Prior v. Kiso

• Decision Date: 31 October 1883
• Citation: Prior v. Kiso, 81 Mo. 241 (Mo. 1883)
• Parties: PRIOR, Plaintiff in Error. v. KISO et al.
• Court: Missouri Supreme Court

81 Mo. 241

PRIOR, Plaintiff in Error.

v.KISO et al.

Supreme Court of Missouri.

October Term, 1883.

Error to Cole Circuit Court.--HON. E. L. EDWARDS, Judge.

REVERSED.

Edwin Silver for plaintiff in error.

The separate answer of John Kiso expressly admits that under the contract of lease he and Hermann Kiso entered into possession of the leased premises, except as afterward stated, did the work and labor and paid for the rent for fifteen months, as alleged in the petition.The lessees having so ratified and acquiesced in the possession given, cannot now complain of its insufficiency.Crommelin v. Theiss,31 Ala. 412;Cram v. Dieser, 2 Sandf.(N. Y.) 121;Hart v. Hardin,43 Mo. 171.The lessees having by their conduct and payment of rent, waived any objection as to the refusal to give full possession of the premises, such waiver also bound the sureties.Ross v. Woodville,3 Munf. 324;Com'r v. Ex's, 1 Bailey (S. C.) 151; Lillard v. Rucket, 9 J. Baxter 568; Dillingham v. Jenkins, 7 S. & M.(Miss.) 486;Benjamin v. Hilliard,23 How.(U. S.) 149.The alleged release of John Kiso not being under seal, was not binding.McAllister v. Dennin,27 Mo. 40.The facts in the case fail to show a surrender of the original term of the lease by operation of law, and in the absence of such surrender both lessees continued liable for the rent.Schieffelen v. Carpenter,15 Wend. 400;Whitney v. Meyers, 1 Duer 267;Coe v. Hobby,72 N. Y. 145, 146;Hunt v. Gardner,39 N. J. L. 530;Slocum v. Brown,5 Cranch. C. C. 315;Auriol v. Mills, 4 D. &E. 94;Brewer v. Dyer,7 Cush. 339.The lease and surety instrument, as they were executed on the same day, and the latter refers to the former, should be construed together, and as one instrument.Noel v. Gaines,68 Mo. 653.As was said in Speck v. Riggin,40 Mo. 405, a party is as much estopped by giving a matter in evidence, as by pleading it, and John Kiso's own testimony disproves any intention on his part to surrender the original lease, for he said: “After Herman's death, I came down to take the mill; I thought I had to run the mill; knew my name was on the lease and on the bond; went to see about things, and tried to rent the mill from the administrator; thought I was entitled to the possession.”The alleged assignment by Herman Kiso to John Kiso of his interest in the lease being for a greater term than one year, was void under the statute of frauds, and the assignment to Herman being invalid, no surrender took place.Schieffelen v. Carpenter,15 Wend. 450;Coe v. Hobby,72 N. Y. 147;Mollet v. Brayne,2 Camp. 104.Defendants' fifth instruction was wrong, because it permitted the jury to fix the rent at a different price than that stipulated in the lease, which could not be done in view of the retention of the premises for fifteen months and the settlement had.Crommelin v. Theiss, and authorities supra.The lease was to the two Kisos jointly, and the occupation of one was that of both.Kendall v. Garland,5 Cush. 75.Conceding there was a surrender of the original term, it did not operate to release either John Kiso or the sureties from any rent accruing prior to the surrender.Kingsbury v. Woodfall,61 N. Y. 356.

J. E. Belch for defendants in error.

The petition alleges that the cause of action is based on the bond, which is filed with the petition, and this is the most natural construction of the petition, because it is well settled in this State that the maker and guarantor of an instrument cannot be sued jointly in the same action, and to hold that both instruments are sued on would make a bad petition and a misjoinder of parties.Parmerlee v. Williams,71 Mo. 410;Graham v. Ringo,67 Mo. 324;Central Sav. Bank v. Shine,48 Mo.loc cit. 463.Appellant has no cause to complain of the manner in which the trial court submitted his part of the case to the jury, for he got the full benefit of his own theory, divested of all questions or qualifications affecting the defense.The surety defendants only guaranteed the performance of the contract as it existed when they executed the instrument in suit.Brandt on Sur. and Guar., §§ 338,345;Baylies Sur. and Guar., pp. 260, 297;Farras v. Kramer,6 Mo. App. 167.The contract guaranteed by the sureties, was to be performed on the premises by two persons, and if plaintiff consented to or caused one of them to retire, so that only one was left to perform the contract, there was a material alteration of and departure from the original contract, and if a breach occurred under the circumstances, the sureties are not liable.Penn v. Collins,5 Rob.(La.) 213.

PHILIPS, C.

In September, 1872, the plaintiff leased to John and Herman Kiso, for a term of five years, certain premises in Osage county, consisting of a grist and sawmill, a farm appurtenant, with blacksmith shop and ferry over the Gasconade river.Plaintiff was to put the lessees in possession on October 1st, following.Plaintiff was to make certain repairs, and was to pay the defendants for the same in case he neglected it, etc.Defendants were to pay a rental of $2,000 a year, payable quarterly, beginning on the first day of January, 1873.

On the same day the defendants, on another paper, executed the following instrument of writing: “We, the undersigned as principal and sureties, do bind ourselves in the sum of $20,000, recoverable by George W.Prior, for the rent of his mills and farm, as designated between George W.Priorand Herman and John Kiso, in an article designated by both parties; the object of this is to secure the rent and delivery of the mills and farm in good order and condition.”This surety contract was executed pursuant to a stipulation providing therefor in said contract of lease.Both the lease and collateral undertaking, were under seal.The petition filed herein by Prior, sets out said lease and the undertaking of defendants as sureties or guarantors, and alleges that the Kisos took possession of the leased premises at the time designated in the contract, and continued therein for fifteen months, making certain repairs, which discharged the rents for that time, except the sum of $20, which they paid in cash.That at the end of fifreen months, he and the Kisos had a full settlement of all matters between them touching said lease, which was final and conclusive; that in the month of June, 1875, Herman Kiso died intestate, after which time John and the administrator of said Herman, continued to hold the premises, until the 1st of December, 1875, but failed to pay said rent, as stipulated in the contract, leaving a balance due plaintiff of $3,625.This action is brought against the defendants on said guaranty to recover said balance and interest.

The defendantJohn Kiso, filed separate answer, charging: “1.That plaintiff failed to comply with the conditions of his contract, and refused and failed to deliver full and complete possession of the premises, farm and mill to defendant and Herman Kiso, but kept for himself and family, full and exclusive possession of the dwelling house and part of the mill and buildings, to the great damage and annoyance of defendant and Herman Kiso.

2.That at the time of making the lease, John and H. Kiso had formed a partnership for the purpose of running the mill and farm mentioned in the lease, as the plaintiff at the time well knew, and that said lease was really made to said John and H. Kiso as partners, and that they so ran the mill and farm as partners from the beginning of said lease, until February 2nd, 1874; that by reason of plaintiff's failure to deliver full possession of the premises, the defendants refused to keep the same under the lease, and refused to remain in said partnership, and that on February 2nd, 1874, said partnership was wholly dissolved by mutual consent, and the defendant(John Kiso) then and there for valuable consideration, sold and conveyed all his rights and interest in the lease to H. Kiso, with full knowledge and consent of plaintiff, and from said last date, H. Kiso had, and held the exclusive possession of all the leased premises, except as heretofore stated, and from that time until the delivery of said premises on December 1st, 1875, (was) solely responsible to said plaintiff, and (was), by plaintiff, held as solely and exclusively responsible; and said partnership was fully dissolved and defendant released from all liabilities created by said lease on February 2nd, 1874, with full knowledge and consent of the plaintiff.

3.Admits that said H. Kiso, after his death, by his representatives, continued in possession of the premises till December 1st, 1875, but denies that the defendant from and after February 2nd, 1874, was ever in possession of the leased premises, but that after the last date, and that of the dissolution of the partnership, H. Kiso had the sole possession, and was solely liable for the rent, and this defendant denies that there was a failure to pay rent quarterly, or at any other time, but says, that all rent due plaintiff, has been fully paid and discharged, and that nothing is due plaintiff therefor, by this defendant or any one else.”

The other defendants answered jointly.The material averments of their answer are as follows:

“2.That they executed the instrument sued on as securities for H. and J. Kiso, then being partners, and leased said property in partnership and for the purpose of carrying on the partnership business of milling, farming, etc., as co-partners, which was at the time known to the plaintiff; that the undertaking of defendants was that of securities for the rent reserved in the contract of lease of plaintiff to the Kisos, but that said contract was never complied with by plaintiff; that plaintiff refused to deliver up all the premises so leased to the Kisos, and that the latter never entered on the premises under the terms of the lease; that afterward the Kisos, by agreement with plaintiff, entered into a part of said premises, and plaintiff kept possession of a...