Leggett v. Louisiana Purchase Exposition Co.

• Decision Date: 02 May 1911
• Citation: 137 S.W. 893,157 Mo. App. 108
• Parties: LEGGETT v. LOUISIANA PURCHASE EXPOSITION CO.
• Court: Missouri Court of Appeals

137 S.W. 893

157 Mo. App. 108

LEGGETT v. LOUISIANA PURCHASE EXPOSITION CO.

St. Louis Court of Appeals. Missouri.

May 2, 1911.

Rehearing Denied June 6, 1911.

1. LANDLORD AND TENANT (§ 90)—HOLDING OVER AFTER EXPIRATION OF TERM—TENANCY CREATED.

Where a tenant holds over after the end of his term, the common law presumes an intention to continue the tenancy for a similar term and on the same conditions as to rental stipulated in the lease, and all that is necessary to complete the contract for such new term is the acquiescence of the landlord.

2. LANDLORD AND TENANT (§ 90)—HOLDING OVER AFTER EXPIRATION OF TERM — NEGOTIATIONS FOR NEW LEASE—EFFECT.

Where landlord and tenant are negotiating for a new lease at the time of the expiration of the original lease, and the tenant remains in possession pending the negotiations, with the express or tacit consent of the landlord, the landlord is estopped from treating the tenant as holding over for another term on the conditions prescribed in the original lease, but the tenant becomes a tenant at will.

3. EVIDENCE (§ 122) — RES GESTÆ — STATEMENTS DURING NEGOTIATIONS.

Where, in an action for rent based on the theory that by the tenant holding over a new term was created of the same length as in the original lease and for the same rental, the uncontradicted evidence showed that negotiations were pending in good faith for a new lease before the term expired and that such negotiations continued until 19 days thereafter, evidence of letters from the secretary of the tenant to its agent occupying the leased premises, pertaining to the proposed new lease, submitted by the landlord before the expiration of the original lease, and of conversations between the president of the tenant and its secretary pertaining to the new lease and what instructions should be communicated to its agent concerning it, was properly received as a part of the res gestæ to prove its good faith in negotiating for a new lease so as to be relieved from the liability of a lease created by holding over.

4. EVIDENCE (§ 108) — INTENTION — RELEVANCY.

Where a matter turns on a question of intention, it is usually relevant to show the situation at the time to reach the truth as to the intention.

5. LANDLORD AND TENANT (§ 109)—SURRENDER—ACTS CONSTITUTING.

To constitute a surrender by a tenant to his landlord, the landlord must take possession of the premises, with the intent of releasing the tenant from further payment of rent.

6. TRIAL (§ 260) — INSTRUCTIONS — REFUSAL TO GIVE INSTRUCTIONS COVERED BY THE CHARGE GIVEN.

It is not error to refuse instructions substantially covered by the charge given.

7. TRIAL (§ 186)—INSTRUCTIONS—COMMENT ON EVIDENCE.

A requested charge containing an unwarranted comment on the evidence is properly refused.

Appeal from St. Louis Circuit Court; George H. Williams, Judge.

Action by Bessie McLeod Leggett against the Louisiana Purchase Exposition Company. From a judgment for defendant, plaintiff appeals. Affirmed.

R. L. McLaran and Wm. K. Koerner, for appellant. Ferriss, Zumbalen & Ferriss, for respondent.

NORTONI, J.

This is a suit for an installment of rent. The finding and judgment were for defendant, and plaintiff prosecutes the appeal.

It appears that defendant leased from plaintiff certain premises numbered 21-23 West Thirty-Fourth street, in New York City, for occupancy as its Eastern office on January 1, 1903. The lease was in writing for a nine months' term at the stipulated rental of $3,000 per year, payable in quarterly installments of $750 each in advance. Under the terms of the lease, the tenancy expired September 30, 1903. The premises were occupied by defendant through one McGibbons, its New York agent, who had charge of certain matters pertaining to soliciting exhibits, etc., for the World's Fair to be held in St. Louis in 1904. Some time in July, 1903, plaintiff's agent, one Ashforth, interviewed McGibbons with respect to renewing the lease, and McGibbons advised him that he was not authorized to speak on the subject, but would submit the matter to the officers of the Louisiana Purchase Exposition Company at St. Louis. In compliance with this promise, McGibbons wrote the secretary of defendant exposition company to the effect that plaintiff's agent desired to know the attitude of the company with respect to renewing the lease of the premises, and no definite answer was received. But it appears that finally defendant, through its secretary, instructed McGibbons to try to see if a new lease could be obtained for a period of six months, and this proposition was submitted to plaintiff's agent, Ashforth. Plaintiff, the owner of the premises, was in Europe, and considerable time was consumed in communicating with her about the matter. Plaintiff did not accept the proposition for a renewal of the lease for six months, but afterwards, on about September 8th or 9th, Ashforth, her agent, submitted to McGibbons, defendant's New York agent, a written lease stipulating a tenancy for seven months from September 30, 1903, at the same rate of rental per month as that stipulated for in the former indenture. McGibbons forthwith transmitted the unsigned written lease to defendant's secretary, Mr. Walter B. Stevens, in St. Louis for the consideration of the company, and it appears that, though he received it in due time, it was not immediately accepted. While the matter thus obtained, the prior lease expired on September 30th, and defendant continued in possession of the premises without further communication with plaintiff's agent, Ashforth, until October 19th. It appears that on October 19th plaintiff's agent, Ashforth, spoke to McGibbons about the matter, inquired if defendant's president, Governor Francis, had signed and returned the lease, and was informed that he had not. Upon being so informed, Ashforth said to McGibbons that under the law of New York, unless a lease is signed, the tenant becomes liable for a year's rental, but in this case such would be waived if he got the lease signed. The lease was never signed nor returned to McGibbons, and on November 17th defendant notified him that it would close its New York office on December 31st of that year. Immediately on receiving this information, McGibbons notified plaintiff's agent, Ashforth, that defendant would surrender the premises on that day. Afterwards, December 31st, defendant vacated the premises and returned the keys therefor to plaintiff's agent by depositing them in a box at his office, as the office was closed at the time. There is no controversy, however, over the fact that plaintiff's agent did not object to receiving the keys. Defendant paid the rent for the months of October, November, and until December 31, 1903, but declined to pay rent thereafter. And it is said plaintiff received no rent from any source therefor until from and after the 1st day of July, 1904.

This suit proceeds for $750, said to have accrued under the common-law rule with respect to the last quarter as though a new lease had been entered into because of defendant's holding over. The $750 involved pertains to the last quarter, commencing April 1, 1904, and ending July 1st of the same year, as if a new lease were executed between the parties for nine months under the identical terms and provisions as contained in the prior one. Another suit, it is said, is pending in New York for the second quarter on the same theory.

At common law, if a tenant holds...