St. Louis Billposting Co. v. Stanton

• Decision Date: 01 March 1913
• Citation: 172 Mo. App. 40,154 S.W. 821
• Parties: ST. LOUIS BILLPOSTING CO. v. STANTON.
• Court: Missouri Court of Appeals

154 S.W. 821

172 Mo. App. 40

ST. LOUIS BILLPOSTING CO. v. STANTON.

St. Louis Court of Appeals. Missouri.

March 1, 1913.

1. LANDLORD AND TENANT (§ 198)—LIABILITY —RECOVERY OF POSSESSION BY LANDLORD.

A judgment in a summary proceeding by a landlord for the possession of the premises for nonpayment of rent terminates the relation of landlord and tenant from the time of the removal of the tenant from the premises

thereunder, and ordinarily the right to rental subsequently accruing.

2. LANDLORD AND TENANT (§ 198)—LIABILITY — RECOVERY OF POSSESSION BY LANDLORD.

A lease provided for the payment of rent monthly in advance, that, in default of payment of any installment for five days, the tenant would surrender possession, "but for this cause the obligation to pay shall not cease," and that the tenant would pay double rent for every day he or any one else held over after the expiration of the lease or its forfeiture for nonpayment. Held that, where the landlord recovered possession in a summary proceeding for the nonpayment of rent, the quoted provision only obligated the tenant to pay the rent for that month, which had already accrued, and not to pay the rent for subsequent months.

Appeal from St. Louis Circuit Court; Jas. E. Withrow, Judge.

Action by the St. Louis Billposting Company against Edwin L. Stanton, doing business as E. L. Stanton & Co. Judgment for plaintiff, and defendant appeals. Reversed.

Robert & Robert, of St. Louis, for appellant, cited: Evans v. Voght, 8 Mo. App. 576; Mooers v. Martin, 23 Mo. App. 654-660; Nagel v. League, 70 Mo. App. loc. cit. 490; Murphy v. Bldg. Co., 90 Mo. App. 624; Whitney v. Meyers, 8 N. Y. Super. Ct. 276; Michaels v. Fishel, 169 N. Y. 381, 62 N. E. 425; Baldwin v. Thibaudeau (Com. Pl.) 17 N. Y. Supp. 532; Ash v. Purnell (Com. Pl.) 11 N. Y. Supp. 54; Johannes v. Kielgast, 27 Ill. App. 576; Hinsdale v. White, 6 Hill (N. Y.) 507; Crane v. Hardman, 4 E. D. Smith (N. Y. C. C. Pl.) 339; 2 Taylor, Landlord and Tenant (9th Ed.) p. 356.

William H. Bleyer, of St. Louis, for respondent, cited: Smith v. Thurston, 19 Mo. App. 48; Holmes v. Guion, 44 Mo. 164; Holmes v. Carondelet, 38 Mo. 551; Rieger v. Royal Brewing Co., 106 Mo. App. 513, 80 S. W. 969; Realty Co. v. Brecht, 109 Mo. App. 25, 84 S. W. 216; Hanson v. Russell, 75 Mo. App. 110; Livermore v. Eddy, 33 Mo. 547; Lincoln Trust Co. v. Nathan, 175 Mo. 32, 74 S. W. 1007; Bain v. Clark, 10 Johns. (N. Y.) 424; Heims Brewing Co. v. Flannery, 137 Ill. 309, 27 N. E. 286.

REYNOLDS, P. J.

This is an action for the recovery of $166.66 and interest, claimed to be due by defendant to plaintiff for rental of premises in the city of St. Louis for the months of October and November, 1909, under the provisions of a lease entered into between the parties, of date June 8, 1908, for a term of three years from the first day of July, 1908. The lease, among other things, provides that rent is to be paid in advance on the first day of each and every month; that in default of the payment of any monthly installment of rent for five days after the same becomes due, the tenant "will at the request of said St. Louis Billposting Company quit and render to it the peaceable possession thereof; but, for this cause the obligation to pay shall not cease." The lease contains the usual covenants as to use and occupation and obligation to repair any injury or damage done to the premises during the occupancy by the tenant, and that at the end of the term the lessee will surrender to the lessor peaceable possession of the premises with all the keys, etc., in as good condition as when received, usual wear and use and providential destruction or destruction by fire excepted, the lessee engaging to pay the rent above reserved, and double rent for every day he or anyone else in his name shall hold on to the whole or any part of said tenement after the expiration of the lease or its forfeiture for non-payment of rent, etc. There are no other covenants having any bearing upon the point in issue. The case was tried by the court, a jury being waived.

The lease having been introduced in evidence, the cause was submitted upon an agreed statement, in which it is set out that the parties, on the 8th of June, 1908, executed the lease, and that defendant entered and took possession of the leased premises on July 1, 1908, and continued to occupy them under the lease as tenant of plaintiff until the 14th day of September, 1909. That on the 9th of September, 1909, plaintiff commenced action before a justice of the peace of the city of St. Louis, to recover possession of the premises and rent from August 1, 1909, to September 30, 1909, it being agreed that the statement before the justice, after averring that this rental had been demanded from defendant by plaintiff's agent and that payment had not been made, continued: "Plaintiff, therefore, asks judgment for its rent and restitution of its premises and for costs." It was further agreed that summons was duly issued on this demand and served upon defendant, the summons citing defendant to appear before the justice at his office on a day named, "then and there to show cause, if any you have, why the possession of said premises should not be restored to the said landlord or its agent, and judgment for its rent and costs be rendered." It was further agreed that on the return day of the summons, that is to say, the 14th of September, 1909, as shown by the docket of the justice, that defendant had appeared and confessed judgment and had authorized the justice to render judgment in the case in favor of plaintiff and against defendant for the sum of $166.66, for the restitution of the premises occupied by defendant to plaintiff or its agent, describing them, and also for costs, and that judgment was accordingly entered by the justice; that thereafter, that is to say, on the 14th of September, 1909 defendant vacated the premises and delivered the keys thereof to the constable of the justice's court; that thereafter the constable delivered the keys to plaintiff, that defendant paid the court costs in the cause to the constable and on the 15th of September, 1909, paid plaintiff the sum of $166.66, in full for the amount of the judgment rendered in the cause; that no appeal was taken by either party from the judgment of the justice; that thereafter plaintiff demanded of defendant payment of the rent for the leased premises under the lease for the months of October and November, 1909, amounting to $166.66, which defendant refused to pay and which he never has paid. It further appears that plaintiff derived no rent from the leased premises for the months of October and November although it had advertised the same for rent and made diligent effort in attempting to obtain a tenant therefor, and the premises remained vacant during those two months, but that thereafter the landlord had rented the premises to others.

At the close of plaintiff's case, defendant interposed a demurrer, which was overruled.

Defendant thereupon offered evidence to the effect that during the occupancy of the premises under the lease and some time in July, 1909, a fire had occurred; that defendant claimed damages for being deprived of the use of the premises while the landlord was making repairs and, on the 4th of September, 1909, defendant had sent the landlord, in a letter and by mail, a check for $97.22, as in full for rental for the months of August and September, 1909, that being the agreed rental for those two months, less $69.44, claimed to be due the tenant for damages and repair work in consequence of the fire loss. On the 9th of September plaintiff returned this check to defendant, saying in the letter of transmittal that the check would not be accepted under the terms of the above-mentioned letter of defendant. On that same day, September 9, 1909, plaintiff commenced its action heretofore referred to before the justice for rent and recovery of possession.

At the conclusion of the trial, the circuit court found in favor of plaintiff and rendered judgment against defendant for rent for the months of October and November, 1909, with interest and costs. Judgment followed, from which defendant, after interposing a motion for new trial, as well as one in arrest and saving exceptions to the action of the court in overruling them, has duly perfected his appeal to this court.

The errors here assigned are to the refusal of the court to give a direction in the nature of a demurrer to the evidence, to the effect that plaintiff could not recover, to the error of the court in finding for and entering judgment for plaintiff, and to error in overruling the motions for new trial and in arrest.

The point made by counsel for appellant and on which the case was argued and is briefed, is that the summary proceedings before the justice under the Landlord and Tenant Act canceled and annulled and put an end to the lease; that defendant was thereby, by the act of the landlord, dispossessed and deprived of the use and occupation of the premises and his obligation to pay rent consequently ceased.

Maintaining that this is an action on the lease, counsel for respondent concede that the only question in the case is whether the proceeding before the justice released appel...