McManus v. Adams

• Decision Date: 08 April 1919
• Docket Number: 15392
• Citation: 211 S.W. 908
• Parties: McMANUS v. ADAMS
• Court: Missouri Court of Appeals

211 S.W. 908

McMANUS v. ADAMS

No. 15392

Court of Appeals of Missouri, St. Louis

April 8, 1919

NOT TO BE OFFICIALLY PUBLISHED.

Appeal from St. Louis Circuit Court; Rhodes E. Cave, Judge. Action by Thomas Ward McManus against Bart S. Adams. From an order overruling plaintiff's motion to set aside a nonsuit plaintiff appeals.

Affirmed.

D.D Holmes, of St. Louis, for appellant.

Judson Green & Henry, of St. Louis, for respondent.

BECKER, J. REYNOLDS, P. J., and ALLEN, J., concur.

OPINION

BECKER, J.

This is a suit for double rent under § 7877, Revised Statutes of Missouri 1909. At the close of plaintiff's case the court gave a peremptory instruction for the defendant, and plaintiff took a nonsuit with leave, and plaintiff appeals from the order overruling his motion to set aside said nonsuit.

Defendant Adams, served with written notice on July 31, 1915, upon plaintiff's agent of his intention to vacate, and in accordance therewith did move out of the premises and surrendered the keys to plaintiff's agent on August 31, 1915. However, defendant left in the building a boiler five feet in height and two or three feet in diameter, some 15 or 20 boards, and there were also annexed to the premises two small frame lean-tos which defendant had erected during his tenancy. The plaintiff upon inspection, besides finding the above-described property on the premises, found that certain partitions had been built by defendant which he had not removed, and that certain other changes and repairs were necessary to restore the building to its original condition as it was when taken over by defendant. Under the terms of the lease defendant was to deliver up the possession of said premises "in as good order and condition in every respect as the same are now or may hereafter be made by repairs, save only the wear thereof from reasonable and careful use."

Plaintiff, after his inspection of the building, returned the keys to the defendant, and, after representatives for plaintiff and for defendant had agreed on what repairs and alterations were required, such repairs and alterations were made, and the boiler, boards, etc., that had been left on the premises, were removed on the demand of the plaintiff by the defendant, at defendant's expense. The carpenter who made the alterations and repairs completed the last of the work and returned the keys to plaintiff's agent on September 21, 1915, being 21 days after the date on which defendant had served notice that he would vacate.

Section 7877, Revised Statutes of Missouri 1909, provides that--

"If any tenant shall give notice in writing of his intention to quit the premises held by him, at a time specified in such notice, and shall not deliver up the possession thereof at such time, such tenant, his executors or administrators, shall from thenceforward pay to the landlord, his heirs or assigns, double the rent reserved during all the time such tenant shall so continue in possession.

This statute is penal in its nature, and must be strictly construed. Pitkin v. Lloyd, 47 Mo.App. 280. A statute of this character, penal in its...