Leggett v. Louisiana Purchase Exposition Company
| Decision Date | 02 May 1911 |
| Parties | BESSIE McLEOD LEGGETT, Appellant, v. LOUISIANA PURCHASE EXPOSITION COMPANY, Respondent |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. George H. Williams Judge.
Judgment affirmed.
Robert L. McLaren for appellant.
(1) This case is governed by the law of New York, inasmuch as the property here involved is situated in that state, and the contract was both made and to be performed therein. Richardson v. De Giverville, 107 Mo. 422; Stix v. Matthews, 63 Mo. 371; Parks v. Ins. Co., 26 Mo.App. 511; Roach v. Type Foundry, 21 Mo.App. 1. (2) The common law is presumed to prevail in the state of New York. Edwards Brokerage Co. v. Stevenson, 160 Mo. 516; Sears v. Lum, 81 Mo.App. 607. (3) By the common law a landlord may, at his option, regard the act of the tenant in holding over, either as a trespass, or as a renewal of the original lease. Quinette v Carpenter, 35 Mo. 502; Finney v. St. Louis, 39 Mo. 178; Hunt v. Bailey, 39 Mo. 257; Insurance Co. v. Bank, 71 Mo. 58; Lewis v. Perry, 149 Mo 257; Chaplin on Landlord and Tenant, 257; Taylor on Landlord and Tenant (9 Ed.), 29, sec. 22; 18 Am. and Eng. Ency. of Law, 405. (4) The defense of "pending negotiations" rests upon the doctrine of estoppel. Jones on Landlord and Tenant, sec. 210. (5) Instruction No. 1 of the given instructions, given by the court, of its own motion, is erroneous for the reason that it tells the jury that they should determine whether or not negotiations were pending between plaintiff and defendant (the crucial point in the case), from defendant's secret acts and intentions which were not disclosed to plaintiff. Secret acts or intentions on the part of defendant, uncommunicated to plaintiff, could not have kept alive plaintiff's offer of a new lease, or continued this status of "pending negotiations." Lungstrass v. German Ins. Co., 48 Mo. 201; Cangas v. Rumsey Mfg. Co., 37 Mo.App. 297; Haubelt v. Mill Co., 77 Mo.App. 672; Arnold v. Casm, 95 Mo.App. 426. (6) The fact that this instruction substantially follows the language used by the court in its opinion on a previous appeal, does not necessarily make the instruction proper. The decision of the court on a previous appeal will not be permitted to stand as the law of the case where clearly erroneous. Chamber's Admr. v. Smith's Admr., 30 Mo. 156; Hamilton v. Marks, 63 Mo. 167; Bealey v. Smith, 158 Mo. 512. Furthermore, the language of this previous opinion is difficult of construction, and instructions should be couched in plain, simple language, which the average juryman can understand. State v. Darling, 202 Mo. 150; Stanley v. Union Depot R. Co., 114 Mo. 606; State v. Pettit, 119 Mo. 410; Knapp v. Hanley, 132 S.W. 745. (7) It was error to admit in evidence the letters between defendant and Mr. McGibbons, and the conversation between Mr. Stevens and Mr. Francis. This evidence merely tended to show defendant's secret and undisclosed intention, which was immaterial. Authorities under No. 1 supra. (8) Number 5 of the refused instructions offered by plaintiff should have been given. It correctly states plaintiff's theory of the case with reference to defendant's second defense. Leggett v. Louisiana Purchase Exposition Co., 134 Mo.App. 175. And the refusal of this instruction is not cured by the giving of number 2 of the given instructions which covers the same ground in a general way. A party is entitled to a direct and positive instruction on his theory of the case. Cohn v. Reid, 18 Mo.App. 115; Bruce v. Wolfe, 102 Mo.App. 384; American Harwood L. Co. v. Dent, 121 Mo.App. 108; Wren v. Street Ry., 125 Mo.App. 604.
Ferriss, Zumbalen and Ferriss for respondent.
(1) The common rule invoked by plaintiff in this case is a strict one, applicable only where the holding over is a wrongful one, in which event the landlord has the option to treat the tenant so holding over either as a trespasser or as a tenant for a term of similar duration. Therefore consent by the landlord to the holding over, or an election by him to treat the tenant in some other capacity, would prevent the landlord from subsequently holding the tenant for another term of similar duration. Jones on Landlord and Tenant, sec. 210, 24 Cyc. pp. 1012-1013; 18 Am. and Eng. Ency., pp. 404, 407, sec. 3; Leggett v. La. Pur. Ex. Co., 134 Mo.App. 175. (2) If the landlord consents to the tenant remaining in possession after the expiration of a lease pending negotiations for a new lease, the tenant becomes a tenant at will. Jones on Landlord and Tenant, sec. 212; 18 Am. and Eng. Ency., p. 184, sec. 5; Leggett v. La. Pur. Ex. Co., 134 Mo.App. 175. (3) Instruction No. 1 of the given instructions, given by the court of its own motion, correctly defines the issue of pending negotiations as laid down in the opinion of this court in 134 Mo.App. 175. Said instruction is neither ambiguous nor confusing. It follows the law as announced in the last decision of this case, and that decision is correct. The prior decision of the court is binding on the circuit court and should be followed on the next appeal. May v. Crawford, 150 Mo. 525; Reilly v. Sherwood, 155 Mo. 37; Winter v. Supreme Lodge, 101 Mo.App. 550. (4) The letters between McGibbons and the secretary of defendant, as well as the conversation between the secretary and the president, were properly admitted in evidence. They were not offered to prove that plaintiff still held her offer open after October 1, but to prove that defendant had not rejected it prior to that date, but still held it under consideration. (5) The failure to give instruction No. 5 of refused instructions, offered by plaintiff, was not error, as the law was declared in exactly the same way in No. 2 of the given instructions. Flaherty v. Transit Co., 207 Mo. 318; Cytron v. Transit Co., 205 Mo. 692.
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 $ 3000 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, defendant'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...
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