Mooers v. Martin

• Decision Date: 21 December 1886
• Parties: L. P. MOOERS, Appellant, v. CHARLES MARTIN, Respondent.
• Court: Missouri Court of Appeals

23 Mo.App. 654

L. P. MOOERS, Appellant,

v.CHARLES MARTIN, Respondent.

St. Louis Court of Appeals, Missouri.

Dec. 21, 1886.

APPEAL from the St. Louis Circuit Court, DANIEL DILLON, Judge.

Transferred to the Supreme Court.

BROADHEAD & HAEUSSLER, for the appellant: The plaintiff had a right to sue for each month's rent separately, as each constituted and was ground for a separate cause of action, after it was due and earned, but could not be recovered for as a money demand until earned, although payable in advance by terms of contract. Bridle v. Grau, 42 Mo. 359; Wagner v. Jacoby, 26 Mo. 532.

L. D. SEWARD, for the respondent: A suit for rent and possession must state all the rent due, and the cause of action can not be so divided as to support two actions for rent and possession. Wolff v. Shinkle, 4 Mo. App. 197; Vaughn v. Locke, 27 Mo. 292.

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

This is a proceeding under the landlord's and tenant's act for rent in arrear and restitution of premises. The complaint shows that the premises were rented for one hundred dollars per month, payable in advance on the first day of every month. The suit was commenced on October 21, 1885, and the demand is for the unpaid rents for the months of August and September. It appears that on the same day the plaintiff commenced a similar proceeding for the October rent, but this was afterwards dismissed in the circuit court. On the defendant's appeal from the justice, this cause was heard by the court without a jury, and judgment was given for the defendant. Uncontradicted testimony showed that the defendant had vacated the premises in controversy on December 12, 1885, before the trial of this cause in the circuit court, and that the plaintiff had since been in possession of the same. The court refused two instructions requested by the plaintiff, the substance of which was that, under the facts above recited, if the rent payable August 1, September 1, and October 1, had been demanded of the defendant by the plaintiff, and payment refused, the plaintiff could maintain this action for the rent, payable August 1 and September 1, and that it was no bar to her right of recovery that she did not set forth in her affidavit that the rent payable October 1 had been demanded and not paid.

In refusing these instructions, and in rendering judgment for the defendant upon the facts above set out, about which there was no controversy, the learned judge seems to have proceeded upon the case of Wolff v. Shinkle (4 Mo. App. 197), and kindred cases, which hold that, in a proceeding by landlord's summons under the statute, it is necessary for the plaintiff to demand and to state in his affidavit the exact amount due, in order that the tenant may prevent a forfeiture of the term by paying this amount. Vaughn v. Locke, 27 Mo. 292; Cook v. Decker, 63 Mo. 328. The statute in terms requires that the statement shall set forth “the amount of rent actually due.” Rev. Stat., sect. 3098. But neither the terms of the statute nor these decisions go so far as to oust the plaintiff of all remedy because, although he has demanded the actual amount of rent due, as the plaintiff did in this case, he has failed to state in his affidavit that rent was due for the month which had not expired at the time of the bringing of the action. While a party might justly be held, by not including all that is due to him on one account, in one action, to have waived the residue, and while the tenant, by tendering the two months' rent sued for in this action, would clearly have saved a forfeiture, yet we do not believe that there can be found in any civilized system of jurisprudence a principle so absurd as that the plaintiff is to be ousted of all remedy, whether in an ordinary proceeding, or in a proceeding to enforce a forfeiture, merely because he does not sue for all that is due him. Such a principle would turn the indulgence which a creditor might choose to extend to his debtor, into a sword to strike down the rights of the creditor. We do not believe that our supreme court intended so to decide, either in Vaughn v. Locke, or in Cook v. Decker ( supra). In Vaughn v. Locke, the defect in the statement was, that the landlord had demanded and was suing for more than was due; and in Cook v. Decker, the objection to the statement was, that the rent was payable in specific property (lead ore), and that it was not clear, from the statement, what was the amount due; and the court, while quoting the language of Judge Napton in Vaughn v. Locke, the substance of which was that the plaintiff must demand, in his affidavit, the amount really due, held that he had done so in the particular case. The language used by Judge Hayden in Wolff v. Shinkle ( supra), admits of the construction that if the landlord make the mistake of demanding and suing for a less amount of rent than is actually due, he thereby waives a forfeiture. The facts of that case did not necessarily call for a decision of that point; if they had done so, we would not hesitate to overrule that case on that point. As it is, we merely express our disapprobation of any language asserting that principle.

But we reaffirm the principle laid down in Wolff v. Shinkle, that by accepting payment of rent for periods of time subsequent to that for which the plaintiff brings the landlord's summons, he thereby waives the right to the summary remedy given by the statute, and the rent due for the preceding periods loses its distinctive character as rent and becomes a mere debt. We reaffirm the doctrine of Horn v. Peteler (16 Mo. App. 438), that the same effect follows where the landlord accepts the tenant's negotiable note for rent accruing at a date subsequent to that for which he brings his landlord's summons under the statute.

The only remaining question is whether, by reason of anything disclosed by the evidence, there has been such a waiver in this case. We can see no evidence tending to show such a waiver. The evidence shows that the plaintiff demanded all the rent due (including that for the month of October, payable on the first of the month, though not entirely earned), and that she brought a separate landlord's summons under the statute for the October rent. We can see in this no purpose whatever to waive her rights under the statute, and to allow the rent due for August and September to lose its distinctive character as rent and become an ordinary debt. The institution of the suit for the August and September rent was a distinct assertion of forfeiture, and it is not apparent how the assertion of a still further forfeiture, for non-payment of the October rent, although such assertion may have been erroneous, was a waiver of the prior forfeiture. She was suing for two things, as she might do under the statute, restitution and rent due. As she was claiming a forfeiture, it was by no means clear that she could include in her suit rent due by the contract, but not earned. Forfeitures are not favored, and we know of no principle on which a landlord can forfeit the term for unearned rent payable in advance, and at the same time recover the rent. He can, indeed, bring an ordinary action for the unearned rent and recover it, but this would not prevent him from allowing the rent to be earned by allowing the tenant the use of the premises until it should be earned.

The plaintiff, then, was confronted with this dilemma: either to include in her statement in this case the October rent, at the risk of having her whole proceeding fail by reason of having sued for too much, or not to include it. She chose not to include it. And because she made it the basis of a contemporaneous action under the statute, which action was improvidently brought and subsequently dismissed, it is argued that she has waived her right to maintain this action. Such a conclusion is quite untenable.

Aside from these facts, the defendant himself gave evidence, not contradicted, to the effect that before the trial in this cause in the circuit court, he had surrendered possession of the premises to the plaintiff, and that the plaintiff had ever since then...