Smith v. Thurston

Ellison, J. I regard this case as being directly controlled by that of Prior v. Kiso, 81 Mo. 241. There was evidence in this case tending to show ? that plaintiff agreed to pay to Thurston one hundred dollars if he would withdraw his answer and make no defence to the injunction. Plaintiff’s proposition was accepted and the answer of Thurston was withdrawn, and judgment taken against him by default, the one hundred dollars having been paid by paintiff. Here, then, when the lease had yet to run from the September term of the circuit court till April 15, following, plaintiff, by bargain with the principal in the note, without the knowledge or consent of these defendants took back the premises. Judge Philips, in the case referred to in speaking of the release of the securities for the payment of rent by the act of the lessor, says: “So it affirmatively appears from the plaintiff’s side, undenied or uncontradicted by the other, that the contract assumed by the defendant sureties, Prior, by arrangement between him and the Kisos, or one of them, bought back from the lessees a material portion of the demised premises. It was material, confessedly, by his own act, in buying it back. Thus was a part of the land leased, which was a part of the security the sureties had when they executed the collateral undertaking, returned to the lessor. There was no evidence of their assent, but on the contrary, they testified it was unauthorised by them. * * * On this proof, made by the plaintiff, the defendant sureties, were entitled to an instruction to find for them. Instead,of this, however, the court instructed the jury that the fact that John and Herman Kiso sold to plaintiff a portion of the land leased to them, is no defence to any of the defendants in this action. This was error committed against the surety defendants. Superadded to which is the further undisputed fact, that when the lease, under the terms of the contract, had more than a year thereafter to run, the plaintiff took back the whole premises, and held them thereafter. There was no evidence that the sureties assented to this. That fact releases them also.” For the error in giving the instruction for plaintiff the cause will be remanded for another trial. In con [58] sideration of this fact we will state the views of this court on the other branches of the case as it has been tried. Taylor on Landlord and Tenant (6 Ed.), section 304, says : “The principal covenant on the part of the landlord, is, that his tenant shall have the quiet Enjoyment and possession of the premises during the continuance of the term.” And again, speaking of this covenant, whether it be express or implied, says in section 305/ “Any interference with the possession of the lessee, more than a mere trespass, by the lessor himself, will amount to a breach of the covenant in whatever form it may happen.” Again, in section 378, he says : “The quiet enjoyment of the premises without any molestation on the part of the landlord, is an implied condition on which the tenant is bound to pay rent. Rent is something given by way of compensation to the lessor for the use of the land, and consequently the landlord’s claim for rent depends upon this, that so far as he is concerned, the land is possessed and enjoyed by the tenant, during the term specified in his contract; for the tenant ought not to make a return for the thing which he- has not. If, therefore, the tenant be at any time deprived of the premises by the landlord’s agency, the obligation to pay rent ceases, because his obligation has force only from the consideration, which is the enjoyment of the premises.” In Wood’s Landlord and Tenant, on page 564, it is declared: “Whether a lease contains a covenant for quiet enjoyment or not, is, so far as the rights of the tenant are concerned, immaterial, as, in all cases, unless otherwise expressly provided, the law will imply such a covenant. The rule is, that a covenant for quiet enjoyment is implied in every mutual contract for leasing land, by whatever form of words the agreement is made, and for the breach of such covenant, occasioned through the fault of the lessor, the lessee has his remedy for such damages as result to him therefrom.” This statement of the law is well fortified by the de [59] cisions on the subject. Must it not likewise be understood /and does not this statement of the doctrinepre-suppose that the lessee is doing no act whereby he-would compel the lessor, in order to preserve the estate, to interfere with the quiet enjoyment % Shall it be said that a lessor must stand by and permit his lessee the-quiet enjoyment of pulling down his houses, or of devastating his timber, on pain of losing his contract ? If this were true, it would offer a constant inducement to-every lessee weary of his lease to - so conduct himself as. to force the interposition of the courts by the writ of injunction. Reason would say that if the lessee, himself, by breach of the express and implied terms of the lease compels the lessor to interfere, even to his expulsion, should that be necessary to preserve the estate, will not bar the obligation to pay the rent agreed. The cases requiring the tenant to be evicted from the premises in order to save the property from irreparable injury would be rare, for, in most instances, the lessee would be-merely inhibited from committing the acts complained of, or, as in this case, the injunction would be that he-cease operating or using the property until it had been put in the requisite order or condition. Of course these-remarks would not apply where the lessor has obtained possession of the property for any other purpose than its preservation, or should use it for his own benefit, or do other act inconsistent with the tenant’s legal rights under the lease. It is said that “the consideration of the lessee’s undertaking to pay. rent is the quiet, peaceable, and indisputable possession of the premises leased, and is in its-nature a condition precedent to the payment of rent.” Jackson v. Eddy et al., 12 Mo. 209. It is not meant by this that the lessee shall actually enjoy the possession; for he may wilfully, without cause or excuse, abandon the possession, or refuse, in the first instance, to take it. So long as the lessor commits no breach of the lease and the want of a quiet, peaceable and indisputable possession is attributable solely to the lessee, the obligation to [60] pay rent can be enforced against the lessee and his sureties. So, then, in this case the mere fact of plaintiff enjoining Thurston will not excuse the payment of rent, and does not work a failure of consideration. For, if the facts alleged in the bill were true, plaintiff had a right to interfere. That part of defendant’s instruction numbered two, in regard to the withdrawing of Thurston’s answer, and giving up possession in consideration of the payment of one hundred dollars, was proper. The conclusions, however, stated in the latter part, are not necessary to aid 'the jury, and tend somewhat to complicate it. As to what would be a fraud on defendants in this case, and especially what would be required to establish a rescission of the note, are questions that need not be put to the jury. So with the fourth instruction ; it is not necessary to conclude it with a statement that such an agreement would be a rescission of the contract. It is enough to tell the jury that if they believe the matters set forth in the instruction, they should find for defendants. A rescission of a contract, as understood in the law, is not applicable to the facts in this case. The third instruction, as framed, under the views above expressed, was properly refused. The judgment is reversed and the cause remanded. All concur.