Lehman v. Nolting

Ellison, J. — The defendant is sued as guarantor of the payment of rent agreed upon in a lease of real estate for a term of three years. Judgment was given for defendant in the trial court. The lease was by writing under seal and was executed for the lessor, by an agent. The agent had no written authority. The lease being for a term of more than one year and the agent who executed it not having authority in writing,,the estate created was an estate at will only, by force of section 5182, of the statutes of 1889. Hoover v. Pacific Oil Co., 41 Mo. App. 317. By the lessee’s entry and payment of monthly rent, this estate at will was converted into an estate from month to month. Ibid. The contract of lease was therefore not void, since it created an estate .at will, which, upon entry and payment of rent per month, as therein provided, made a tenancy from month to month. The defendant guarantor will be held to have known the law and therefore held to know the legal nature of his undertaking. He, of course, contracted under the assumption that the lessee would enter the premises and pay rent as provided by the lease. And knowing that such action on the part of the lessee made of him a tenant from month to month, he guaranteed the faithful payment of such rent under such tenancy. , His guaranty was confined to the payment of rent as agreed in the lease. The lease, as just shown, is a valid lease from month to month, the evidence having shown an entry and payment of rent by the month. The guaranty, therefore, is a guaranty of payment of [552] rent agreed to be. paid in a lease creating a tenancy from month to month. It is, however, claimed that the lease is under seal and could not be a valid lease, unless the agent’s authority was also under seal. We can not see the force of ■ this as applied to the paper in controversy. It was not necessary to its validity, as above indicated, that it be under seal, and in such case, though in fact under seal, the agent’s authority need not be under seal. Schenetze v. Bailey, 40 Mo. 69; Mechem on Agency, secs. 95, 141. Disregarding the seal, there was merely a simple contract of lease where no written authority to the agent is essential to its validity. Story on Agency, sec. 50. From the foregoing, it follows that the judgment should be reversed and the cause remanded. All concur.