Hoodenpyle v. Tactor Industries, Inc. , 1979 Mo. App. LEXIS 2698 ( 1979 )

On Motion for Rehearing

PER CURIAM:

In their motion for rehearing or in the alternative, transfer to the Supreme Court, appellants, the Hoodenpyles, contend that the opinion herein is in error in its holding that there was no abandonment of the leased premises by Tactor. For the period prior to November 26, 1974, whether Hoo-denpyles had a constructive possession upon which they could base their action in trespass against Southgate turns, of course, upon whether there was an abandonment of the leased premises by Tactor.

All there is in this case is Tactor’s failure to pay rent, and Hoodenpyles’ demand or demands for past due rent.' There is no evidence at all that the Hoodenpyles did any act to effectuate their right of reentry and forfeiture of the lease without legal process. It is said further to the above quotes in the opinion at 51C C.J.S. Landlord & Tenant § 125(4), p. 402, with regard to acceptance of an abandonment of a lease, “There must, however, be some unequivocal act on the part of the landlord which unmistakably evinces an intention on his part to terminate the lease and the relationship of landlord and tenant; * It is significant in this case that the Hoo-denpyles did not pursue the alternative course available to them under paragraph 18 of the lease (set forth above in the opinion) upon default in payment of rent, vacation or abandonment, to “re-enter the premises and take possession thereof, with or without force or legal process and without notice or demand, * * *.” Instead they elected the remedy of a landlord’s complaint. As noted, the lease continued to be in force, with its attendant right of possession in Tactor, up to November 26, 1974. That lease and its attendant possession stood as a bar to the Hoodenpyles’ trespass action against Southgate, regardless of the reason the latter was on the premises prior to November 26, 1974. The baré demands for rent arrearage, without other acts showing an intention to terminate the lease prior to that date, cannot give rise to the requisite possessory interest in order to maintain an action in trespass.

Appellants’ motion for rehearing is overruled; their motion to transfer to the Supreme Court is denied.

Respondent Southgate’s motion for rehearing is overruled; and its motion to transfer to the Supreme Court is denied.