Landers v. Schneider
| Decision Date | 23 April 1914 |
| Citation | 165 S.W. 872,180 Mo.App. 49 |
| Parties | D. J. LANDERS, Administrator of the ESTATE OF FRANCIS S. HEFFERMAN, Deceased, Respondent, v. JOHN J. SCHNEIDER AND SCHNEIDER BROTHERS, a Partnership Composed of JOHN J. SCHNEIDER and S.W. SCHNEIDER, Appellants |
| Court | Missouri Court of Appeals |
Appeal from Greene County Circuit Court.--Hon. Alfred Page, Judge.
REVERSED AND REMANDED (with directions).
Reversed and remanded.
Hamlin & Seawell for appellants.
(1) The relation of landlord and tenant existed between plaintiff and defendant and the defendant John J. Schneider as trustee for the co-partnership could have defended, or the defendants as a co-partnership are entitled to defend and prosecute their counterclaim. Geer v. Zinc Co., 126 Mo.App. 173; Roth Tool Co. v. Champ Spring Co., 93 Mo.App. 537; Hines v. Ecker, 34 Mo.App. 650; American Central Ins. Co. v. Railroad, 74 Mo.App. 89; State ex rel v. Allen, 124 Mo.App. 476; Green v. Conrad, 114 Mo. 655; Scharff v. Southern Illinois Construction Co., 115 Mo.App. 157. (2) The evidence introduced and admitted by the court entitled the defendants to have the issues submitted to the jury. Roth Tool Co. v. Champ Spring Co., 93 Mo.App. 537. (3) The court erred in peremptorily instructing the jury to find the issues for the plaintiff in the sum of $ 360 and the possession of the property, and to find the issues for the plaintiff on defendants' counterclaim. The court invaded the province of the jury when it gave the peremptory instruction. Kroge v. Modern Brotherhood of America, 126 Mo.App 693; Gates, Ad'm. v. Nickell, 42 Mo. 169; Benefit Association v. Swenson, 49 Mo. 449; Corbitt v. Mooney, 84 Mo.App. 645; Lederer v Morrow, 132 Mo.App. 438; Dawson v. Wombles, 111 Mo.App. 532.
Henry C. Young and Talma S. Heffernan for respondent.
(1) A claim of a co-partnership cannot be off-set against a claim of a creditor of one of the individuals of that co-partnership. Finney v. Turner, 10 Mo. 208; Lamb v. Broskie, 38 Mo. 51; Weil v. Jones, 70 Mo. 560; Payne v. O'Shea, 84 Mo. 129; Bagnell T. Co. v. Railroad Co., 180 Mo. 421; Cale v. Armour, 153 Mo. 350; Huston v. Tyler, 140 Mo. 264. (2) The assignment of a written lease, or the consent to such assignment cannot be shown by parol, but the evidence thereof must be in writing. Nally v. Reading, 107 Mo. 350; Teifenbrun v. Teifenbrun, 63 Mo.App. 253. (3) The whole contract by which John J. Schneider took title to the lease is conclusively presumed as a matter of law to have been embraced in the written assignment thereof, and in the written consent thereto executed by plaintiff's decedent. Dexter v. MackDonald, 196 Mo. 373.
--This case was tried on an amended petition filed by the administrator of the estate of Francis S. Heffernan, deceased, setting up a lease of a storeroom and charging that the rent for the months of March, April, May, June, July, August and September, of the year 1912, was due, and that upon demand defendant John J. Schneider (who was the sole defendant named in possession in the petition) refused to pay the same. Judgment was asked for the recovery of the premises and for the accrued rent amounting to three hundred and sixty dollars, together with one hundred dollars as damages alleged to have been sustained by reason of the unlawful detention of the premises.
The court permitted one S.W. Schneider to file an answer with the defendant John J. Schneider in which it is alleged that the lease (originally made to one Follette) had by written assignment and written consent of the lessor been transferred to John J. Schneider, and that such transfer was in fact made to John J. Schneider for the use and benefit of the firm of Schneider Brothers, a partnership composed of John J. Schneider and S.W. Schneider. As a counterclaim, the members of this firm alleged that they were operating a bakery and confectionery shop in the leased storeroom; that while they were so conducting said business the plaintiff lessor attempted to put a second story on the building; that through his negligence he permitted the roof to fall in upon the room occupied by defendants thereby damaging them; and that said roof having fallen in, heavy rains damaged the goods and property of the defendants. The items of loss are set forth in the counterclaim, such as damages to cookies, pies, cakes, candies, sugar, flour, cigars, etc.; and further, that for a few days between September the sixteenth and October the sixteenth their place of business was closed by reason of which they lost a large amount of trade because their customers were forced to go elsewhere to purchase goods. They ask judgment for one thousand dollars.
The reply admits that defendants are in possession of the premises, and alleges a misjoinder of parties defendant as well as an improper defense to plaintiff's cause of action in that the plaintiff's claim is based on the written contract of lease whereas the defendants' counterclaim is based on a tort alleged to have been committed owing to the negligent manner in which plaintiff attempted to add a second story to the building.
To sustain the cause of action, plaintiff introduced the lease, and it was then admitted in open court that the plaintiff is the duly qualified and acting administrator of the estate of Francis S. Heffernan, and that all the rent due from October the first, 1911, to September the first, 1912, was unpaid. It is unnecessary to detail other offers by the plaintiff for a proper disposal of the questions before us.
The defendants called a witness, whereupon plaintiff objected to the introduction of any testimony for the reason that the answer filed failed to state facts sufficient to constitute any cause of action on defendants' counterclaim, and for the reasons set up in plaintiff's reply.
Defendants were permitted to prove some of the allegations in their answer, and this, together with the offer to prove others, constituted their case.
The court at the conclusion of all the evidence gave a peremptory instruction, and in accordance therewith the jury returned a verdict for the plaintiff in the sum of three hundred and sixty dollars, the amount asked for in the petition as accrued rent, and for possession of the premises, and in favor of the plaintiff on defendants' counterclaim. Judgment was entered accordingly and defendants perfected an appeal.
The judgment in this case was for the right party for the reason that the plaintiff sued on a contract for rent admitted to be unpaid and possession admitted to be in the defendants. Defendants attempted to defeat plaintiff's action by setting up a counterclaim which is based on a tort--the trespass of the landlord. It is settled in this jurisdiction that a cause of action such as was stated by the defendants will not avail as a counterclaim to an action on a contract for rent. The alleged trespass in no wise arose out of the contract or transaction set forth in the petition as the foundation for plaintiff's claim, and was in no way connected with the subject of the action, nor did it arise out of any contractual relation, and thus it fails to fall within the tests for counterclaims laid down in section 1807, Revised Statutes 1909. The damages sought to be recovered by defendants to offset plaintiff's cause of action are alleged to have been occasioned by the wrongful trespass committed...
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