Phoenix Land & Improvement Co. v. Seidel
| Decision Date | 01 February 1909 |
| Citation | 115 S.W. 1070,135 Mo.App. 185 |
| Parties | PHOENIX LAND & IMPROVEMENT COMPANY, Respondent, v. M. SEIDEL, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Hermann Brumback, Judge.
Reversed and remanded.
Meservey & German and Cameron L. Orr for respondent.
(1) The court did not err in giving plaintiff's peremptory instruction at the close of all the evidence. Bank v Hainline, 67 Mo.App. 483; Zwisler v. Storts, 30 Mo.App. 174; Asphalt Co. v. Transit Co., 102 Mo.App 476; Woolf v. Campbell, 110 Mo. 114. (2) The evidence utterly failed to show an eviction. Lincoln Trust Co. v. Lincoln, 175 Mo. 43; Gray v. Gaff, 8 Mo.App. 392; French v. Pettingill, 128 Mo.App 156; Delmar Investment Co. v. Blumenfield, 118 Mo.App. 108; O'Neill v. Manget, 44 Mo.App. 279; Jackson v. Eddy, 12 Mo. 209. (3) The court did not err in rejecting the testimony of the witness, Seidel, as to the condition of the premises at the date of the lease. (4) This assignment of error, referring to the exclusion of the above testimony is too general and is insufficient. State v. David, 159 Mo. 531; State v. Brown, 168 Mo. 474.
Ringolsky & White for appellant.
(1) The court erred in peremptorily instructing the jury to find for the plaintiff. The case should have gone to the jury. Jackson v. Eddy, 12 Mo. 212; Stewart v. Sparkman, 69 Mo.App. 459; Wolff v. Campbell, 110 Mo. 120. (2) The defendant's defense of eviction was complete. The evidence established every constitutive element of a constructive eviction. 24 Cyc., 1131; 11 Am. & Eng. Ency. Law (2 Ed.), 471; Jackson v. Eddy, 12 Mo. 212; French v. Pettingill, 128 Mo.App. 161. (3) The court erred in rejecting testimony of witness, Seidel, as to the condition of the premises at the date of the lease. Witte v. Quinn, 38 Mo.App. 681.
This is an action by a landlord against a tenant for rent. The trial court peremptorily directed a verdict for the plaintiff, and defendant appealed.
It appears that defendant leased a flat of plaintiff which was one of a number of others in a building known as "flats." Defendant's apartment, or flat, consisting of several rooms, was on the lower or ground floor, immediately above the basement, which was divided into rooms and extended under the entire building. Defendant with his wife and children entered into possession and occupied the flat for two months when he claimed that plaintiff's actions in aiding and permitting other tenants in the building to maintain a nuisance in the basement immediately under him, compelled him to abandon the premises.
Though a lease be taken by a tenant for a certain time, at a certain rent, yet, if the landlord wrongfully evicts the tenant, he will be absolved thence on from the payment of rent. The eviction may be the result of the landlord's conduct which compels the tenant to abandon the premises. This is sometimes called a constructive eviction, but it is just as effective in severing the relation of the parties as if the landlord had taken hold of him bodily and thrust him out. It is said in Jackson v. Eddy, 12 Mo. 209, that,
It is true that the acts of other tenants of a landlord cannot affect the landlord's rights against the complaining tenant unless the landlord authorized or in some way became a party to the wrongful act. [French v. Pettingill, 128 Mo.App. 156, 106 S.W. 575; 11 Am. and Eng. Ency. of Law (2 Ed.), 471; 24 Cyc. 1131.]
With this statement of the law we will consider what the record of the evidence tends to show was the difficulty in this case. It tends to show that when defendant leased the flat there was no laundry in use in the basement under him. But that afterwards plaintiff put in the necessary plumbing whereby laundry work could be done; that is, it put in a sink of sufficient dimensions for emptying laundry...
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