collecting the rent. It was not for plaintiff or his agent to know whether the holding over was with or without the consent of the defendant. Plaintiff had to look to him. The Government was, at the most, an under-tenant, and not liable to plaintiff for rents. (Tay. Land & Ten. § 448.)

The third instruction seems so clearly erroneous, that we can hardly see how it can be insisted upon. The agent of plaintiff was anxious, of course, to collect the rent. It was immaterial as to who should pay it. He demanded it of plaintiff, was refused, and then tried to get it of Maj. Chew. Here he also failed; Maj. Chew refused to pay; he had no contract to pay rent to plaintiff; the defendant had. How could this contract be changed by the fact of McLaughlin having asked Chew if he would pay &c.? A tenant cannot resist payment of rent without showing that he was legally evicted, &c. (Tay. Land. & Ten., 372, 375.) As to the effect of holding over after the expiration of the term, see Tay. Land. & Ten., 13 & 35, and authorities their cited.

If a tenant holds over after the expiration of the term, the landlord may elect to treat him as a tenant or a trespasser; if he fails to proceed against him as a trespasser, a new tenancy arises, by implication upon the same terms as the old. (Tay Land. & Ten., § 22.)

H. M. & A. H. Vories, for defendant in error.

The lease to defendant's assignor was a lease made by Robidoux, Beauvais & Constant, by which they, by one entire contract, rented to him an entire house. After the lease was out, two of the parties received their pay from the Government, and recognized the Government agents as tenants; hence there could be no presumption that the defendant held over the other small and useless part of the house. If there is a holding over, it cannot be as to part of the contract, but the whole lease must be renewed.

Again, at the time that Robidoux and Beauvais applied to the Government for the rent for the house, after the termination of the lease to defendant, they received all of the pay that the Government would give for the whole building, as it refused...