Mitchell v. Blossom

• Decision Date: 04 January 1887
• Citation: 24 Mo.App. 48
• Parties: WILLIAM MITCHELL ET AL., Appellants, v. H. M. BLOSSOM ET AL., Respondents.
• Court: Missouri Court of Appeals

24 Mo.App. 48

WILLIAM MITCHELL ET AL., Appellants,

v.H. M. BLOSSOM ET AL., Respondents.

St. Louis Court of Appeals, Missouri.

Jan. 4, 1887.

APPEAL from the St. Louis Circuit Court, SHEPARD BARCLAY, Judge.

Affirmed.

W. C. MARSHALL, for the appellants: The mere removal of a tenant from the premises does not constitute a surrender. Prentiss v. Ware, 10 Mo. 601; Kerr v. Clark, 19 Mo. 132; Livermore v. Eddy, 33 Mo. 547; Destrehan v. Scudder, 11 Mo. 484; Schuyler v. Smith, 51 N. Y. 309; Bacon v. Brown, 9 Conn. 334; Hemphill v. Flynn, 2 Pa. St. 144.

DYER, LEE & ELLIS, for the respondent.

ROMBAUER, J., delivered the opinion of the court.

This is an action for the recovery of rent. Judgment was rendered in favor of the defendant by the justice before whom the suit was originally tried, and also in the circuit court, where the cause was tried on appeal. The plaintiffs appealing from this judgment assign for error that, the court admitted incompetent testimony; that it refused legal instructions asked by the plaintiff, and gave erroneous instructions for the defendants, and of its own motion.

The defendants were lessees of the plaintiffs, under a written lease, for a term of years, expiring on the first day of October, 1885, at noon, of an office or bank room, at a yearly rent of two thousand dollars, payable in monthly installments of $166.66, in advance, during every month of the term. The lease provided, among other things, that, in case the leased premises shall be vacated, the lessors should have the right to re-enter the same by force or otherwise, without being liable to any prosecution therefor. Also, that the lessees would quit and surrender said premises at the end of the term. Also, that the lessees had the option to re-lease the premises after the expiration of the term, for three years more, at a rental not exceeding two thousand four hundred dollars per annum.

The plaintiffs gave evidence tending to show that on October 1, 1885, at noon, their agent was on the premises, ready to receive possession, and that he called twice more during the same day; that he found the premises locked; that none of the defendants were present, and that he subsequently demanded the rent for October, which the defendants refused to pay.

The defendants gave evidence, against the plaintiffs' objection, tending to show that they moved all their remaining effects from the premises, September 30, to their new office just across the street; that the plaintiffs' porter in charge of the building, for some purposes, was present when this was done; that they left all the keys which they had received from the plaintiffs in the doors, and left the doors unlocked. The defendants admitted that none of them were present on the premises, October 1, 1885.

At the close of the evidence the court instructed the jury, in substance, that if the defendants moved out of the premises, prior to the expiration of the term, locked the doors and kept the keys, and did not attend on October 1, when the plaintiffs' agent called to receive a surrender, the plaintiffs were entitled to recover, but if the jury found that the defendants' version of the transaction was the true one, then the defendants were entitled to a verdict.

We see no contradiction in these instructions, nor can we see wherein the law thus declared, under the facts of the case, was erroneous or prejudicial to the plaintiffs. Either the liability of the defendants was fixed by the contract, and an intention impliable from their conduct to continue the tenancy during the month of October, or such liability on their part became fixed by the fact that owing to their conduct they were...