Sander v. Holstein Commission Co.

• Decision Date: 10 April 1906
• Parties: SANDER v. HOLSTEIN COMMISSION CO.
• Court: Missouri Court of Appeals

99 S.W. 12

181 Mo. App. 29; 121 Mo. App. 293

SANDER v. HOLSTEIN COMMISSION CO.

St. Louis Court of Appeals. Missouri.

April 10, 1906.

On Rehearing, December 11, 1906.

1. LANDLORD AND TENANT—TENANCY FROM MONTH TO MONTH—TERMINATION—WAIVER OF NOTICE.

Where a landlord, in response to the statement of a tenant from month to month that he would have to look for another place, said that if that was his intention he could not hold him, but afterwards repeatedly demanded written notice of intention to move, there was no waiver of written notice.

2. SAME—USE OF PREMISES BY LANDLORD.

Where the tenant of a store building from month to month vacated the premises without written notice at the beginning of the month, and left the keys at the premises on the landlord's refusal to accept them, and the landlord used the premises during a part of the month for storing chicken coops and 25 to 30 barrels of apples, it was a question for the jury whether he took possession of the premises for the purpose of releasing the tenant from further liability for rent.

Appeal from St. Louis Circuit Court; Matt. G. Reynolds, Judge.

Action by Albert Sander against the Holstein Commission Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Bass & Brock, for appellant. Holtkamp & Baker, for respondent.

BLAND, P. J.

In September, 1903, the defendant, a corporation, was a tenant of the plaintiff from month to month, occupying a storeroom, known as "807 and 809 North Third Street," city of St. Louis, at a rental of $125 per month. About September 25th or 26th defendant's secretary asked the plaintiff to reduce the rent. Plaintiff refused to reduce the rent, and the secretary said: "We will have to look for some other place." Plaintiff replied: "If that is your intention, I cannot hold you." A few days later, but before the end of the month, plaintiff told defendant's officers that if it was their intention to move to give him written notice. The answer to this request was: "It is not necessary." Plaintiff replied: "We have got to have one. It is the law." Plaintiff testified that he made a demand on defendant's officers for written notice of defendant's intention to quit on several occasions before the end of September. On September 30th defendant vacated the premises, and on October 3d served plaintiff with a written notice of its intention to vacate on and after September 30th. On the day defendant moved, it made an effort to deliver the keys to plaintiff, but did not succeed in finding him. This was on Saturday. On the following Monday morning one of defendant's officers offered to deliver the keys to plaintiff at his place of business. Plaintiff refused to receive the keys, and they were left in plaintiff's store. The court very properly refused to instruct on the theory that plaintiff had waived the necessity of a written notice to terminate the tenancy. The evidence not only fails to show a waiver of necessity of written notice, but, on the contrary, is all one way that plaintiff demanded of defendant a written notice of its intention to quit at the end of September, if such was its real purpose.

2. The plaintiff was in the commission business, and occupied a storeroom, No. 805, adjoining the store occupied by defendant. The two rooms were separated by a solid wall, with no opening from one into the other. Plaintiff testified that on the 15th of October he unlocked the door of the storeroom defendant had vacated, which opened on the sidewalk, and placed in it a lot of chicken coops and from 25 to 30 barrels of apples, and that thereafter he continued to use the room for storing chicken coops, barrels of apples, and Christmas trees. Defendant's evidence is that plaintiff had chicken coops and apple barrels in the room as early os October 10th. On this branch of the case the court instructed the jury as follows: "The court further instructs you that, although you find and believe from the evidence that on October 31, 1903, defendant vacated the premises and abandoned the same, and that plaintiff refused to accept the keys to said premises on November 2, 1903, and that defendant's officers or agents left the keys in plaintiff's place of business, and that plaintiff thereafter took said keys so left and used said premises, yet this will not preclude plaintiff from recovering the rental, unless you believe from the evidence that plaintiff took possession of said premises with the intention and purpose of releasing defendant from further liability on account of the rent." Under the evidence, I do not think the plaintiff's intention in occupying the premises is controlling,...