Rauth v. Dennison
| Decision Date | 08 May 1962 |
| Docket Number | No. 8001,8001 |
| Citation | 357 S.W.2d 201 |
| Parties | Mildred RAUTH, Plaintiff-Respondent, v. O. C. DENNISON, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Ronald J. Fuller, Rolla, for defendant-appellant.
Breuer, Northern & Crow, Rolla, for plaintiff-respondent.
In this jury-waived court-tried action at law, defendant tenant appeals from the judgment of $975 entered against him for rental of the ground floor of a brick building in Rolla, Missouri, for three months from and after January 20, 1960.
Plaintiff owned a one-story brick building with full basement. The ground floor was divided into two storerooms by a center partition. In one storeroom, plaintiff and one Hardebeck had operated a hardware and sporting goods store for about seven years. During April or May 1959, plaintiff rented the other storeroom to defendant who immediately opened a furniture and appliance store there. The basement was occupied by a pool room. With defendant insisting that he needed more room, plaintiff and Hardebeck closed out their store at public auction on August 29, 1959, defendant and his sons knocked out the center partition on August 31, and plaintiff rented the entire first floor to defendant for $325 per month 'plus two-thirds of the heating bill and . . . the air conditioning.' When defendant took the entire first floor, plaintiff 'asked him for a lease . . . and he said that he would be willing to sign a lease, that . . . he wanted the building for five years, ten years, or he said, 'I'll be here hereafter." Defendant's son, who managed the store and had participated in the conversations with plaintiff, confirmed the fact that his father had agreed to give plaintiff 'a long term lease'--'we expected to give her a lease as well as she expected to have one; that's only business.' But, when a written lease was presented to defendant, he refused to sign it. After offering the innocuous explanation that 'we asked to rewrite a few phrases,' the son conceded that one of the points of disagreement was that, while defendant wanted 'a long term lease,' he 'wanted the right to terminate any time (he) got ready to terminate.' Having already vacated the building herself, permitted removal of the partition, and turned over the entire first floor to defendant, plaintiff apparently consoled herself with defendant's oral assurance that 'his word was as good as a bond.' In any event, there was no written lease.
The parties agree that the cash rental of $325 per month for the entire first floor began on September 20, 1959; that the cash rentals for the monthly rent periods commencing on September 20, October 20, November 20 and December 20, 1959, were paid in full; and that no portion of the rental for the month commencing January 20, 1960, or for any subsequent monthly rent period was tendered or paid. There was much testimony, in many respect conflicting, concerning conversations between the parties prior to January 20, 1960. One of those conversations was shortly after defendant had been in the hospital in November 1959. Defendant's version of that conversation was that he told plaintiff 'that we had a party that was interested in the store, and asked her (plaintiff) . . . if I could bring him over and talk to her about renting it and all, and she said she'd be glad to'--'I told her at that time that we either had to do one of the two, sell it or vacate it, and she said, 'Do the best you can, we'll work with you.'' Plaintiff's summation of that conversation was that 'he (defendant) thought he had a buyer and would I work with the buyer . . . in regard to the rent . . . and I told him that I would,' but plaintiff insisted that defendant said nothing about vacating her building. Defendant stated, but plaintiff denied, that on two or three occasions prior to December 20, 1959, he (defendant) 'told her that I was going to have to leave, that I would give her a 30-day notice; I was gonna tell her now that on the 20th I'll bring you a check and that'll be the last month.' And, defendant also asserted, but Hardebeck denied, that on December 20, 1959, he (defendant) delivered the rent check for the ensuing month to Hardebeck (in plaintiff's absence) at another place of business jointly operated by her and Hardebeck and 'told him to give it to (plaintiff) and tell her that we'll be out by the 20th and I'll turn in her keys the 20th of next month.'
According to plaintiff, knowledge of defendant's intention to vacate her building first came to her about January 10, 1960, when an unidentified third party told her that defendant had moved his stock and inquired of her whether the building was for rent. This motivated a telephone call to defendant, in the course of which plaintiff said 'I hear you're moving' and defendant confirmed that fact. When she looked in the building that evening, plaintiff saw that 'practically everything was out but refrigerators and appliances.' Nothing further is shown to have occurred until the afternoon of January 20, 1960, when defendant came to the place of business operated by plaintiff and Hardebeck and laid the keys to the rented building on a desk. This was defendant's terse account of the conversation that afternoon: Plaintiff's report of the same conversation was:
Either that same day or within a day or so thereafter, plaintiff entered the vacated building to check doors, windows, heat and water. On the following day, towit, on January 21, 1960, plaintiff's attorneys wrote defendant at length, (a) notifying him that he then owed the cash rent of $325 'which was due and payable on January 20th,' $71.05 as 'the fuel bill up to January 1, 1960,' $25.52 as 'the fuel bill from January 1 to January 20, 1960,' and $25 as the estimated fuel bill for the month commencing January 20, (b) stating that 'the law requires one who is occupying property on a month to month basis to give a written notice of his intention to terminate the month to month tenancy,' (c) pointing out that plaintiff had 'vacated the premises and made them available to you at a tremendous expense to herself,' (d) demanding payment of the listed items, and (e) warning of suit if payment was not forthcoming. In response to that letter, defendant mailed a check for the items of $71.05 and $25.52, his portion of the heating bills to January 20, 1960. There was no other payment by defendant and no further contact or communication between the parties or their representatives prior to suit.
A 'for rent' sign was painted on, or placed in, the front window of the vacated building sometime after January 20--defendant said within eight to ten days thereafter, witness Hardebeck thought 'at least thirty days or more after the building was vacated,' while plaintiff repeatedly answered 'I do not know' when urged to express her judgment on this subject. Upon permission granted by plaintiff but with no profit or payment to her, 'charitable organizations' conducted several rummage sales in the vacated building before it was rerented by plaintiff on May 24, 1960. Defendant thought that the first rummage sale was held 'only a few days' after January 20, while plaintiff stood on 'I wouldn't know' when pressed for information in this area. Plaintiff replaced the center partition in the vacated building, dividing the ground floor into two storerooms. This was, so she said, 'somewhere around' April 24, 1960, while defendant 'imagined' it was 'somewhere around' thirty days after he had moved.
Admitting that his tenancy was from month to month and that he gave no notice in writing of his intention to terminate that tenancy [Laws of 1951, p. 747; V.A.M.S. Sec. 441.060], defendant denies liability for payment of any additional rental because, so he asserts, there was 'a surrender by operation of law' on January 20, 1960. In essence, defendant's contention is that, when he laid the keys on a desk in plaintiff's office on the afternoon of January 20, 1960, she had 'a duty, as landlord, to speak up if she did not mutually agree to the surrender,' that she then 'failed by word and deed to convey such notice to defendant as would prevent an acceptance of a surrender by operation of law,' and that she accepted 'surrender of the premises by defendant on January 20.' Defendant apparently treats subsequent events, i. e., the placing of the 'for rent' sign on or in the front window, the holding of rummage sales in the vacated building by charitable organizations, and the replacement of the center partition, as confirming plaintiff's alleged acceptance of the surrender on January 20.
Running through all of the reported cases in this field of law is the principle that a surrender of premises by the tenant and an acceptance thereof by the landlord must be consummated by mutual consent and agreement of the parties. 1 If the surrender be accomplished by implied agreement, 'it is said to be done by operation of law, and the intention of the parties is to be implied from the acts and conduct of the respective parties, as disclosed by the attending facts and circumstances. 'A surrender by operation of law occurs where the parties, without express surrender, do some act or acts from which it is necessarily implied that they have both agreed to consider the surrender as made--acts which are necessarily inconsistent with the continued...
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