Long v. Rucker

• Decision Date: 17 June 1912
• Citation: 149 S.W. 1051,166 Mo. App. 572
• Parties: LONG et al. v. RUCKER et al.
• Court: Missouri Court of Appeals

149 S.W. 1051

166 Mo. App. 572

LONG et al. v. RUCKER et al.

Kansas City Court of Appeals. Missouri.

June 17, 1912.

Rehearing Denied October 7, 1912.

1. LIBEL AND SLANDER (§ 137)—SLANDER OF TITLE—RIGHT OF ACTION.

One having an estate or interest in land as a tenant has a cause of action against any one, as his landlord, who falsely and maliciously denies or defames his title, and thereby inflicts pecuniary damages on him.

2. LIBEL AND SLANDER (§ 139)—SLANDER OF TITLE—PLEADING AND PROOF.

Plaintiff in an action for slander of title has the burden of pleading and proving the words were false, maliciously uttered, and resulted in pecuniary loss to him.

3. LIBEL AND SLANDER (§ 139)—SLANDER OF TITLE—MALICE—EVIDENCE.

That malicious intent, which plaintiff in action for slander of title must show, may be inferred. his evidence must support a reasonable inference that defendant's representation, not only was without legal justification or excuse, but also was not innocently or ignorantly made; but such inference may rest on circumstantial evidence, and proof of a lack of probable cause will support the inference that the representation was not innocently made out of stupidity or ignorance, but was known to be false.

4. LANDLORD AND TENANT (§ 79)—ASSIGNMENT OF LEASE—RELATION OF ASSIGNEE TO LESSOR.

Lessees in a written lease having transferred their interests therein to plaintiffs, and defendants, the lessors, having consented to the transfer, and required plaintiffs to sign a written acceptance thereof, indorsed on it, and it having still a year to run, they were tenants of defendants under the lease.

5. LANDLORD AND TENANT (§ 75)—LEASES—RIGHT TO ASSIGN.

Rev. St. 1909, § 7880, providing no tenant for a term not exceeding two years shall assign his term or interest without the written assent of the landlord, has no application where a lease was for five years, and, after expiration of more than three years thereof, the lessees transferred their interests in it to plaintiffs with the consent of defendants, the lessors, though defendants then required plaintiffs to indorse thereon their acceptance of it, and that they would be responsible for its continuance till the end of the five years, this not constituting a new letting or tenancy; so that, the lease not forbidding it, plaintiffs could sell and assign it.

6. LANDLORD AND TENANT (§ 1041—LEASES —FORFEITURE.

Even though a lease be one which Rev. St. 1909, § 7880, prohibits the lessees assigning without the written assent of the lessors, their mere agreement to assign it and surrender possession to the assignee at some future time will not work a forfeiture of it as long as they remain in possession as lessees.

7. LANDLORD AND TENANT (§ 108)—LEASE —FORFEITURE—DEFAULT IN RENT.

A lease is not forfeited by mere default of the tenant in payment of rent; this merely giving the landlord right to a summary proceeding, in which, under Rev. St. 1909, § 7906, judgment will be for the tenant, if before the hearing he has paid the rent.

8. LIBEL AND SLANDER (§ 139)—SLANDER OF TITLE—SPECIAL DAMAGES—EVIDENCE.

Evidence in an action for slander of title held to tend to show special damages were suffered as a direct consequence of defendants' representations.

9. LIBEL AND SLANDER (§ 139)—SLANDER OF TITLE—EXEMPLARY DAMAGES.

Exemplary damages may be awarded for slander of title.

Appeal from Circuit Court, Boone County; David H. Harris, Judge.

Action by Jackson A. Long and another against Fannie H. Rucker and another. Judgment for defendants, and plaintiffs appeal. Reversed and remanded.

Harris & Finley and Charles J. Walker, all of Columbia, for appellants. W. M. Williams, of Boonville, C. D. Corum, of St. Louis and E. W. Hinton, of Columbia, for respondents.

JOHNSON, J.

This is an action for slander of title to real estate. At the close of plaintiffs' evidence the court gave a peremptory instruction to the jury to return a verdict for defendants, whereupon plaintiffs took an involuntary nonsuit with leave, and in due course of procedure brought the case here by appeal.

The evidence of plaintiffs discloses the following state of facts: The defendants W. H. Rucker and Fannie H. Rucker are husband and wife. Mrs. Rucker is the owner of a business house in Columbia, and her husband was her agent in the transaction of business relating to the property. In April, 1906, Mrs. Rucker entered into a written contract of lease with Naysmith & Heiberger, by the terms of which she leased the property to them for a term of five years from April 1, 1906, at a monthly rental of $65 payable in advance. The lease contained no provision relating to subletting or to its assignment by the lessees, but did provide that, "in case said Rucker (lessor) shall desire to sell the property, the second party (lessees) shall have the option to buy at the sale price or to surrender possession after thirty days written notice to vacate premises." The lessees went into possession of the house under this lease, and conducted a bakery and confectionery therein until July 5, 1907, when Naysmith sold his interest in the business and in the lease to plaintiff J. A. Long, and thereafter the business was continued by Long & Heiberger until March 30, 1909, when Heiberger sold his interest to plaintiff Clarence A. P. Long, the son of J. A. Long. Thereafter the business was conducted by plaintiffs under the firm name of Long & Son. The firm of Long & Heiberger occupied the building as the tenants of Mrs. Rucker under the terms of the lease. Shortly after Clarence Long bought the interest of Heiberger, Mrs. Rucker called on plaintiffs, and requested them to sign a written acceptance of the lease. Plaintiffs consented, and signed the following agreement written on the lease: "We the undersigned agree to the above contract and will be responsible for a continuance of the same until it expires April 1, 1911." The date of this indorsement is not shown, but the parties concede it was within two years preceding April 1, 1911, the date of the expiration of the lease. Plaintiffs continued in the possession of the building until March 10, 1910, and paid the rent to the 1st of that month. Neither they nor their predecessors paid the rent promptly, but defendant made no complaint, and accepted the delayed payments as a sufficient performance of the contract. Plaintiffs became embarrassed in their pecuniary affairs. They owed a number of debts, including one of $1,500, to Mr. Price, a banker, but their assets exceeded their liabilities. They endeavored to sell the business and eventually found a purchaser with whom, on March 19, 1910, they entered into an agreement to sell their stock and the unexpired leasehold for $4,200. The purchaser found it necessary to borrow part of the funds required to pay the purchase price, and Mr. Price agreed to lend him the sum he needed. Defendants heard of the proposed sale, and, finding a tenant who was willing to rent the building at $100 per month, Mrs. Rucker entered into a contract of lease with him. Before this was done, defendant W. H. Rucker who, as stated, was the agent of his wife, had a conversation with one of plaintiffs in which he said, "You tell Kistler [the purchaser of the stock] he had better see us before he buys that stuff;" and, in reply to plaintiffs' answer that they had a lease on the building that did not expire for a year, replied, "You tell him he had better see us."

After defendants leased the building to another tenant, W. H. Rucker called at the bank and had a conversation with Mr. Price. We quote the following from Price's testimony: "I telephoned Mr. Rucker that evening, and told him that the creditors felt it to their interest to get some one to purchase those assets In a similar line of business, and that I wanted to ask him not to do anything detrimental to the interests of the creditors, and he said he would come into the bank to see me Monday, and he said he would do nothing until he did come in and see me. That was over the telephone. I next saw him on Tuesday. He came into the bank. On Tuesday I told Mr. Rucker that there—that I was very much surprised to hear that he had leased the building to other parties, in fact, I had a good deal of doubt. I had heard it, but had a good deal of doubt that he had leased it, but he told me he had leased it to other parties, and I told him that the creditors of Long & Son would insist upon the continuance of the lease, and he said they had no lease whatever, and we talked about the matter, I think, for probably 30 minutes, and, as our interests clashed a little bit, he said, `I told him we were going to hold the building,' and he said anybody that went in there would have a fight, and then I remember he said, `Damn `em—he would show `em.' That was the last when I told him we would insist upon the lease. I think that was the last talk I had with Mr. Rucker about it. That was in the bank on Tuesday afternoon. I don't know whether I told him about the proposed sale to Kistler or not. I told him we were expecting to continue the unexpired lease, and I don't know whether I told him about Kistler or not, but possibly I did. When he said, `They have no lease whatever,' he was talking about the present tenants of the building, Long & Son. We didn't conclude this deal with Kistler because we would not furnish the money to Kistler to go there on a proposition where he was to be fought...