Gilliam v. Ball

• Decision Date: 31 January 1872
• Citation: 49 Mo. 249
• Parties: A. W. GILLIAM, Appellant, v. WILLIAM BALL, JR., et al., Respondents.
• Court: Missouri Supreme Court

49 Mo. 249

A. W. GILLIAM, Appellant,

v.WILLIAM BALL, JR., et al., Respondents.

Supreme Court of Missouri.

January Term, 1872.

Appeal from Saline Court of Common Pleas.

W. P. Bush and J. P. Shother, for appellant.

G. T. White, with Boyd & Miller, for respondents.

WAGNER, Judge, delivered the opinion of the court.

This suit was brought by attachment under the 26th section of the landlord and tenant act (Wagn. Stat. 881, § 26), and upon a trial of the issues made up, a verdict was had for the defendants. The only question presented by the record for our determination is the action of the court in refusing to give the second instruction prayed for by the plaintiff. That instruction is as follows: “In determining whether such was the intention of the defendants or either of them, evidence of the statement of either of them as to his or their determination to remove and continue to remove corn until stopped by law, is prima facie sufficient to establish the fact that the landlord was in danger of losing his rent.”

The case shows that Gilliam rented some land to Ball, for which Ball was to pay a certain amount of corn per acre as rent. Ball sub-let a portion of the premises to Harris, and Harris sold one load of corn that he had raised on the land, and Gilliam forbade his removing it, when Harris replied that he would remove corn when he pleased unless stopped by law. Gilliam thereupon sued out his attachment, and attached the whole crop raised by both Ball and Harris. The evidence is abundant to show that the crop and property on the land belonging to the tenants was more than sufficient to satisfy the rent, and there is nothing going to show that the tenant ever contemplated the sale of more than one load of corn. Under such circumstances we do not think that the mere declaration of Harris was even prima facieevidence to establish the fact that the landlord was in danger of losing his rent. But whether it was evidence of any sufficiency or not was a question solely for the jury, and the court had no right to instruct them as to its sufficiency or weight.

The only question was, did the removal of the property endanger the rent of the landlord? And that question was fairly submitted by instructions for both parties which were entirely unobjectionable. (Morris v. Hammerle, 40 Mo. 489; Kinear v. Shands, 36 Mo. 379; Kleun v. Vinyard, 38 Mo. 447.)

Judgment affirmed.

The other judges concur.