O'Fallon v. Boismenu

• Decision Date: 30 June 1834
• Citation: 3 Mo. 405
• Parties: O'FALLON, ADM'R OF MULLANPHY, v. BOISMENU.
• Court: Missouri Supreme Court

3 Mo. 405

O'FALLON, ADM'R OF MULLANPHY,

v.BOISMENU.

Supreme Court of Missouri.

June Term, 1834.

ERROR FROM THE ST. LOUIS CIRCUIT COURT.

M'GIRK, C. J.

Boismenu brought an action of assumpsit for use and occupation against Mullanphy; judgment was given for the plaintiff. It appears that Boismenu had, from about the year 1827 or '8, by himself or tenants, occupied and possessed a certain house on Water street in St. Louis; that about the year 1828, one Daniel McGurrin, now deceased, took possession of the house as the tenant of the plaintiff, and used and occupied the same as such tenant until his death, which happened about the first of December, 1830. That some time before the death of McGurrin, and during his last sickness, John Mullanphy managed said property for McGurrin, and immediately after the death of McGurrin, Mullanphy exercised authority over and let the said house, and claimed to be the agent of McGurrin's executor; that after the death of McGurrin, the house was let by Mullanphy to one James Wood, at different times. By the testimony of Wood it appears that in the spring of the year 1831, Mullanphy as agent let the house to him; that the rent was paid to the said agent; that in the spring of 1832, the witness wished to get the house for a year, and applied to Mullanphy for the same; that having heard that McGurrin's lease was out, he mentioned this to Mullanphy, and Mullanphy replied, I know the lease is out and I expect to have a law suit with Boismenu, the plaintiff, but that the witness need not mind that, all he had to do was to pay the rent, and that Mullanphy would guaranty to him the possession; the witness thereon made a contract with Mullanphy to occupy the house for a year, to pay the rent to Mullanphy at the rate $25 per month, and Mullanphy agreed and did cover the house and made some other repairs, without which the house was not in a condition to be occupied; that Wood enjoyed the house according to the lease, and paid the rent to Mullanphy; that before that time Mullanphy had always receipted for rent as the agent of McGurrin's executor. It was also proved that the rent paid before the last year, and before the repairs were made, was $15 per quarter; that the rent of $800 was paid to Mullanphy. When the plaintiff's evidence was closed, the court instructed the auditors that the plaintiff could not recover on the court for use and occupation, but that he might go on the count for money had and received. The defendant's counsel then moved the court to instruct the auditors, that the plaintiff could not recover on either count of his declaration, which the court refused to do, but instructed the auditors that if they should find that Mullanphy, in making the contract with Wood in 1832, acted in good faith as the agent of McGurrin's executor, and not collusively, then the plaintiff is not entitled to recover in this action the money received by Mullanphy from Wood as rent; and that there was no evidence in the case to sustain an action for use and occupation; but if they should find that Mullanphy took advantage of his previous agency to put Wood in possession as the tenant of Mullanphy, with intent by this contrivance to hold possession adversely to the plaintiff, then the plaintiff is entitled to recover for the rent paid by Wood as money had and received.

Second. If the auditors find that the premises were let by Mullanphy to Wood for the whole of McGurrin's term, then it would amount to an assignment of the term; that Wood thereby became the tenant of the plaintiff, and that the plaintiff thereby became entitled to recover for money had and received for so much as Mullanphy received of Wood for the last year, which refusal and instructions given were excepted to. The auditors made their report and the defendant excepted to the report, the exceptions were overruled. The errors assigned are, the refusal of the court to give the instructions asked, and the giving of those given.

There is but one question raised in this case, which grows out of the first instruction given by the court on the part of the plaintiff, which question is this:...