Thomas v. Roth

• Decision Date: 06 January 1942
• Docket Number: No. 25952.,25952.
• Citation: 157 S.W.2d 250
• Parties: THOMAS v. ROTH.
• Court: Missouri Court of Appeals

157 S.W.2d 250

THOMAS v. ROTH.

No. 25952.

St. Louis Court of Appeals. Missouri.

January 6, 1942.

Rehearing Denied January 20, 1942.

Appeal from St. Louis Circuit Court; William S. Connor, Judge.

"Not to be reported in State Reports."

Suit by Jack E. Thomas against J. N. Roth to recover under a written lease. From an adverse judgment, the plaintiff appeals.

Judgment affirmed.

Blumenfeld & Abrams and Adolph K. Schwartz, all of St. Louis, for appellant.

Lewis, Rice, Tucker, Allen & Chubb and John Torrey Berger, all of St. Louis, for respondent.

ANDERSON, Judge.

Plaintiff brought this appeal from a judgment for defendant in a suit on a written lease, under which lease plaintiff demised certain premises known as 7520 Oxford Drive, Clayton, Missouri, to the defendant, for a period of 2 years, beginning October 1, 1938, for a stipulated rental of $1,380, payable in equal monthly installments of $115 on the first day of each and every calendar month.

The evidence disclosed that the respondent took possession of the premises under the lease, and he and his family occupied same until December 4, 1938, when a fire caused the premises to become uninhabitable. Respondent paid the rent due on October 1, 1938, and on November 1, 1938, but failed to pay any of the installments thereafter due under the terms of the lease. The lease provided: "In case of the partial destruction of said premises by fire, accidents or the elements, so as to render it or any portion of it untenantable, a pro rata proportion of said rent shall be remitted or returned to said lessee until such time as again tenantable."

After the fire appellant repaired the premises and notified respondent that the apartment would be ready for occupancy February 10, 1939. Respondent refused to reoccupy the premises, and thereafter, in May, 1938, appellant rented the premises to another tenant and made demand on respondent for payment of the rent which appellant claimed to be due under the lease. Respondent refused to pay the amount claimed by appellant to be due, but tendered to appellant rent for four days in December, which tender appellant refused. Thereupon appellant brought this suit.

In defense respondent claimed a cancellation and surrender of the lease, and in support of his defense offered testimony that following the fire appellant's father came to the apartment and asked respondent's wife how soon they could vacate the apartment, as their lease was canceled on account of the fire. A little later, during another conversation, appellant's father again stated that they should vacate the premises as soon as possible, as the lease was terminated on account of the fire. Respondent's testimony further shows that he and his family did vacate the premises and appellant took possession.

Appellant's father denied that he had had any such conversation with respondent's wife, and appellant testified that he gave his father no authority to act for him in the matter. However, appellant's father did visit the premises after the fire, and appellant testified in the justice court that both his secretary and his father attended to some of his business at that time, as appellant was confined to his bed because of illness.

Appellant does not contend that a jury question was not made on the issue of his father's authority to bind him as agent.

Appellant assigns as error the giving of defendant's instruction No. 3, which reads as follows: "The Court instructs the jury that if you find and believe from the evidence that the plaintiff's agent, acting for him in this matter, agreed with defendant's wife, acting for him, that the lease mentioned in the evidence had been canceled as a result of the fire mentioned in the evidence, and that defendant relied on said agreement, if you so find, then your verdict should be in favor of the defendant and against the plaintiff."

Appellant says the instruction is erroneous because it did not require a finding by the jury that the lessor took possession of the premises with the intent of releasing the lessee from further payment of the rent.

A lease in writing constitutes a written contract, and the lessee cannot surrender possession of the premises and be released from the terms thereof without the consent of the lessor. Such consent may be evidenced by an express agreement, or it may be implied where the lessor has been a party to some act or acts, incompatible with the continued existence of the relation of landlord and tenant. In the former situation the surrender is purely contractual, while in the latter the principle of the law of estoppel, somewhat modified to meet the circumstances of the matter, appears to be the underlying support for the doctrine. In the former class of cases we look to the agreement to find the intent of the parties, and if such intent is found, and if the evidence further shows a yielding up of the premises by the lessee relying on the agreement, a surrender is effected. In such a case an instruction which submits the cause to the jury and which requires a finding of those two elements is not erroneous because it did not further require that the intention found to exist in the...