The St. Joseph & St. Louis Railroad Company v. The St. Louis, Iron Mountain & Southern Railway Company

• Decision Date: 30 June 1896
• Citation: 36 S.W. 602,135 Mo. 173
• Parties: The St. Joseph & St. Louis Railroad Company, Appellant, v. The St. Louis, Iron Mountain & Southern Railway Company
• Court: Missouri Supreme Court

36 S.W. 602

135 Mo. 173

The St. Joseph & St. Louis Railroad Company, Appellant, v. The St. Louis, Iron Mountain & Southern Railway Company

Supreme Court of Missouri, Second Division

June 30, 1896

Rehearing Decied 135 Mo. 173 at 198.

Appeal from St. Louis City Circuit Court.

Affirmed.

Everett W. Pattison for appellant.

(1) Respondent is liable for the rent and penalties, whether the lease of April 10, 1884, constituted an assignment or only a sublease. R. S. 1889, secs. 6388, 6389; Martin v Hicks, 25 Mo.App. 359; Hulett v. Stockwell, 27 Mo.App. 328; Garroute v. White, 92 Mo. 237. (2) Respondent is liable for damages for nonrepair of appellant's property, whether the lease of April 10 1883, constitutes an assignment or only a sublease, inasmuch as respondent covenanted with the Wabash to keep appellant's road in repair. Bank v. Leyser, 116 Mo. 51; State ex rel. v. Gaslight Co., 102 Mo. 472; Fontaine v. Lumber Co., 109 Mo. 55; Rogers v. Gosnell, 58 Mo. 589; Meyer v. Lowell, 44 Mo. 328; Flanagan v. Hutchinson, 47 Mo. 237; State v. Railroad, 125 Mo. 596; 1 Wood's Land. & Ten. [2 Ed.], pp. 270, 371, 797, 799, 807; 2 Platt, Leases, 190, 196; Schieffelin v. Carpenter, 15 Wend. 400; Meyers v. Burns, 35 N.Y. 269, 272; Lockrow v. Horgan, 58 N.Y. 635; Green v. Eden, 2 Th. and Cook (N. Y.) 582. (3) Independently of the statute, and of the rights accruing to appellant under the express covenants contained in the lease of April 10, 1883, respondent is liable for rent and repairs because that instrument constituted in law an assignment of appellant's lease. First. A demise of leased property for a term extending beyond the term of the original lease is necessarily an assignment of the original term. 1 Taylor L. & T., secs. 14, 15, 16; sec. 111; 2 Id., sec. 426; Bouvier's Law Dict., Lease; Woodfall's L. & T. 258; 1 Wood's L. & T. [2 Ed.], pp. 146, 727; Hicks v. Downing, 1 Ld. Raym. 99; Langford v. Selmes, 3 Kay & Johns. 220; Wollaston v. Hakewill, 3 M. & G. * 297; Beardman v. Wilson, 38 L. J. C. P. 91; Porter v. French, 9 Ir. L. Rep. 514; Pluck v. Digges, 5 Bligh, N. R. 31; Stewart v. Railroad, 102 N.Y. 601; Sexton v. Chicago Storage Co., 129 Ill. 318; Smith v. Kelley, 45 N.Y.S. R. 49; Craig v. Summers, 47 Minn. 189; Railroad v. Settegast, 79 Tex. 256; Lee v. Payne, 4 Mich. 106; Blumenberg v. Myres, 32 Cal. 93. Second. The question here is not to be confounded with one arising between the sublessor and the sublessee. This latter depends on the contract. In the case at bar, the rights of appellant grow out of privity of estate. Stewart v. Railroad, 102 N.Y. 601; Sexton v. Chicago Storage Co., 129 Ill. 318; Craig v. Summers, 47 Minn. 189, 192; Porter v. French, 9 Ir. Law Rep. 514; Adams v. Beach, 1 Phila. 178. Third. The cases relied on by respondent, and cited by the referee in support of his conclusion, all fall within the class which involve the construction of the sublease as between the immediate parties to it, thus determining rights growing out of the contract. None of them determine the rights growing out of the privity of estate between the original landlord and the lessee of his lessee. Fourth. The question what intention is evidenced by the instrument of April 10, 1883, is immaterial. Fifth. The lease of April 10, 1883, conveyed to respondent the lessor's entire interest in appellant's lease. No reversion was left in the Wabash company. See cases already cited. The condition as to forfeiture in the lease does not constitute a limitation, but only a condition subsequent, and did not prevent the vesting of the entire interest in respondent for the entire term. 1 Tayl. L. & T., sec. 273, n. 4, 275, 279, 288; 2 Id., sec. 492. Studdard v. Wells, 120 Mo. 25; Ruddick v. Railroad, 116 Mo. 25; Ellis v. Kyger, 90 Mo. 600; Adams v. Lindell, 5 Mo.App. 197; 72 Mo. 198; O'Brien v. Wagner, 94 Mo. 93; Morrill v. Railroad, 96 Mo. 174, 179; Wills v. Gas Co., 130 Pa. 222; Craig v. Summers, 47 Minn. 189, 193; 4 Kent's Comm. 126; 2 Bouv. Inst. 273; 6 Am. and Eng. Ency. of Law, 903, and cases cited. Sixth. The introduction of new or different covenants does not prevent such lease from operating as an assignment. See cases cited under previous heads. (4) As assignee of the leasehold, respondent is liable upon all the covenants of the lease during the time its estate continued. First. It became liable upon the covenant to put and keep our road in good order and condition. See cases cited under 2, supra; also, 1 Wood's L. & T. [2 Ed.], 792; Huston v. Railroad, 21 Ohio St. 235; Harris v. Colbourn, 3 Harr. 338; Martyn v. Clue, 18 Ad. & Ell. 661; Conover v. Smith, 17 N.J.Eq. 51; Railroad v. Kenney, 82 Ky. 154; Railroad v. Reeves, 64 Ga. 492; Lydick v. Railroad, 17 W.Va. 427. Second. It is liable for the rents. See cases cited under foregoing heads. Third. It is liable not only for the rents, but for the penalty provided in the lease in case of default. 1 Wood's L. & T., sec. 333; Masury v. Southworth, 9 Ohio St. 340; Thinn v. Chomley, Croke, Eliz. 383; Brendloss v. Phillips, Id. 895; Clark v. Barlow, 4 Johns. 183. (5) The privity of estate, and hence respondent's liability, continued from April 10, 1883, the date of the lease to respondent, until April 24, 1886, the date on which appellant forfeited its lease. First. Respondent could rid itself of liability only by assigning over. There was no assignment of the lease by respondent. It did not even surrender the lease. R. S. 1889, sec. 5183. Smith v. Brinker, 17 Mo. 148; Public Schools v. Ins. Co., 5 Mo.App. 91; Guinzburg v. Claude, 28 Mo.App. 258; Ebling v. Fuglein, 2 Mo.App. 252; Negley v. Morgan, 46 Pa. St. 281; Schieffelin v. Carpenter, 15 Wend. 400; Walton v. Cromley, 14 Wend. 63; Childs v. Clark, 3 Barb. Ch. 52; Sanders v. Partridge, 108 Mass. 560; Bonneti v. Treat, 91 Cal. 223; Chicago, etc., Co. v. Sewing Mach. Co., 25 N.E. 669; 1 Wood's L. & T., sec. 340. Second. The appointing of the receivers, and the taking possession by them with respondent's consent, did not terminate its privity of estate. Railroad v. Humphreys, 145 U.S. 82; Railroad v. Humphreys, 145 U.S. 105; State ex rel. v. Ross, 122 Mo. 435; also 118 Mo. 57.

Wells H. Blodgett, A. G. Cochran, and H. S. Priest for respondent.

(1) Appellant is not entitled to recover in this case, if the contract of April 10, 1883, between the Wabash company and the Iron Mountain company was a sublease, for three reasons First. Because, at common law, an original landlord has no action against a subtenant for the recovery of rent, there being neither privity of contract, nor privity of estate between them. Taylor's Landlord and Tenant [5 Ed.], par. 448; 1 Woodfall on Landlord and Tenant, p. 265. Second. Because our statute (sec. 6388) has not changed the common law rule, except to the extent of giving a lien on crops, and the right of attachment in suits for recovery of the rent of agricultural lands. Third. Because, on the admitted facts in this case, there was a surrender of the lease of the Wabash to the Iron Mountain company on May 19, 1884. Taylor's Landlord and Tenant [5 Ed.], par. 514; McAdam on Landlord and Tenant [2 Ed.], sec. 207; Buck v. Lewis, 46 Mo.App. 227; Stone v. Whiting, 2 Starkie, 235; Murray v. Share, 2 Duer (N. Y.), 183; Randall v. Rich, 11 Mass. 493. (2) Under the pleadings in this case, appellant should not be heard to contend that the contract of April 10, 1883, between the Wabash and the Iron Mountain company was an assignment. In its petition it states that the instrument was a sublease, and in its answer, respondent admitted its execution as a sublease. Appellant can not declare on one cause of action and recover on another and different one. Buffington v. Railroad, 46 Mo. 246; Waldheir v. Railroad, 71 Mo. 514; Haynes v. Trenton, 108 Mo. 123; Larsons v. Street R'y Co., 110 Mo. 254. (3) Appellant states no fact in its petition which, if true, would make the Iron Mountain company liable as an assignee of appellant's lease to the Wabash. The petition does not state that the Iron Mountain company took the entire term, or the entire estate, of the Wabash company in appellant's road, and without that there could have been no assignment. Dunlap v. Bullard, 131 Mass. 161; Taylor's Landlord and Tenant [5 Ed.], par. 16; Stewart v. Railroad, 102 N.Y. 607. (4) As the statement of a cause of action by a landlord against the assignee of a lease, the petition is so defective as to be subject to demurrer, or motion in arrest, after judgment. Chitty on Pleading [7 Am. Ed.], top p. 401; Bliss on Code Pleading, secs. 221 and 228; Stephen on Pleading, p. 299. (5) The contract executed April 10, 1883, between the Wabash and the Iron Mountain company, did not operate as an assignment because it did not vest in the Iron Mountain all the estate the Wabash had, or the same estate the Wabash had, in appellant's road. Proprietors v. Grant, 3 Gray (Mass.), 147; Dunlap v. Bullard, 131 Mass. 163; Pearce v. Kilrain, 1 McM. Eq. 233; Adams v. Chaplin, 1 Hill, Chy. 271. (6) The general provisions of the contract between the Wabash and the Iron Mountain company, bring it clearly within the class of instruments that have been universally treated by the courts as under-leases. Post v. Kearney, 2 N.Y. 394; Ganson v. Taft, 71 N.Y. 48; Collins v. Hosbrouck, 56 N.Y. 157; Dunlap v. Bullard, 131 Mass. 161; United States v. Hickey, 17 Wall, 9; Callomer v. Kelly, 12 Iowa 319; Church v. Grant, 3 Gray (Mass.), 147. (7) Appellant can not recover against the Iron Mountain company, as an assignee of its lease to the Wabash, because after the execution of the Wabash mortgage of June 1, 1880, the entire legal estate of the Wabash, in appellant's road, could not be again assigned to the Iron Mountain company by any deed or instrument executed by the Wabash company alone. After the Wabash company had...