Sander v. Holstein Commission Co.

• Decision Date: 10 April 1906
• Citation: 99 S.W. 12,118 Mo.App. 29
• Parties: SANDER, Respondent, v. HOLSTEIN COMMISSION COMPANY, Appellant
• Court: Missouri Court of Appeals

99 S.W. 12

118 Mo.App. 29

SANDER, Respondent, v. HOLSTEIN COMMISSION COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

April 10, 1906

Appeal from St. Louis City Circuit Court.--Hon. Matt. G. Reynolds Judge.

AFFIRMED.

Judgment affirmed.

Bass & Brock for appellant.

The court erred in giving to the jury of his own motion for both plaintiff and defendant instruction marked C-2. Vegely v Robinson, 20 Mo.App. 199; Mathews, Admr., v Tobener, 39 Mo. 115; Buck v. Lewis, 46 Mo.App. 227; Livermore v. Eddy, 33 Mo. 547; Duffy v. Day, 42 Mo.App. 638; Witte v. Quin, 38 Mo.App. 681; Harrison v. Russell, 75 Mo.App. 113; Schnisler v. Ames, 16 Ala. 73; Mackellar v. Sigler, 47 How. Pr. 20; Fitch v. Sargeant, 1 Ohio (Han.) 352; Randall v. Rich, 11 Mass. 493; Carson v. Arvants, 10 Col. App. 388; Lafferty v. Hawes, 63 Minn. 13; Bird v. Defonville, 2 C. & K. 415; Rice v. Dudley, 65 Ala. 68; Calhoun v. Achison, 4 Bush (Ky.) 261; Day v. Watson, 8 Mich. 535; Shahan v. Hertzberg, 73 Ala. 59; Colville v. Miles, 45 Hun 236; Kneeland v. Schmidt, 78 Wis. 345; Belamy v. Smith, 4 Houst. (Del.) 113; Tiley v. Moyers, 43 Pa. St. 404; Day v. Watson, 8 Mich. 535; Briggs v. Thompson, 9 Pa. St. 338; Hegeman v. McArthur, 1 E. D. Smith (N. Y.) 141; Graham v. Anderson, 3 Harr. Del. 364.

Chas W. Holtcamp and Henry A. Baker for respondent.

(1) Respondent did not waive his right to a written notice of the termination of the tenancy in question by appellant. (2) Respondent did not acquiesce in appellant's abandonment of the premises in question, nor was there, under the circumstances of this case, a constructive eviction of appellant. Buck v. Lewis, 46 Mo.App. 231 and 232; Huling v. Roll, 43 Mo.App. 243.

OPINION

BLAND, P. J.

--In September, 1903, the defendant (a corporation) was a tenant of the plaintiff from month to month occupying a store room, known as 807 and 809 North Third street, city of St. Louis, at a rental of one hundred and twenty-five dollars per month. About September twenty-fifth or twenty-sixth, 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 thirtieth, defendant vacated the premises, and on October third served plaintiff with a written notice of its intention to vacate on and after September thirtieth. 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 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 it 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 fifteenth 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 twenty-five to thirty 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 as October tenth. 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 thirty-first, 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 or that it has any bearing whatever on the issue of the termination of the tenancy prior to the end of the month of October, for the reason, in my opinion, plaintiff's acts and...