Farwell v. Easton
| Decision Date | 31 October 1876 |
| Citation | 63 Mo. 446 |
| Parties | M. C. FARWELL, Respondent, v. JOHN EASTON, et al., Appellants. |
| Court | Missouri Supreme Court |
Appeal from Barton Circuit Court.
W. H. Phelps, for Appellants, cited: Jeffries vs. McLean, 12 Mo. 538; Garnhart vs. Finney, 40 Mo. 449; Tayl. Land. & Ten. §§ 497, 498; Coon vs. Bricket, 1 N. H. 163; Cowp. 803; Ware vs. Wade, 34 Cal. 145; Dawson vs. Coles, 16 Johns. 51.
J. W. Sinnet, for Respondent, cited: Wagn. Stat., ch. 61, § 39; ch. 85, §§ 10, 11; Tayl. Land. and Ten. p. 363, § 500; 1 Washb. R. P. 320; Lessee of Sperry vs. Pond, 5 Ohio, 388.
This was an action of unlawful detainer. In August, 1869, the plaintiff leased certain premises in Carthage, Jasper county, Missouri, to Paul E. Sandige, J. J. Hall and John Easton, trustees of Carthage Lodge number 201, of the Independent order of Good Templars, of the town of Carthage, for the period of one year. It was provided in the lease that the rent should be paid monthly in advance, and that for a failure to pay any instalment of rent for the period of ten days after the same became due, the lease was to become void. The lease contained a clause which forbade any underlease, except for a law and land office.
Soon after the execution of the lease, the defendant, Easton, established in said premises his office as justice of the peace, of which plaintiff had knowledge. The rent was regularly paid to the plaintiff up to December, 1869, when he transferred all his right as lessor to Maas & Cohn, to whom the instalment, due in December, was paid. They re-transferred to plaintiff in January, 1870, with an order for the rent. The instalment for January was not paid, and on the 2d day of February, 1870, after demand made in writing for the possession of the premises, the plaintiff instituted the present action, claiming a forfeiture of the lease for non-payment of rent, and because the premises were used for purposes prohibited by the lease. Evidence was received against the objections of defendants, to show that the rent received from defendants was paid by them as trustees of the order of Good Templars, and that no rent had ever been paid by or received from the defendant Easton in an individual capacity.
By what authority Easton opened an office as justice of the peace in the leased premises, does not appear. There was no testimony to show that he was a sub-tenant of the trustees.
The circuit court ruled, at the instance of the defendants, that the plaintiff could not recover on account of non-payment of rent without a demand therefor. There was no evidence of such demand. This point, having been decided in favor of appellants, need not be further noticed.
The court further ruled that, as the premises were used for a purpose forbidden by the lease, such forbidden use was a continuing cause of forfeiture, and that the receipt of rent by the plaintiff, after knowledge thereof, was no waiver of the forfeiture.
There was a finding and judgment for the plaintiff for the sum of $87.50, but no judgment for the possession.
No error was committed by the court in admitting parol testimony to show by whom and in what capacity rent was paid to the plaintiff....
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...lease and a waiver of performance thereof on one or more occasions is no waiver of the right to insist on performance in future. Farwell v. Easton, 63 Mo. 446; Big Six Dev. v. Mitchell, 138 F. 284; Granite, etc., Co. v. Greene, 54 A. 794; Gluck v. Elkan, 36 Minn. 80; Schultz v. Cardwell, 25......
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