Mooers v. Martin

Thompson, J., delivered the opinion of the court. This is a proceeding under the landlord’s and ten — 655 — •ant’s act for rent in arrear and restitution of premises. The complaint shows that the premises were rented for one hundred dollars per month, payable in advance on the first day of every month. The suit was commenced ■on October 21, 1885, and the demand is for the unpaid rents for the months of August and September. It appears that on the same day the plaintiff commenced a •similar proceeding for the October rent, but this was afterwards dismissed in the circuit court. On the defendant’s appeal from the justice, this cause was heard by the court without a jury, and judgment was given for •the defendant. Uncontradicted testimony showed that ■the defendant had vacated the premises in controversy ■on December 12, 1885, before the trial of this cause in the circuit court, and that the plaintiff had since been in possession of the same. The court refused two instructions requested by the plaintiff, the substance of which was that, under the facts above recited, if the rent payable August 1, September 1, and October 1, had been ■demanded of the defendant by the plaintiff, and payment refused, the plaintiff could maintain this action for the rent, payable August 1 and September 1, and that it was no bar to her right of recovery that she did not set ■forth in her affidavit that the rent payable October 1 had been demanded and not paid. In refusing these instructions, and in rendering judgment for the defendant upon the facts above set out, about which there was no controversy, the learned judge .seems to have proceeded upon the case of Wolff v. Shinkle (4 Mo. App. 197), and kindred cases, which hold that, in a proceeding by landlord’s summons under the statute, it is necessary for the plaintiff to demand and to, •state in his affidavit the exact amount due, in order that the tenant may prevent a forfeiture of the term by paying this amount. Vaughn v. Locke, 27 Mo. 292; Cook v. Decker, 63 Mo. 328. The statute in terms requires that the statement shall set forth “the amount of rent — 656 — actually due.” Rev. Stat., sect. 3098. But neither the terms of the statute nor these decisions go so far as to oust the plaintiff of all remedy because, although he has demanded the actual amount of rent due, as the plaintiff did in this case, he has failed to state in his affidavit that rent was due for the month which had not expired at the time óf the bringing of the action. While a party might justly be held, by not including all that is due to him on one account, in one action, to have waived the residue, and while the tenant, by tendering the two' mpnths’ rent sued for in this action, would clearly have saved a forfeiture, yet we do not believe that there can be found in any civilized system of jurisprudence a principle so absurd as that the plaintiff is to be ousted of ail remedy, whether in an ordinary proceeding, or in a proceeding to enforce a forfeiture, merely because he does-not sue for all that is due him. Such a principle would turn the indulgence which a creditor might choose to extend to his debtor, into a sword to strike down the rights' of the creditor. We do not believe that our supreme court intended so to decide, either in Vaughn v. Locke, or in Cook v. Decker (supra). In Vaughn v. Locke, the defect in the statement was, that the landlord had demanded, and was suing for more than was due; and in Cook v. Decker, the objection to the statement was, that the rent; was payable in specific property (lead ore), and that it was not clear, from the statement, what was the amount' due; and the court, while quoting the language of Judge Napton in Vaughn v. Locke, the substance of which was' that the plaintiff must demand, in his affidavit, the amount really due, held that he had done so in the particular case. The language used by Judge Hayden in Wolff v. Shinkle (supra), admits of the construction that if the landlord make the mistake of demanding and suing for a less amount of rent than is actually due, he' thereby waives a forfeiture. The facts of that case did not necessarily call • for a decision of that point; if they — 657 — had done so, we would not hesitate to overrule that case on that point. As' it is, we merely express our disapprobation of any language asserting that principle. But we reaffirm the principle laid down in Wolff v. Shinkle, that by accepting payment of rent for periods of time subsequent to that for which the plaintiff brings the landlord’s summons, he thereby waives the right to' the summary remedy given by the statute, and the rent due for the preceding periods loses its distinctive character as rent and becomes a mere debt. We reaffirm the doctrine of Horn v. Peteler (16 Mo. App. 438), that the same effect follows where the landlord accepts the tenant’s negotiable note for rent accruing at a date subsequent to that for which he brings his landlord’s summons under the statute. The only remaining question is whether, by reason of anything disclosed by the evidence, there has been such a waiver in this case. We can see no evidence tending to show such a waiver. The evidence shows that the plaintiff demanded all the rent due (including that for the month of October, payable on the first of the month, though not entirely earned), and that she brought a separate landlord’s summons under the statute for the October rent. We can see in this no purpose whatever to waive her rights under the statute, and to allow the rent due for August and September to lose its distinctive character as rent and become an ordinary debt. The institution of the suit for the August and September rent was a distinct assertion of forfeiture, and it is not apparent how the assertion of a still further forfeiture, for non-payment of the October rent, although such assertion may have been erroneous, was a waiver of the prior forfeiture. She was suing for two things, as she might do under the statute, restitution and rent due. As she was claiming a forfeiture, it was by' no means clear that she could include in her suit rent due by the'con — 658 — 'tract, but not earned. Forfeitures are not favored, and we know of no principle on which, a landlord can forfeit the term for unearned rent payable in advance, and at '■the same time recover the rent. He can, indeed, bring ;an ordinary action for the unearned rent and recover it, 'but this would not prevent him from allowing the rent to 'be earned by allowing the tenant the use of the premises ‘Until it should be earned. The plaintiff, then, was confronted with this diíemma : either to include in her statement in this case the October rent, at the risk of having her whole proceeding fail by reason of having sued for too much, or not to include it. She chose not to include it. And because she made it the basis of a contemporaneous action under the statute, which action was improvidently brought and subsequently dismissed, it is argued that she has waived her right to maintain this action. Such a conclusion is quite untenable. Aside from these facts, the defendant himself gave evidence, not contradicted, to the effect that before the trial in this cause in the circuit court, he had surrendered possession of the premises to the plaintiff, and that the plaintiff had ever since then been in possession. Upon this state of facts, all that tip judgment of the court could have given her was the two months’ rent for which she was suing. The judgment which was entered had, then, merely the result of turning her out of court because she was suing for two hundred dollars only, instead of suing for three hundred dollars. The whole substance of the defendant’s contention then is, that he was prejudiced in a legal sense because she did not sue him for three hundred dollars, instead of two hundred dollars. Why should she be obliged to sue for three hundred dollars instead of two hundred dollars, in order to have her writ of restitution, when the statute (sect. 3100, Rev. •Stat.) expressly gives her the right to sue for restitution without suing for any rent at all? — 659 — The judgment should he reversed, and judgment will be entered here for the plaintiff, upon the uncontradicted facts of the case, for the amount of rent demanded in her -statement herein, with interest, according to the prayer thereof. It is so ordered. Judge Bombauer concurs. Judge Lewis, dissenting, is of opinion that this decision is contrary to a previous decision of the supreme court. The cause will, therefore, be certified and transferred to the -supreme court, as directed by section six of the constitutional amendment, adopted on November 4, 1884.