Schlemmer v. William North

• Decision Date: 31 March 1862
• Parties: JOHN SCHLEMMER, Respondent, v. WILLIAM NORTH, Appellant.
• Court: Missouri Supreme Court

32 Mo. 206

JOHN SCHLEMMER, Respondent,

v.WILLIAM NORTH, Appellant.

Supreme Court of Missouri.

March Term, 1862.

Appeal from St. Louis Law Commissioner's Court.

This was a suit in trespass, commenced August 12, 1857, to recover the sum of one hundred dollars, for entering the premises of the plaintiff and tearing down and carrying away a frame house, &c.

The answer denied the trespass, and alleged the title to be in defendant.

It appeared that plaintiff was tenant of defendant, and had paid rent up to May 1, 1857, and that defendant procured possession from the sub-tenants, and on the 23d April entered upon the premises and tore down the buildings for the purpose of rebuilding.

The fifth, sixth and seventh instructions, prayed by the defendant and refused, were as follows:

5. The plaintiff cannot recover for the improvements alleged to have been torn down and carried away.

6. That if plaintiff notified his tenants to leave prior to the 1st May, 1857, and made efforts to induce them to leave, for the purpose of enabling defendant to remove said premises prior to the 1st May, with a view to rebuild, and defendant induced any of the tenants to leave by paying them a consideration for so doing, then plaintiff cannot recover for any act of defendant relating to the removal of any premises voluntarily abandoned by any tenant.

7. That if the plaintiff is entitled to recover in this case, the true measure of damages is the value of the rent from the time the premises were taken down until the 1st May following.

Instruction for plaintiff, given:

1. If the court finds from the evidence that plaintiff was entitled to the possession of the premises, and that defendant without the consent of plaintiff took possession of the same until the commencement of this suit, then plaintiff is entitled to recover the value of the premises from the time they were taken by defendant up to the commencement of the suit, unless the court finds that plaintiff's right to the possession terminated prior to commencing this suit.

Bay, for appellant.

A. M. & S. H. Gardner, for respondent.

BATES, Judge, delivered the opinion of the court.

This case was heretofore submitted to the court, and an opinion thereon prepared by Judge Ewing, whilst on the bench, but that opinion was not delivered or judgment rendered in accordance with it. The parties now agree that that opinion may be adopted as the opinion of the court and judgment entered in accordance with it.

The judgment of the court below is, therefore, reversed and the cause remanded. Ju...