Calvert v. Hobbs , 107 Mo. App. 7 ( 1904 )

ELLISON,-J.

Early in 1903, defendant (in writing) leased a farm of one Girdner for a term of three years. He then sublet a house and a small tract of land (a part of the farm) to plaintiff for one year, but without the written consent of Girdner which the written lease expressly required. Defendant then without good cause prevailed upon Girdner to oust plaintiff by procedure under the statute. Girdner being absent in another State, defendant was the active manager of the ousting proceeding and employed the attorneys therein, though no party to the record. Plaintiff filed an answer to the proceeding, in which he alleged that Girdner should be estopped from taking advantage of the lease requiring written consent and should not be allowed to turn him out, for the reason that he, plaintiff, told Girdner that defendant had sublet to him the portion of the premises referred to and that Girdner told him it was all right, that defendant had a right to sublet it. That plaintiff relying upon this assurance did not look for other property which he might then have rented, and that it was, then, at time of the ouster proceedings, too late to secure another place. Plaintiff’s defense did not prevail and he was turned out of possession. He thereupon brought the present action before a justice of the. peace wherein he set up in his written statement as his cause of action the facts just stated as being in his answer to the ouster proceedings, viz: as to defendant’s subletting to him and then procuring Girdner to- dispossess him, but omitting any reference to the estoppel against Girdner.- He obtained judgment but on appeal to the circuit court the judgment was for defendant and plaintiff thereupon brought the case here.

At the trial in the circuit court it was ruled that the ouster proceedings of Girdner against this plaintiff were res adjudicata in this case, and a verdict was directed for defendant.

We do not see' wherein there is any legal ground for holding that the ouster proceedings of Girdner against this plaintiff could he an adjudication of plaintiff’s right of action against this defendant. Conceding that this defendant was the moving spirit in the ouster proceedings and that he managed the same for Girdner, that adjudication did not touch or relate to the cause of action here pending. Plaintiff was defeated in that action and dispossessed of the property for the reason that he did not have Girdner’s written consent to the subletting and that the latter was not estopped. He did not litigate the subject-matter of his present action, and he could not have done so had he desired. His complaint now is that defendant leased him the premises which would have afforded him a place to earn a living if acquiesced in by Girdner, even though the letting was not binding if objection was made. And that in this condition of affairs, defendant procured Girdner to break into the arrangement and deprive plaintiff of the place, which he had relied upon keeping, when it was too late to get another. We have just stated that the subject-matter of the present action was not litigated in the ouster proceedings. We, of course, do not know what ground was actually cover ed by that proceeding. Prom glimpses which this record gives it is probable that it spread over considerable area. But we base our statement on the written pleadings in that case. The case stated for the plaintiff therein was an unlawful detainer. The case stated for defendant therein, in his answer, was that he rented of Hobbs, this defendant, and that Girdner, the plaintiff therein, was estopped to deny his right to subrent of Hobbs by inducing and telling him to do so. Girdner had no .right to litigate Hobbs’ right in that action. It was no concern of his whether the defendant therein (the plaintiff here) had properly lived up to his contract or agreement with Hobbs. If this plaintiff intruded on a part of Hobbs’ rented land without right, Hobbs was the party to proceed against him and not Girdner.

There was no authority to try Hobbs’ case in Girdner’s suit. We do not find room for application of authorities cited on res ad judicata in defendant’s favor to the facts of this case. The only questions properly concluded by the other case are, that Girdner did not estop himself from showing that he did not give written consent; and that plaintiff was dispossessed in a suit managed and instigated by defendant. It appears that defendant made affidavit to the complaint and he has admitted that he employed the attorneys and managed the case.

The question remains: Is the case stated by plaintiff a legal cause of action? The case is, in short, stated to be that defendant sublet the premises to him by agreement of which he performed his part and led him to believe that he could occupy them under the letting. But that after it was too late to get other lands, he procured Girdner, as landlord, to take advantage of the lack of his written consent and to dispossess him. If the case can be substantiated by evidence he is entitled to recover.

The judgment is reversed and the cause remanded.

All concur.