Charless v. Froebel , 47 Mo. App. 45 ( 1891 )

Biggs, J.

Where there is a lease for a term of years which contains an express covenant on the part of the lessee to pay the rent reserved, will the mere assent of the lessor to an assignment of the lessee’s interest in the lease, and the receipt by him from the assignee of a portion of the subsequently accruing rents furnish any evidence of a novation, or the release of the lessee from his obligation to pay rent? We have such a state of facts here, and the question suggested is the only one involved.

On the first day of January, 1889, the plaintiff leased to the defendant for the period of three years the premises known as number 18, South Fifth street, in the city of St. Louis. The lease was executed and sealed by both parties, and it contained an express covenant on the part of the lessee to pay an annual rental of $3,200, payable in equal monthly installments of $260.66. The defendant entered under the lease, and continued to pay the rent until the fourth day of May, 1889. On the last-named day, the defendant, by and with the consent of the plaintiff, assigned all of his rights under the lease to the firm of Schwietzer & Mohr. The assignment was written by a clerk in the office of the plaintiff’s real-estate agents, and it was executed in their presence. It is as follows: “For value received I hereby assign, sell and convey all my right, title and interest in and. to the within and foregoing lease to Schwietzer & Mohr, and said Schwietzer & Mohr hereby accept said lease and assume all the responsibilities of the party of the second part therein. Witness,” etc. It was admitted that, after the assignment was made and until December, 1890, the plaintiff rendered monthly bill's for the rent to Schwietzer & Mohr; that an account was kept on the books of the plaintiff’s agents against Schwietzer & Mohr, and that the rent was promptly paid by them until December 1, 1890, at which time they became insolvent; that no demand for rent was made upon, the defendant until February, 1891, when the rent for December, January and February was demanded, and he refused to pay it on the ground that he had been released from his contract. The present action was brought to recover this rent. The execution of the lease and the non-payment of the rent being admitted, the defendant at the trial claimed, and was granted, the affirmative of the issue, and at the close of his evidence the court instructed the jury to find for the plaintiff, which was done, and judgment entered accordingly. The defendant appealed.

We have examined with care the defendant’s evidence in respect of what took place and what was said at the. time the assignment was made. The defendant himself would not testify either in terms or effect that he demanded to be released, or that the plaintiff’s agents agreed to release him from his covenant to pay rent. There is but little if any doubt that the defendant thought that there was a complete novation or substitution of his assignees to his liabilities under the lease, but this did not make it so. The question is, did the consent of the plaintiff to the assignment, and the receipts by her of subsequent rents from the assignees amount to a release of the defendant ?

It is the generally accepted doctrine that, when a tenant occupies premises under an implied letting, or when the contract of letting is express, but contains no' express covenant to pay rent other than that implied from occupancy, the right of the landlord to collect rent arises out of a privity pf estate only. When, however, the contract of letting is express, and contains a covenant by the lessee to pay the rent reserved, then both privity of estate and privity of contract are established, and the right of the lessor to enforce the payment of rent is then of a two-fold nature ; that is, by reason of occupancy by the lessee, which establishes .privity of estate and by reason of the covenant in the lease which establishes privity of contract. In cases of implied letting, or where there is no express covenant, whenever there is a change of possession with the consent of the lessor, the lessee is thereby discharged from the further payment of rent, because the privity of estate, which is the only relation existing in such cases between the lessor and lessee, is completely destroyed by change of occupancy. But not so where the lease contains an express covenant to pay the rent. In such a case the privity of estate may be destroyed by the consent of the lessor to an assignment, but, in the absence of a contract of release, the lessee still remains bound, on his covenant, to pay the rent. Clemens v. Bloomfield, 19 Mo. 118; Whetstone v. McCartney, 32 Mo. App. 430; Hunt v. Gardner, 39 N. J. L. 530; Damb v. Hoffman, 3 E. D. Smith, 361; Pfaff v. Golden, 126 Mass. 402; Taylor v. DeBus, 31 Ohio St. 468.

We take it that the defendant’s counsel does not controvert the law as above stated, but his contention is, that the consent of the plaintiff to the assignment and the receipt of rent from the assignee, are sufficient to authorize the submission of the question of release. So far as our research has gone, this position seems to be against the adjudicated cases outside of this state, and we think it finds only an apparent support in one decision of our supreme court.

In the case of Taylor v. DeBus, supra, the court held that a lessee was liable to pay the rent reserved under a lease for a- term of years, though the rent accrued after the lessee had assigned all interest in the leasehold estate, and after the lessor had received rent from the assignee. In the opinion of the court the consent of the lessor to the assignment, and the receipt of rent, did not amount to a novation or release of the lessee.

In Damb v. Hoffman, supra, the court decided that the acceptance of rent by the lessor for the assignee did not bring the case within the rule, that the creation of a new tenancy and the substitution of a new tenant under an agreement to that effect amount to a surrender, and discharges the former lessee.

In Pfaff v. Golden, supra, it was decided that an assignment by the lessee of his interest in the lease did not relieve him from his liability on his covenant to pay rent, although the assignee of the lessor consented to the assignment.

In Hunt v. Gardner, supra, the supreme court of New Jersey in a carefully-considered.case said: “To ascribe the effect of a surrender to the mere act of the landlord accepting the assignee as his tenant, and receiving rent from him, would be going beyond the precedents. To warrant the inference that the original lease had been anulled, the facts ought to be of an entirely conclusive character.”

Many other cases of equal weight and authority could be cited in support of the action of the trial court, but we deem it unnecessary.

The defendant relies on the cases of Matthews v. Tobener, 39 Mo. 115; Hutcheson v. Jones, 79 Mo. 496, and Prior v. Kiso, 81 Mo. 241, as establishing a contrary rule. In the Matthews case, the notice of the lessee’s intention to surrender the premises was followed by the re-renting of the premises by the lessor himself to another tenant without the knowledge or consent of the lessee, and this was held by the court to amount to an eviction, which would necessarily release. the lessee from the payment of subsequent rents.

In. the Hutcheson case there were other facts and circumstances, aside from the receipt of rents by Hutcheson from the assignee, which had a tendency to prove that a contract of release had been entered into. Besides, there was no express covenant to pay rent, and the mere consent of Hutcheson, the lessor, to a change of tenants released the defendant, who was the original lessee.

In Prior v. Kiso, supra, the plaintiff leased to John and Herman Kiso for the term of five years his, farm, grist mill, blacksmith shop and ferry. Contemporaneous with the lease the Kisos, with the other defendants as sureties, entered into a separate contract, in which the prompt payment of the rent was guaranteed. The action was upon this contract. It was alleged in the separate answer of John Kiso that the plaintiff failed to deliver the entire possession of the premises, and that, after the expiration of fifteen months, he refused on this account to be further bound by the lease; that thereupon with the consent of the plaintiff he quit the possession, and Herman Kiso alone was thereafter treated as the tenant. The opinion states that John Kiso introduced evidence tending to prove these averments, but the evidence is not set out. We find nothing in the opinion to indicate that there was no evidence of a release, other than the assent of the plaintiff that John should quit the possession, and that he afterwards collected the rent from Herman Kiso. The release of John Kiso was not predicated on an assignment of the lease to his brother, but it was claimed that as to him the lease was canceled by agreement, because the plaintiff had failed to deliver the entire possession of the leased premises, and that John refused to carry out the lease on his part for that reason. His answer and the instructions asked by him show that his release was tried on that theory. The only thing having the remotest tendency to show to the contrary of this is a quotation from the opinion of the court in the case of Kerr v. Clark, 19 Mo. 132, to the effect that “an actual and continued change of possession by the mutual consent of the parties will be taken as a surrender by operation of law, whether the possession is' delivered to the landlord himself or to another.” In the Kerr case the court was dealing with a tenancy from year to year under an implied letting, and the court correctly stated the law in such cases. This quotation under all the authorities was inapplicable to the facts in the Prior case, and it is fairly inferable that it was inadvertently inserted. We are very much fortified in this inference by the fact that Judge Philips, who wrote the opinion in the Prior case, was a member of the Kansas City Court of Appeals, and concurred in Judge Ellison’s opinion in the case of Whetstone v. McCartney, supra. We cannot think, unless further advised by the supreme court, that it intended to depart from a rule so well established by all the precedents.

With the concurrence of the other judges, the judgment of the circuit court will be affirmed.