Weigle v. Rogers

• Decision Date: 19 June 1919
• Docket Number: No. 2451.,2451.
• Citation: 213 S.W. 501,202 Mo. App. 520
• Parties: WEIGLE v. ROGERS.
• Court: Missouri Court of Appeals

213 S.W. 501

202 Mo. App. 520

WEIGLE v. ROGERS.

No. 2451.

Springfield Court of Appeals. Missouri.

June 19, 1919.

Appeal from Circuit Court, New Madrid County; Sterling H. McCarty, Judge.

Action by Joseph Weigle against William M. Rogers, who counterclaimed. From a judgment for plaintiff, and for defendant on his counterclaim, plaintiff appeals. Affirmed.

Riley & Riley, of New Madrid, for appellant.

George H. Traylor, of New Madrid, for respondent.

BRADLEY, J.

This is a suit by attachment, instituted by a landlord against a subtenant or assignee of the original lessee, under the provisions of the landlord and tenant statutes. Sections 7896 and 7900, R. S. 1909. A plea in abatement was filed, but later withdrawn, and the attachment sustained.

This suit is on the merits. The petition charges that the plaintiff herein leased certain lands in New Madrid county for the year 1917 to one L. F. La Font for $346.25; that La Font assigned or subleased the premises to the defendant Rogers; that Rogers entered upon the lands, and planted, cultivated, and harvested the crops grown thereon during the year 1917. The answer admits that defendant subleased from La Font for the year 1917, and denies generally the other allegations; and for a further defense defendant interposed a counterclaim, in which he avers that plaintiff agreed to dig a ditch across said lands, failed to comply with this agreement, and that, by reason of plaintiff's failure to dig said ditch, defendant lost about 40 acres of his crop from rainwater; that he was damaged by reason of plaintiff's failure to dig the ditch in the sum of $1,680. The reply denied generally the new matter.

The cause was tried before the court and a jury, and resulted in a verdict in favor of plaintiff in the sum of $271.25 on his demand for rent (plaintiff had collected $75 on the rent), and in favor of defendant on his counterclaim in the sum of $246.25, and for the plaintiff on the whole case in the sum of $25 the difference between the verdict for the plaintiff on his demand and for defendant on his counterclaim. On this verdict judgment was rendered in favor of plaintiff in the sum of $25. Unsuccessful in obtaining a new trial in the court below, plaintiff prosecutes this appeal.

There is no controversy about plaintiff leasing to La Font in the first instance, and La Font assigning or subleasing to defendant, and there is no controversy about the consideration for the lease. The evidence offered by defendant tended to show that plaintiff agreed as part of the renting contract with La Font that he (plaintiff) would dig a ditch on the premises in order to protect the crops during the year 1917; that by reason of the excessive rains during the crop season of 1917 defendant's crops were partly drowned out and damaged; and that, if a ditch had been dug as agreed, his crops would have been preserved. Plaintiff contended that he only agreed with La D'ont that, if he (La Font) would find somebody to dig the ditch, he (plaintiff) would pay for it and that he at no time obligated himself to have the ditch dug. There was some testimony to the contrary however, and as the issues were submitted the jury found that plaintiff agreed with La Font to dig the ditch.

The vital and decisive issue, as we understand the record, is whether defendant under the facts disclosed can in any event maintain his counterclaim. The lease from plaintiff to La Font was for the term of one year. Under section 7880, R. S. 1909, it is provided that no tenant for a term not exceeding two years or at will or by sufferance shall assign or transfer his term or interest to another without the written assent of the landlord. It is not claimed that such assent, written or otherwise, except by ratification was obtained by La Font to assign or transfer the premises to the defendant.

Plaintiff urges that La Font subleased to defendant, while defendant urges that La Font assigned to him. There is a distinction between a "sublease" and an "assignment." This distinction, however, seems in some instances to be more shadow than substance. It appears that in a sublease proper the sublessor retains some" right or interest in the premises subleased, while in an assignment proper the assignor parts with all his interest of whatever kind or character. St. J. & St. L. Ry. Co. v. St. L., 1. M. & S. Ry. Co., 135 Mo. loc. cit. 192, 36 S. W. 602, 33 L. R. A. 607. It is pointed out in this case that if the sublessor passes the whole of his term or interest, it must be held to be an assignment, and that privity of estate is established, and the sublessee becomes bound by the covenants of the original lease irrespective of his intentions. Likewise the original lessor would be bound on any covenant running with the land. There is no contention that there is any privity of contract between plaintiff and defendant in the case at bar, as plaintiff made no contract with the defendant of any kind or character. If, however, the covenant to dig the ditch runs with the land, and defendant obtained the whole interest of La Font, whether it be called a sublease or an assignment, then there would be privity of estate between plaintiff and defendant if the sublease or assignment is valid.

La Font, the lessee, did not sublease or assign to defendant until some time after the first of the year, and the sublease or assignment was oral, and the facts, therefore, are on all fours in that particular with Roth Tool Co. v. Champ Spring Co., 93 Mo. App. 530, 67 S. W. 967, where it is...