Livermore v. James H. Eddy's Adm'r
| Decision Date | 31 March 1863 |
| Parties | LIVERMORE AND COOLEY, Appellants, v. JAMES H. EDDY'S ADMINISTRATOR, MANLIUS BRANHAM, Respondent. |
| Court | Missouri Supreme Court |
Appeal from St. Louis Land Court.
Bland and Colman, for appellants.
I. The court erred in admitting the deposition of Voorhis. The 28th section of the act concerning depositions (R. C. 1855, p. 658) specifies the cases in which depositions may be read and used in evidence, and in no other cases may they be so read and used.
The first case provided for in this act is that where “the witness resides or is gone out of this State,” and the defendant read from the deposition itself, without any other proof to establish the fact, that deponent had gone out of this State. Now we say, 1. It was not competent to establish such fact by the deposition itself, because the fact must first be made to appear to the court by some competent evidence before the deposition can have competency, or can be read or used as evidence in the cause for any purpose whatever. (Grinnan v. Mockbee, 29 Mo. 345.)
2. Even assuming that a fact required by the statute to be established by the deposition itself--yet the statement in the deposition by the witness, to wit, “I start this evening for Salt Lake City, in Utah Territory, and shall be absent for a year or more,” does not by any means establish the fact that at the time of the trial he resided or had gone out of the State. (Gaul v. Grenger, 19 Mo. 541.)
II. The court erred in giving the second of said instructions. To constitute a surrender by operation of law, the landlord must not only accept it with the purpose of holding it, but of holding it discharged of the tenancy. (Kerr v. Clark, 19 Mo. 132.) The removal of a tenant and giving the key to the landlord does not amount to a surrender. (Prentiss v. Warne, 10 Mo. 601.)
Lackland, Cline & Jamison, for respondent.
I. There was error in the court below in giving instructions to the jury, because they were legal and proper and applicable to the case.
A surrender of the leased premises and acceptance thereof before the end of the term discharges the tenant from the payment of rent.
II. The court did not err in admitting in evidence the deposition of Voorhis, because there was sufficient evidence, besides the deposition, of a surrender and acceptance of the leased premises, which was the whole matter in controversy. With regard to the deposition of Voorhis, in the case cited (19 Mo. 541), the deponent stated that he started for Europe on the morrow, but did not state how long it would take him to go, nor how long he would be absent. Voorhis, however, deposes that he is going to a far off country and will be absent a year or more. It is the fact that he will remain absent that admits the deposition.
This was a suit by the appellants against Eddy to recover the rent of a dwelling-house in the city of St. Louis, for the month of May, 1855. There being a verdict and judgment for the defendant, the plaintiffs appealed to this court.
On the trial it appeared that Eddy had occupied the house as tenant of the appellants from the first of April, 1852, till the 3d of May, 1855, at an annual rent of five hundred and fifty dollars, payable monthly, at the end of each month; and that on the last named day he paid to the appellants' collector the rent for the month of April, and offered to pay for the three days in May, but the collector refused to receive it. On the same day Eddy vacated the house and sent the key to Livermore's residence, where it was delivered to a domestic. In a day or two afterwards Eddy caused a tender of the three days' rent to be made to Mr. Livermore in person, which was refused, Livermore insisting upon his right to rent for the entire month. It also appeared that persons were seen making repairs about the house at some time during the month of May, after Eddy's removal, but there was nothing tending to show that the house was occupied by any...
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