Thomas v. Cox ex rel. Beltzhoover

• Decision Date: 30 September 1840
• Parties: THOMAS v. COX, TO THE USE OF BELTZHOOVER.
• Court: Missouri Supreme Court

6 Mo. 506

THOMAS

v.COX, TO THE USE OF BELTZHOOVER.

Supreme Court of Missouri.

September Term, 1840.

APPEAL FROM THE CIRCUIT COURT OF ST. CHARLES COUNTY.

BATES and CAMPBELL, for Appellant. 1st point. An instrument of writing, such as the one on which this suit is brought, under our statute, may be legally assigned, so that the suit should be brought in the assignee's name. 2nd. An instrument of writing, such as the one now sued upon, may be surrendered by words without writing. 3rd. Verbal testimony is competent to prove a surrender of such a lease as that now in controversy. 4th. The court ought to have granted a new trial in the cause. 5th. The declaration of the plaintiff is materially defective. Authorities: Rev. Code, p. 105, § 2; do. 284, § 9; Blackstone's Com. p. 327, § 10; 2 Chitty, p. 535-6, and note; 1 Chitty, p. 107.

COALTER, for Appellee. The first point which arises in this case is on the demurrer to the first plea, and this, I maintain, was properly sustained by the court. 6 Cranch, 82, Lewis v. Harwood; 1 Rev. Code of Virginia, of 1819, 484; Force's Adm'r v. Thomason, 2 Littell's Reports, 166; Holbert v. Deering, and Brooks v. Deering, 4 Lit. 9. The next point arises on the demurrer to the second plea; this plea is that the house and premises mentioned in the lease were destroyed by fire before the termination of the lease, and therefore, Thomas was not bound to pay. There is no doubt that a tenant is bound to pay rent, notwithstanding the destruction of the house by fire, unless there is a special exception in his lease, that in case of fire he shall not be bound to pay rent. Comyn on Landlord and Tenant, 115 and 119. The next point is on the surrender which he says he made to Cox. This plea certainly is a nullity. Statute of Frauds, § 9. The other points are on the exclusion of testimony. The deed to Jonathan L. Bean, and the written statement of James B. Bowlin were properly excluded, because they had no relevancy to any of the issues. The statements of Magehan and McKee were properly excluded for the same reason, and because they went to prove a verbal conversation with Beltzhoover about the premises, and a surrender to him verbally, if they prove anything. The receipts of Busby were properly excluded because they were not competent unless a judgment and executions were shown, by which he was authorized to receive the money.

MCGIRK, J.

In the St. Charles Circuit Court, Cox, to the use of Beltzhoover, brought three actions of covenant on the same writing against Thomas and two others. The suits are nearly alike in all respects. The actions are founded on an article or agreement under seal, by which Wm. Cox bargains and contracts as follows, to wit: “I, William Cox, for and in consideration of the sum of one thousand dollars to be paid as hereinafter mentioned, do hereby assign and set over to Jonathan Thomas, John Dawson and Isaac Rubel, all the right, title and interest which, as assignee, I have in and to the following premises (here the premises are described, being a house and lot in St. Louis), which I now hold under lease from Arthur L. McGinnis, dated April 1st, 1835, for the full and complete term of four years from the date thereof.” At the end of this clause, the covenant proceeds as follows, to-wit: “and the said Jonathan Thomas, John Dawson and Isaac Rubel, for themselves, their heirs executors and assigns, do hereby covenant to and with the said Cox and his heirs, to pay the just and full sum of one thousand dollars for the unexpired term of said lease to said Cox, which is three full and complete years from the first day of April, 1836, in quarterly installments or payments, and that they will, at the end of said term, return unto said Cox the aforesaid house, messuages or tenements, in as good order and repair as they received it, usual wear excepted. Witness our hands and seals.” Then the same is signed and sealed by all the parties. The breaches assigned are, that said parties entered into the enjoyment of the premises immediately, and that Cox fulfilled all things on his part, but that the defendants, on the 1st of April, 1839, five hundred dollars being then due, failed to pay the same, &c., wherefore he is injured, &c. The writ was served on Thomas, who appeared and craved oyer of the covenant sued on, and on it being read, he pleaded several pleas, the 1st of which is, that after...