Gary Realty Company v. Kelly

• Court: Missouri Supreme Court
• Writing for the Court: FARIS, J.
• Citation: Gary Realty Company v. Kelly, 214 S.W. 92, 278 Mo. 450 (Mo. 1919)
• Decision Date: 03 June 1919
• Parties: GARY REALTY COMPANY v. E. P. KELLY et al., Appellants

214 S.W. 92

278 Mo. 450

GARY REALTY COMPANY v. E. P. KELLY et al., Appellants

Supreme Court of Missouri, Second Division

June 3, 1919

Appeal from Jackson Circuit Court. -- Hon. Thomas B. Buckner, Judge.

Affirmed.

Frank M. Lowe for appellants.

(1) It was error, under all the circumstances in this case as disclosed by the record, to deny appellants a jury trial. McGeagh v. Nordberg, 53 Minn. 235; Burnham v Ry. Co., 88 F. 627; Chicago Ry. Co., v. McGrew, 113 Mo. 393. (2) The finding and judgment of the court are against the law and the evidence, and the court erred in holding that the appointment of a receiver ipso facto made void the lease. (a) The law does not support the rule of court below in holding that the appointment of a chancery receiver ipso facto determined the lease. Pa. Steele Co v. New York Ry. Co., 198 F. 728; Taylor on Landlord and Tenant (9 Ed.), sec. 136a, p. 167; Durand & Co. v. Howard & Co., 216 F. 585; State v. Reynolds, 209 Mo 161; Smith v. Miller, 49 N. J. L. 524. (b) The receiver could not enter into a new contract from month to month and bind the court without the sanction and order of the court. St. Joseph Gas Co. v. Barker, 243 F. 206. (c) If the appointment of a receiver did make void the lease then and in that case respondent waived the breach by accepting rent from the receiver. Garnhart v. Finney, 40 Mo. 449; William v. Vanderbilt, 145 Ill. 238; Kenny v. Seu Si Lun, 101 Minn. 253; Guptill v. Macon Stone Supply Co., 140 Ga. 696. (d) If we are wrong in the above provisions then we are entitled to have our contention sustained for the reason that respondent has failed to prove that there was a month to month lease entered into. (3) The verdict is excessive and no evidence was introduced of any damage having been sustained by respondent. It is hardly necessary to emphasize this proposition in the face of the fact that the word "damage" was never mentioned to any witness and no testimony was offered that in the remotest fashion warranted the court in giving a judgment for $ 2000 against appellants. (4) The finding and judgment of the court was clearly the result of bias and prejudice of the court against these appellants. (5) The court erred in permitting respondent to file the stipulation waiving a jury that had been entered into at the November term of court and which had since been withdrawn by motion of appellants.

Cooper, Neel & Wright for respondent.

(1) The jury waiver was binding. Sec. 1970, R. S. 1909; Thompson v. King, 173 Mass. 442; Alcorn v. Dennis, 105 P. 1012. (a) Exactly the same causes of action embraced in the two counts of the amended complaint were merged in the original. Shantz & Kroff v. Reynolds, 70 Mo.App. 668; Bradford v. Tilley, 65 Mo.App. 181. (b) In the first complaint we charged that the complainant had possession on the date the unlawful detainer began, because, although the appellants were in actual possession, holding over under claim of assignment by the lessee, the tenant's possession is that of his landlord, and when the tenant, at the expiration of his term, relets and leaves the premises or surrenders his lease, the landlord is considered as resuming possession immediately though not actually present on the land. Kaulleen v. Tillman, 69 Mo. 510; May v. Luckett, 48 Mo. 472; Prendergast v. Graverman, 166 Mo.App. 39. (c) The next amendment was increasing the amount of damages asked for in the ad damnum clause to the extent of $ 3000. Such an amendment was clearly permissible, but to avoid any room for argument we withdrew it at the trial. Such re-amendment as to the amount of damages asked cured the change in that respect, if such change was material. (d) And it is wholly immaterial that the amended complaint stated the monthly value of the rents and profits and in its prayer specifically prayed recovery thereof, while the original complaint did not, for Sec. 7674, R. S. 1909, was mandatory upon the court to allow and render judgment for such damages in the absence of any prayer therefor in the complaint. Moore v. Dixon, 50 Mo. 425; Nelson v. Alporte, 161 Mo.App. 608; Hixon v. Selders, 46 Mo.App. 277; Bierkenkamp v. Bierkenkamp, 88 Mo.App. 449; Coles v. Foley, 13 Mo.App. 253; Balch v. Myers, 65 Mo.App. 428. (2) If the lease was terminated ipso facto, as we think it clearly was, by the appointment of a receiver, all doors to argument are closed to appellants. For it becomes immaterial whether there was a month-to-month tenancy or not, and whether respondent accepted rent. No waiver by acceptance of rent could reinstate the void lease, but a wholly new agreement, express and in writing, which is absent in this case, would be necessary for that purpose under Sec. 7883, R. S. 1909. All arrangements between the respondent and the receiver being verbal, would at the most create a tenancy, which respondent could and did terminate by the statutory month's notice. (a) Termination clause is applicable to a chancery receiver. 5 Cyc. 246-12; In re Fixen, 96 F. 748; Cox v. Wall, 99 F. 546; Galbraith v. Wood, 124 Minn. 210; Louis K. Liggett v. Wilson, 224 Mass. 456. (b) Appointment of receiver ipso facto terminated lease. 1 Bouvier's Dictionary p. 585; 2 Tiffany, Landlord & Tenant, par. 194c, p. 1368; 24 Cyc. 1360; Marmet Co. v. Archibald, 37 W.Va. 778; Munigle v. City of Boston, 85 Mass. (3 Allen) 230; Estelle v. Dinsbeer, 30 N.Y.S. 243. (c) But even if the lease was voidable, respondent did not waive its termination. (3) Even in the absence of an express agreement, a month-to-month tenancy would be conclusively implied from the conduct of the receiver in holding over after respondents' notice that he might remain only as a month-to-month tenant. Continued occupancy under such conditions is always held to be an acceptance of the terms imposed, the tenant's assent being inferred. Hunt v. Bailey, 39 Mo. 257; Ins. & Law Bldg. Co. v. National Bank of Mo., 71 Mo. 58; 1 Taylor on Landlord & Tenant, par. 22; 16 R. C. L. par. 683; 2 Tiffany, p. 1486; Gardner v. Dak. Comrs., 31 Minn. 33; Shipman v. National, 64 Tex. 174.

OPINION

FARIS, J.

This is an action under our forcible-entry and unlawful-detainer statutes for the possession of certain premises situate in Kansas City. Plaintiff had judgment for possession; for damages, assessed at two thousand dollars, which sum was doubled by the court; for future rents and profits, assessed at $ 650 per month, pending appeal and till possession be delivered to plaintiff, which sum was likewise doubled. Whereupon, defendants Kelly, LeMarquand and LeDoux appealed in the conventional way.

The action originated before a justice of the peace and was begun by filing a complaint which, formal parts and signature of counsel omitted, reads thus:

"Gary Realty Company, a corporation, duly organized and existing according to law, plaintiff, complains of E. P. Kelly, Paul LeMarquand, A. LeMarquand, O. LeDoux, F. G. Bonfils, Harry H. Tammen and Empress Theatre Company, a corporation, defendants, and says that on the 29th day of October, A. D. 1915, and long before that time he was in the lawful and peaceable possession of the certain premises situated in Kansas City, Jackson County, Missouri, described as the certain (formerly store) room at the northwest corner of Twelfth and McGee Streets in said city, having a frontage of twenty feet and ten inches on said Twelfth Street and extending back northward the full depth of Lot 134, Swope's Addition in said city, and still further north beyond the north line of said lot, approximately 16 feet, said room having been used as a part of the lobby of the Empress Theatre in the City of Kansas City, Kaw Township, of the County of Jackson, State of Missouri, and has ever since been and still is entitled to the possession thereof; that on the said 29th day of October, 1915, the defendants wilfully and unlawfully hold over and detain possession of said premises or wrongfully and without force, by disseizin, obtained possession of said premises, and have ever since held and still hold possession thereof wrongfully and unlawfully; and although the plaintiff did, on the 30th day of October, 1915, demand in writing the possession of said premises of the defendants, they, the said defendants refused and neglected to quit the possession thereof, to the plaintiff's damage in the sum of two thousand dollars, Wherefore plaintiff demands judgment for the possession of said premises and for said damages."

Thereafter, by certiorari under the statute defendants caused the proceedings to be removed to the Circuit Court of Jackson County. In the latter court, and at the December Term, 1915, semble, a stipulation waiving trial by jury was duly filed in the case. This stipulation, omitting formal parts and signatures of counsel, reads thus:

"Come now the parties hereto and by their attorneys hereby stipulate and agree that the trial of this cause by jury is hereby waived and that said cause may be set for trial on any day during the first week of January, 1916, term of court, or thereafter, according to the convenience of the court."

On the same day on which the above stipulation was filed, defendants Kelly, LeMarquand and LeDoux filed formal answers, which consisted, in all pertinent parts, of (a) general denials except of the fact of possession, which defendants Kelly, LeMarquand and LeDoux admitted; (b) a plea of ownership and possession under a purchase by said defendants of the lease at a sale by the receiver of the Empress Theatre Company, pursuant to an order of the circuit court; (c) a tender, as such tenants so in possession of all rent due according to the tenor of the instrument of lease evidencing the term so purchased, and (d) a waiver of forfeiture by plaintiff of conditions broken, arising, it is averred, from...