Walker v. Engler

• Decision Date: 31 March 1860
• Citation: 30 Mo. 130
• Parties: WALKER, Respondent, v. ENGLER, Appellant.
• Court: Missouri Supreme Court

30 Mo. 130

WALKER, Respondent,

v.ENGLER, Appellant.

Supreme Court of Missouri.

March Term, 1860.

1. Parol evidence is inadmissible to incorporate with a written instrument an oral agreement made contemporaneously with such instrument.

2. Where it is stipulated in a lease that in case any of the covenants are broken by the lessee, “the term shall become null and void at the option of the lessor,” the term does not become ended absolutely by a breach of a covenant; it is only voidable at the option of the lessor; he must do some act declaring or claiming a forfeiture.

3. So, where it was stipulated that the lessee would pay double rent for all the time the lessor should be kept out of possession after the expiration of the term by forfeiture, held, the double rent reserved was not a penalty, but estimated or liquidated damages.

4. Acceptance of rent by a lessor, after the lessee had committed a breach of his covenants, such as would authorize the lessor to declare a forfeiture, would not be a waiver of the forfeiture if the lessor was ignorant of such breach at the time of the acceptance of rent.

Appeal from St. Louis Land Court.

The facts sufficiently appear in the opinion of the court.

Knox & Kellogg, for appellant.

I. The court erred in striking out a portion of the answer in this case. The first instruction given, on motion of the plaintiff, is erroneous. The lease was forfeited only from the time the lessor declared it forfeited. The stipulation with respect to double rent was a penalty, and not liquidated damages. (Sedg. on Dam. 398, 421.) If Walker knew of the alterations when they were being made, and assented thereto, he should not be permitted to claim a forfeiture. Defendants' instructions should have been given.

Todd and Garesché, for respondent.

I. The matter stricken out was not a defence. It was properly stricken out. (8 Mo. 161; 17 Mo. 577; 2 Story on Contr. § 669.) To make an acceptance of rent by the lessor a waiver of a forfeiture, the lessor must know of the wrongful act. (Taylor on L. & T. 497; 2 Platt on Leases, 468, 473.) The court committed no error in giving or refusing instructions. The verdict was only for the double rent from the time of forfeiture to the time of giving up possession. There was no evidence of Walker's assenting to the alterations.

EWING, Judge, delivered the opinion of the court.

This was an action for the possession of certain premises leased by the plaintiff to the defendant in the city of St. Louis, alleged to be unlawfully detained, and for double rent from the date of the unlawful detention and for damages.

One of the covenants on the lease is that the lessee would not make any alterations in the premises, which the petition alleges was violated, and by reason thereof the term was avoided by the plaintiff and possession demanded. The answer denies that such alterations were made as would entitle the plaintiff to enforce a forfeiture, and alleges that when the lease was made, it was expressly agreed that any such alterations as should not injure said tenement, and which might be again so changed as to return the tenement to the condition it was in when leased, should not be deemed a violation of the covenant against alterations. This part of the answer was, on motion of the plaintiff, stricken out, and, we think, properly. It was an alleged parol agreement, contemporaneous with the execution of the lease, varying its terms, and so qualifying the covenant with regard to alterations as to make it entirely different.

Several points arise upon the instructions given and refused, which will be noticed in their order. The plaintiff maintains that, if the covenant of the lessee respecting alterations was violated, he was entitled to the possession of the premises from that time, and to damages for withholding the possession at the rate of one hundred and fifty dollars per month from the time of making such alterations to the time of the delivery of the possession, and an instruction embracing this proposition was given for the plaintiff. The lease says that in case any of the covenants are broken the term shall become null and void at the option of the lessor or his representatives, and that he may enter into and take full possession of the premises; also that the lessee will pay double rent for all the time the lessor or his representatives are kept out of possession after the expiration of the term, either by limitation or forfeiture. The said double rent to be paid daily. The rent reserved is seventy-five dollars per month, payable the first of each month.

Upon the first point involved in the instruction it is insisted by the defendant's counsel that the charge of the court is erroneous in saying that the lease was forfeited from the time the alterations were made; whereas no forfeiture could be incurred until the lessor declared it to be...