Green v. Bell

• Decision Date: 31 January 1877
• Citation: 3 Mo.App. 291
• Parties: CHARLES GREEN, Administrator of AUSTIN PIGGOTT, Respondent, v. HENRY BELL et al., Appellants.
• Court: Missouri Court of Appeals

3 Mo.App. 291

CHARLES GREEN, Administrator of AUSTIN PIGGOTT, Respondent,

v.HENRY BELL et al., Appellants.

St. Louis Court of Appeals, Missouri.

Jan. 31, 1877.

1. In an action by an executor for rent due under a lease, the lessee may recoup on account of damages for breach of a covenant to repair.

2. The fact that the covenant to pay rent and the covenant to repair are separate and distinct covenants does not affect the right of the lessee to recoup.

3. A lessee cannot be deprived of his right to recover damages caused by the dilapidation of the leased premises because he did not himself repair, where the lessor had covenanted to repair.

4. The measure of damages for a breach of a covenant by the lessor to repair is the proximate and unavoidable injury to the lessee consequent upon the breach.

APPEAL from St. Louis Circuit Court.

Reversed and remanded.

J. M. & C. H. Krum, for appellants, cited: Wag. Stat. 1016, sec. 13; Pom. on Rem., sec. 778; Stiles v. Smith, 55 Mo. 363; Lay v. Mechanics' Bank, 61 Mo. 72; Cook v. Soule, 56 N. Y. 420; Taylor's L. & T., secs. 371, 374; King v. Woodruff, 23 Conn. 56; Hay v. Short, 49 Mo. 139; Gordon v. Bruner, 49 Mo. 570; McAdow v. Ross, 53 Mo. 199; Aubuchon v. Long, 23 Mo. 99; Chambers' Admr. v. Wright, 40 Mo. 485; Gamble v. Gibson, 59 Mo. 594; Dixon v. Niccolls, 39 Ill. 372; O'Bannon v. Roberts, 2 Dana, 54; King v. Anderson, 20 Ind. 385; Robbs' Appeal, 41 Pa. St. 45; Mills v. Merryman, 49 Me. 65; Thompson v. North Missouri R. R. Co., 51 Mo. 190.James Taussig, for respondent, cited: Wag. Stat. 87, sec. 26, p. 1352, sec. 37; Garnhardt v. Finney, 44 Mo. 460 (citing Dumpors' Case, 1 Smith's Ld. Cas. 102); Taylor's L. & T., 4th ed., secs. 357, 368; Aubuchon v. Long, 23 Mo. 99; McPherson v. Meek, 30 Mo. 349; Fisher v. Goebel, 40 Mo. 475; Cook v. Soule, 56 N. Y. 423; Rector v. Rankin, 1 Mo. 371.

BAKEWELL, J., delivered the opinion of the court.

This is a suit for $791.66, one month's rent, from June 15 to July 15, 1875, alleged to be due by defendants for certain premises occupied by them as a store. The petition sets out a written lease from plaintiff's intestate to defendants for the term of two years, from March 15, 1874, at the yearly rent of $9,500, payable in monthly installments; and alleges a breach of the covenant to pay rent, by a refusal to pay the month's rent due on July 15, 1875. The petition says that the rent was regularly paid up to that date; and that plaintiff was appointed administrator of Piggott on January 15, 1875.

The answer of defendants admits all the allegations of the petition except the allegation that $791.66 is due for the month ending July 15, 1875, and sets up by way of counter-claim that, by the lease sued on, the lessor, plaintiff's intestate, covenanted to keep the outside of the building demised in good repair; that there has been a breach of that covenant in that plaintiff, who then had charge of the building and was collecting the rents under the lease, suffered the outside of the building to become and remain out of repair during the month of June, 1875, so that, on June 20, 1875, goods of defendants in the building were damaged by water to the amount of $446.19. The answer further alleges that this happened by reason of a storm of rain, and that, though defendants used every reasonable precaution to protect their property, they were unable to do so, owing to the leaky condition of the roof and windows. A complete list of the goods damaged, and a description of the goods, with the actual damage to each article in dollars and cents, accompanies the answer. And defendants state that, after deducting this damage, $345.47 is due plaintiff on account of rent sued for, which they pay into court. The answer concludes with a prayer for judgment against plaintiff for the counter-claim for $446.19, the amount of the damage to the goods.

To this counter-claim plaintiff demurred, and the demurrer was sustained. On the trial of the cause the plaintiff read the lease in evidence, and had judgment for the rent claimed. Defendants filed a motion for a new trial, and also a motion in arrest of judgment, which were overruled.

1. We think the motion in arrest of judgment was properly overruled. Real estate descends to the heirs, and as a general principle it may be said that the administrator has nothing to do with it except in case of a deficiency of assets. He is required, however, in this State, to include it in his inventory, and its value is taken into account in fixing the amount of his bond. In Missouri he often takes charge of it as soon as his letters are issued; and when he does so, and collects the rents, he is responsible for them as assets, and his sureties are liable. It is alleged in the answer in this case that the administrator collected the rents of the property occupied by defendants from the date of the death of his intestate, and, it would seem, with the consent of the heirs; certainly no one but the heirs can be heard to dispute his right to do so. He sues, then, as the trustee of an express trust; and can sue in his own name as administrator. That he should do so is generally for the benefit of all the parties interested; it enables the administrator to pay the debts of the intestate, and may often prevent a sale of the real estate. The consent of the heirs may well be presumed, especially as, under our law, he is bound to charge himself with these rents in his settlements, and they are distributed under the order of the Probate Court.

2. It is, however, insisted by counsel for respondent that the covenant of the landlord to repair runs with the land, and that an action for the breach of it can be maintained only against the heirs of deceased, and not against the administrator or executor.

If it should be conceded that a separate and independent action could not be maintained against an administrator in possession, and who had collected rents, for a breach of covenant in the lease of his intestate to repair, it would not by any means follow that, in an action for rent by the administrator, the tenant could not recoup. Counter-claim includes recoupment and set-off; and, setting the statutory provisions as to counter-claim altogether aside, in the absence of any provision of the Practice Act, the right to recoup where a proper case might arise would always remain. There can be no...