Walker v. Mauro
| Decision Date | 31 October 1853 |
| Parties | WALKER, Plaintiff in Error, v. MAURO, Defendant in Error. |
| Court | Missouri Supreme Court |
1. An averment that a party “used and occupied premises with the permission of the owner, thereby becoming his tenant,” is a sufficient averment of indebtedness.
2. An order drawn on the whole of a debt is an equitable assignment of it, and under the new practice, the party in whose favor the order is drawn may sue for the debt in his own name.
Error to St. Louis Law Commissioner's Court.
L. K. Kinsey, for plaintiff in error.
I. Neither an agreement to pay rent, nor an express contract with the tenant, nor reservation of rent need be alleged or proved; an understanding will be implied, and an agreement to pay what the premises are fairly worth understood, wherever a permissive holding is established. (Taylor on Landlord and Tenant, 294, 295; O'Fallon, adm'r, v. Boismenue, 3 Mo. 286.)
II. In cases where an order is drawn for the whole of a particular fund, it amounts to an equitable assignment of that fund, and after notice to the drawee, it binds the fund in his hands. (Bayley on Bills, 36, 37; Mandeville v. Welch, 5 Wheat. 277.)
P. C. Mauro, in proper person.
I. The petition does not show that the defendant was indebted to Scofield & Ferris. It merely states that he used and occupied the American Hotel for fifteen days with their permission. No express contract to pay rent is alleged, nor are any facts stated, from which a contract could be implied. For aught that appears, he may have occupied as their agent or at their solicitation.
II. No assignment to the plaintiff is shown. An unaccepted order is no assignment.
The petition in this case states the fact that Scofield & Ferris were indebted to the plaintiff, and with sufficient distinctness alleges that Mauro, by being the tenant of S. & F. became indebted to them in the sum of $150 for rent. It next states, that S. & F. assigned to plaintiff the debt of the defendant on account of the rent due to them, and that such assignment is evidenced by an order drawn by S. & F. on the defendant for the whole amount due, which order the defendant refused to pay. The petition was demurred to and the demurrer sustained.
1. The allegation of Mauro's indebtedness to Scofield & Ferris is, that Mauro, with their permission, entered into and took possession of a building (which had been leased to Scofield & Ferris) and used and occupied the same for the period of fifteen days, thereby becoming the tenant of S. & F. and indebted to them for the use and occupation thereof, in such sum as the same was worth, which is averred to...
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