McDonald v. May

• Decision Date: 07 October 1902
• Parties: JESSE A. McDONALD, Trustee, Respondent, v. M. M. MAY, Appellant
• Court: Missouri Court of Appeals

69 S.W. 1059

96 Mo.App. 236

JESSE A. McDONALD, Trustee, Respondent, v. M. M. MAY, Appellant

Court of Appeals of Missouri, St. Louis

October 7, 1902

Appeal from St. Louis City Circuit Court.--Hon. Walter B. Douglas Judge.

AFFIRMED.

STATEMENT OF THE CASE.

A corporation, known as the Empire Building Company, let certain premises in the city of St. Louis to another corporation, the Sanford Building Company, for ninety-nine years, on the first day of January, 1895. The Sanford Building Company sublet the premises to appellant May for eighteen months from the first day of June, 1899, and it is admitted May occupied them and paid rent until December 1899, the rent after September of that year being paid to respondent McDonald or his agent. About the middle of November, 1899, May sold his business and fixtures to Weatherby & Zeltner and notified McDonald's agent Stevenson, that Weatherby & Zeltner had taken possession of the premises; Stevenson made no objection. The firm paid the December rent by check drawn in favor of May, but delivered to Stevenson and indorsed by him in May's name without previous authority, although he claims he afterwards told May about it, who denies that he did.

Weatherby & Zeltner moved out in January, 1900. No rent was paid afterwards except by certain other tenants, who occupied the premises a short time, and this action was instituted to collect the rent from May for the portion of his term under the lease made to him by the Sanford Building Company for which no rent has been paid.

There is an acute conflict of testimony as to whether May surrendered the premises to McDonald when he sold to Weatherby & Zeltner, and McDonald through his agent Stevenson accepted the surrender and recognized that firm as McDonald's tenants, or whether they occupied as May's tenants.

Stevenson rented the premises afterwards to two other tenants and collected some rent directly from them for which May was given credit on account. May claims that McDonald took the keys when Weatherby & Zeltner went in and always kept them and hunted tenants thereafter. But Stevenson claims that May merely left the keys with him for convenience and that he was trying to get new tenants for May and for the latter's benefit.

The circuit court found against the appellant on the issue of fact as to whether there was a surrender of the premises to McDonald, and that finding settles the matter.

McDonald's interest in the premises came about in this way: the original owner and lessor, the Empire Building Company, conveyed the premises by warranty deed acknowledged on the fifth day of September, 1899, to the Howard Realty Company, and on the same day the last-named company conveyed them by deed of trust to McDonald as trustee. On the same day, too, a contract was made between the first lessee, the Sanford Building Company and its lessor the Empire Building Company, which witnessed among other things the following:

"That in consideration of one dollar to the said Empire Building Company, paid by the Sanford Building Company, the receipt whereof is hereby acknowledged, the said Empire Building Company does hereby release and discharge the said Sanford Building Company from any and all obligation to continue and carry out a certain lease made by the said Empire Building Company, lessor, to said Sanford Building Company, lessee of date December 26, 1894, by which lease said Empire Building Company did lease to the said Sanford Building Company for a term of ninety-nine years the following described property." . . .

"The said Sanford Building Company, in consideration of the fact that it has been unable to pay the rents and taxes on the said property in said lease stipulated, and is now in arrears for the rent from January 1, 1899, desirous of escaping any further liability under said lease, does hereby release and discharge the said Empire Building Company from any and all obligations to carry out the terms of said lease, and the said lease is hereby cancelled by mutual consent of the lessor and lessee and full and complete possession of all said property is hereby given to the lessor."

The first (A) of the following declarations was given at respondent's request; the next three were asked by appellant and refused, and the fourth was given. They will show the theory on which the case was decided:

"A. The court declares the law to be that by the contract between the Sanford Building Company and the Empire Building Company, the latter succeeded to all the former's rights under its sublease to defendant.

"1. The court declares the law to be that if the court believes that the Sanford Building Company held the property in question as lessee under a lease from the Empire Building Company and that while holding the property in question under such lease the Sanford Building Company rented the premises, for the rent of which this suit is brought, to defendant, and if the court further believes that by an instrument in writing the contract or lease between the Empire Building Company and the Sanford Building Company was cancelled, and that there was no assignment by said Sanford Building Company to the Empire Building Company, or the plaintiff in this case, of its contract with defendant, then there was no privity of contract between the defendant and the plaintiff, and that defendant is not liable to the plaintiff as lessee under the terms of said lease, and the court will find for defendant.

"2. The court declares the law to be that the cancellation of the contract of lease between the Empire Building Company and the Sanford Building Company as a necessary consequence cancelled the lease from the Sanford Building Company to the defendant.

"3. If the court believes from the evidence that defendant May, on or before the first day of December, 1899, turned over the possession of the premises involved to another party who occupied them with the knowledge and consent of the Howard Realty Company and plaintiff, and that plaintiff accepted rent from said other party for the month of December, 1899, then the court will find that by such acts the term of defendant was surrendered and defendant was no longer bound as tenant of the premises and the court will find for defendant.

"4. If the court believes from the evidence that defendant, or the party to whom he turned over possession of the premises, surrendered the key to said premises to plaintiff or his representative, and that such surrender was accepted and said plaintiff or his representative rented or attempted to rent said premises to other parties, then the court will find that such surrender and acceptance terminated defendant's tenancy, and will find for defendant."

Judgment affirmed.

Henry M. Post for appellant.

(1) The principle governing the case is stated broadly in 18 Am. and Eng. Enc. of Law, at page 296, in this language: "A surrender by the original lessee can not defeat the interest of a subtenant. And it would seem that, in such a case, in the absence of express statutory provisions, the subtenant would be released from all liability for rent during his term, either to the original lessor or to the original lessee (the lessor of the subtenant), since, the rent being an incident of the reversion, the original lessee could not recover it, having parted with his reversion, and the original lessor could not recover it because on the surrender of the lease the reversion which was in the lessee merged in the greater reversion of which the lessor was already possessed." "A surrender is never allowed to operate injuriously to the rights of third parties; and, therefore, a tenant can not, by a surrender of his lease to his landlord, affect the estate or rights of his underlessee. Shep. Touch., 301; McKenzie v. Lexington, 4 Dana, R. 129. But although a tenant who has made an underlease can not by a surrender prejudice his tenant's interest, yet he will himself lose the rent he has reserved upon the underlease; for since rent is an incident to the reversion, the surrenderer can not collect it, because he has parted with his reversion to the lessor; nor can the surrenderee have it, because, although the reversion to which it was incident has been conveyed to him, yet, as soon as it was so conveyed, it merged in the greater reversion of which he was already possessed, and the consequence is that the underlessee holds without the payment of any rent; except where the contrary has been expressly provided by the statute. " Smith's Land. and Tenant, 232. (2) If defendant occupied the premises after September 1, 1899, since his contract of lease has been "cancelled," he became only a tenant at will, or, at best, from month to month, and the admission of another tenant and acceptance of rent from him was an acceptance of surrender of the premises and release of defendant from further liability. (3) The evidence shows that defendant vacated the premises, and that another party was put in possession and accepted as a tenant and paid rent for the month of December. This relieved defendant of any further liability. Jones v. Barnes, 45 Mo.App. 592-3; Buck v. Lewis, 46 Mo.App. 231-2; Matthews v. Tebener, 39 Mo. 115; Hutchison v. Jones, 79 Mo. 496; Taylor, Land. and Ten. (4 Ed.), 516

Clinton L. Caldwell for respondent.

(1) The doctrine asserted by counsel for appellant as being a part of the common law, and as such binding upon this court, is uniformly stated in the authorities cited by him, viz.: Since the rent is an incident of the reversion, the surrenderer can not collect it, having parted with his reversion: nor can the surrenderee have it because the reversion to which it is incident, upon the surrender, is merged in the greater reversion of which he is already possessed, and the...