Lawrence Matthews' Adm'r v. Tobener

• Decision Date: 31 October 1866
• Citation: 39 Mo. 115
• Parties: LAWRENCE MATTHEWS' ADM'R, Respondent, v. HENRY TOBENER, Appellant.
• Court: Missouri Supreme Court

39 Mo. 115

LAWRENCE MATTHEWS' ADM'R, Respondent,

v.HENRY TOBENER, Appellant.

Supreme Court of Missouri.

October Term, 1866.

Appeal from St. Louis Law Commissioner's Court.

The petition states that on the 1st January, 1866, plaintiff rented to defendant, by a written lease, certain premises in St. Louis for the yearly rent of $300 per annum, payable monthly in sums of $25, for three years; that defendant entered and occupied, but owes for the use and occupation for the months of May and June, 1862, the sum of $36; and is further indebted to plaintiff in the sum of $450 for the rent of said premises, under said lease, from the 1st day of July, 1862, to the 1st day of January, 1864,--making the total indebtedness of said defendant to plaintiff the sum of $486, for which he asks judgment.

The answer admits the execution of the lease and entry and occupation thereunder, but denied owing the rent claimed in the petition for the occupancy of the premises, or any indebtedness whatever for or by reason of said lease, or the matters stated in plaintiff's petition, because that on the 1st May, 1862, defendant surrendered the possession of the premises to the plaintiff, which plaintiff accepted.

The evidence showed a notice directed and delivered to the plaintiff, dated November 1, 1861, declaring the intention of the defendant to surrender the possession of the house on the first of January following; the vacation of the house, according to said notice, just prior to 1st January, 1862; at the time of the vacating, a delivery of the key of the house to the plaintiff in person; a receipt of the key by plaintiff, and at the time inquiring if he (defendant) had moved everything out, and being so informed, the retaining of the key by the plaintiff until June, 1863; a delivery by the plaintiff of the key, at the time last stated, to an applicant therefor--one Caspar, a stranger to defendant; and upon obtaining the key by Caspar from plaintiff, his (Caspar's) entry upon the premises, and use and occupation by him (Caspar) from that time (June, 1863).

Instructions for plaintiff:

1. Plaintiff asks the court to declare the law governing the case to be that when there is a written subsisting lease between the parties for a term of years, a written notice to quit, or a written offer to surrender the premises at a future time, and before the expiration of such time, and a delivery of the keys to the premises by the lessee to the lessor at the time mentioned in such notice, or offer, do not of themselves operate as a surrender of the lease by operation of law as against the lessor; that outside of these mere facts some prior, contemporaneous or subsequent agreement of the lessor must be shown indicatory of an intention on the lessor's part to discharge the lessee from the further payment of rent, or that such intention must at least be inferable from the lessor's conduct, in order to raise a conclusive presumption of surrender in law.

2. The court, of its own motion, declares the law to be, that no surrender by act or operation of law of a lease can take place without the intention of the parties, actual or implied, except in cases where the owner of a particular estate does an act, the validity of which he is afterward estopped from disputing, and which could not have been done if the particular estate continued to exist. That the granting of a new lease by the lessor to the lessee, to commence during the period covered by the old lease, or the accepting of the keys by the lessor from the lessee, coupled with his taking possession of the premises, or letting them to another tenant, is such an act. That, however, when the evidence shows the following facts, to-wit: that A. holding certain premises, under a written lease for a period of three years from B., at the expiration of the first year (first having given to B. written notice of his intention to surrender at that time) removed from and sent through his agent the keys of the premises to B.'s place of business, where they were left with B. or his agent; and that B., after a lapse of over one year from that period, delivered the keys to C., a stranger, who demanded them of him, B. remarking to C., at the time that he had no authority to let the premises to him,--it fails to show such act on the part of B. (the lessor) as would estop him from denying any surrender, or such acts as would show any intention on the part of B. to treat the lease as surrendered, or from which any intention could reasonably be presumed.

3. And the court, sitting as a jury, refuses to presume a surrender, by act or operation of law, having taken place either at the time when the lessee quit the premises and left the keys with the landlord, or at the time when the landlord delivered them to C., although C. went into possession and occupied the premises free of rent until the expiration of the term of three years granted by B. to A.

Defendant's instructions, refused:

1. If the court, sitting as a jury, find from the evidence...