Gary Realty Co. v. Kelly

PARIS, J. This is an action under our forcible-^ entry and unlawful-detainer statutes for the possession' of certain premises situate in Kansas City. Plaintiff had judgment for possession; for damages, assessed at two thousand dollars, which sum was doubled by the cou/rt; for future rents and profits, assessed at $650 per month, pending appeal and till possession be delivered to plaintiff, which sum was likewise doubled. Whereupon, defendants Kelly, LeMarquand and LeDoux appealed in the conventional way. The action orginated before a justice of the peace and was begun by filing a complaint which, formal parts and signature of counsel omitted, reads thus: “Gary Realty Company, a corporation, duly organized^ and existing according- to law, plaintiff, complains of E. P. Kelly, Paul LeMarquand, A. LeMarquand, O. LeDoux, P. G. Bonfils,-Harry H. Tammen and Empress Theatre Company, a corporation, defendants, and says that on the 29th day of October, A. D. 1915, and long-before that time he was in the lawful and peaceable possession of the certain premises situated in Kansas City, Jackson County, Missouri, described as the certain (formerly store) room at the northwest corner of* Twelfth and McGee Streets in said city, having a frontage of twenty feet and ten inches on. said Twelfth Street and extending back northward the full depth of Lot 134, Swope’s Addition in said city, and still further north beyond the north line of said lot, ap [456] proximately 16 feet, said room having been used as a part of the lobby of the Empress Theatre in the City of Kansas City, Kaw Township, of the County of Jackson, State of Missouri, and has ever since been and 'still is entitled to the possession thereof; that on the said 29th day of October,. 1915, the defendants wilfully and unlawfully hold over and detain possession of said premises or wrongfully and without force, by disseizin, obtained possession of said premises, and have ever since held and still hold possession- thereof “wrongfully and unlawfully; and although the plaintiff did, on the 30th day of October, 1915, demand in writing the possession of said premises of the defendants, they, the said defendants refused and neglected to quit the possession-thereof, to the plaintiff’s damage in the sum 'of two thousand dollars, Wherefore plaintiff demands judgment for the possession of said premises and- for said damages.” Thereafter, by certiorari under the statute defendants caused the proceedings to be removed to the Circuit Court of Jackson County. In the latter court, and at the December Term, 1915, semble, a stipulation waiving trial by jury was duly filed in the case. This stipulation, omitting formal parts and signatures of counsel, reads thus: “Come now the parties hereto and by their attorneys hereby stipulate and agree that the trial of this cause by jury is hereby waived and that said cause may be set for trial on any day during the first' week of January, 1916, term of court, or thereafter, according to the convenience of the court.” On the same day on which the above stipulation, was filed, defendants Kelly, LeMarquand and LeDoux filed formal answers, which consisted, in all pertinent parts, of (a) general denials, except of the fact of possession, which defendants Kelly, LeMarquand 'and LeDoux admitted; .(b) a plea of ownership and possession under a purchase by said defendants of the lease at [457] a sale by tbe receiver of tbe Empress Theatré Company, pursuant to an order of the circuit court; (cj a tender, as such tenants so in possession of all rent due according to the tenor of the instrument of lease-evidencing the term so purchased, and (d) a waiver of forfeiture by plaintiff of conditions broken, arising, it is averred, from the acceptance of the rent and the recognition of the receiver as plaintiff’s tenant. Defendants Bonfils and Tammen filed general denials, which included, of course, negation of the fact of possession. Thereafter, defendants Kelly, LeMarcjuand and LeDoux (who, since they alone have appealed, we shall hereinafter call 'defendants) filed a motion to require plaintiff to elect, for that the allegation' in plaintiff’s complaint that “the defendants wilfully and Unlawfully held over and detained possession of said premises, oy wrongfully and without force by disseizin obtained possession of said premises, and have ever since held and still hold possession thereof wrongfully and unlawfully” was “an attempt to charge the defendants with both unlawful detainer and forcible entry and detainer’^ and that “said causes of action being entirely separate and distinct can not under the law be charged in the same cause of action.” This motion to elect was overruled. Thereafter, on January 29, 1918, defendants filed a demurrer to the complaint, which demurrer, in addition to the customary allegation that the facts set forth in the complaint are not sufficient to constitute a cause of action, further averred “that several causes of action have been improperly united.” While this demurrer was overruled, plaintiff on the same day asked and was given leave to file an amended complaint within four days thereafter. Whether the demurrer, as the practice is, was overruled upon and because ’ of the request of plaintiff for leave to file an amended complaint does not affirmatively appear, since no reason is given in the record for the trial court’s action in this [458] behalf. Afterwards, and within the four days allowed by the court, plaintiff. filed an amended complaint in two cóunts. The first count charges the holding over of' the possession of- the premises wilfully and without force after the expiration of the term; while the second count charges the obtention of possession and the withholding thereof wrongfully and without force by disseizin after demand therefor made in writing. Since the court found in favor -of plaintiff upon the first count only, no necessity1 is seen for burdening this necessarily lengthy statement with a recital of the second count. But the first count is pertinent, since about it, as a storm center, rage well-nigh the whole of the contentions made. It reads thus: ‘ ‘ Comes now the complainant, Gary Realty Company, and ' for its first cause of action against defendants, states that complainant is and was at all times hereinafter mentioned a corporation^ organized and existing under the laws of Missouri, and complains to the above entitled court that on or about the 30th day of October, 1915, and at the time of the institution of this action, complainant had the legal right to the possession of the certain premises (together with the improvements thereon) situated in Kansas City, Jackson County, Missouri, and in Kaw Township, in said city, described as the certain room at the northwest corner of Twelfth and McGee Streets in said city, having a frontage of twenty feet and ten inches on said Twelfth Street and extending back northward therefrom, the full depth of Eot 134, Swope’s Addition in said city, and still further north, beyond the north line of said lot, approximately sixteen feet, said room having formerly been used as a store room, but more recently and at the present time being used as a part of the lobby of the Empress Theatre conducted by defendants in said city; that complainant has been ever since the date aforesaid and still is entitled to the possession of said premises [459] and improvements; and that defendants wilfully and .without force hold over the possession of said premises after the expiration of the time for which they were let to one H. C. Robertson and his assignee, Empress Theatre Company, (another and different corporation than the defendant of the same name) and also to one Cyrus Jacobs, Receiver, as a month-to-month tenant, and after demand, made in writing for the delivery of the possession thereof; and complainant says that it is ignorant whether or not defendants claim right to possession of said premises under and through said Robertson, Empress Theatre Company and Cyrus Jacobs, Receiver, but complainant believes and therefore alleges the fact to be that defendants hold possession claiming either under said Robertson, Empress Theatre Company and Cyrus Jacobs, Receiver, or some other person or corporation unknown to complainant, and in either event defendants hold over possession of said premises after the expiration of .the time for which same were let to anyone whomsoever. “Complainant further states that it has sustained damages by reason of the unlawful detainer aforesaid in the sum of five thousand dollars, and that the value of the monthly rents and profits of said tenements is eight hundred dollars. “Wherefore, the complainant prays judgment of restitution and for his damages and the value of the monthly rents and profits of the premises aforesaid.” To the above complaint defendants filed an amended answer — in fact two amended answers — in which, in addition to the pleas heretofore set forth, they raised the issue of estoppel, bottomed on the allegation that plaintiff had filed, in the proceeding for a receiver brought by defendants Bonfils and Tammen against the Empress Theatre Company, an intervening petition for damages accruing on account of past due rent. [460] • The facts of the case, apart from the very complicated nature of the pleadings, are, briefly: That plaintiff leased the premises in dispute to one Robertson, who sub-let them to the Empress Theatre Company for a term of five years (with an option of five years more upon certain conditions) from the first day of October, 1914, at a rental of $500 per month for two years, $550 per month for three years, and at such rent as might be afterwards agreed upon by a re-valuation, for the subsequent five-year option term. The instrument of lease contained but one clause which is necessary to an understanding of the facts and the law in issue. This was Clause 13, and it reads thus: “In case lessee becomes insolvent or goes into bankruptcy, voluntarily or involuntarily, or into receiver’s hands, then this lease shall become void and the remaining portion of the tei’m shall revert to lessor. ’ ’ After this lease had run for some nine months, and while the premises in dispute were in the possession of the Empress Theatre Company as sub-lessee, a proceeding was brought in the circuit court of Jackson County by defendants Bonfils and Tammen as plaintiffs therein, against the Empress Theatre Company, whereby pursuant to the object and prayer of the latter proceeding one Cyrus Jacobs, theretofore the manager of the Empress Theatre Company, was on the second day of July, 1915, appointed receiver of the lessee and as such took into his possession all of the property of the lessee, including the premises in dispute. Eight days after Jacobs was appointed receiver and four days after he qualified as such, and on July 10, 1915, plaintiff gave notice to the Empress Theatre Company and to Cyrus Jacobs as received thereof, of its election to declare a forfeiture of the lease for conditions broken. This notice, omitting address and signatures, reads thus: “We are writing to call your attention to the fact that the certain lease held by you Empress Theatre [461] Company as Lessee upon the premises' at the northeast corner of the building situated at the northwest corner of Twelfth and McG-ee .Streets, in Kansas City, Mis-' souri, being a room on the corner with about twenty feet and ten inches of frontage on Twelfth Street, and extending back the full depth of Lot 134, Swope’s Addetion; thence extending approximately 16 feet north of the north line of said Lot 134, said premises now being used by you as a theatre lobby, and' said lease having been made by us as Lessor, dated December 17, 1909, and being for a term beginning October 1, 1914, has been terminated by the appointment of Cyrus Jacobs as Receiver of Empress Theater Company, by the Honorable Clarence A. Burney, a Judge of the Circuit Court of Jackson County, Missouri, at Kansas City, on Wednesday, July 7, 1915, and the taking charge and possession of said Theater by said Receiver, and also by the insolvency of said Empress Theatér Company. “The provision of the lease which is applicable is the thirteenth, reading as follows: “ ‘In case Lessee becomes insolvent or goes into bankruptcy, voluntarily dr involuntarily, or into receiver’s hands, then this lease shall become void and the remaining portion of the term shall revert to Lessor.’ “In view of the termination of said lease, as aforesaid, we are willing that Cyrus Jacobs, as Receiver, continue for the time being in possession of the premises above described as a month-to-month tenant for the rental of $550 per month, payable in advance on the first day of each month. “We shall give due notice to the said Receiver when we desire possession of the property.” Two days af+er this notice was served on the receiver, the latter called on John S. Wright, of counsel herein for plaintiff, who had in charge for plaintiff all of the legal matters involved, and offered him a check for $500 in payment of the rent on the disputed premises for the month of July, 1915. Thereupon Mr. Wright and . Receiver Jacobs discusses the matter of [462] the alleged forfeiture and Jacobs agreed to retain possession of the premises thereafter as a tenant by the tnonth. Touching this conversation Wright’s testimony runs thus: “On July the 12th, 1915, Mr. Jacobs came to our office and offered to pay me, as representing the Gary Realty Estate, $500 rent for the premises in controversy here. The payment was offered in the form of a check for $500 signed by Cyrus Jacobs, Receiver. I told Mr. Jacobs that we had been instructed, as attorneys for the Gary Realty Company, either to require immedi ate surrender and possession of these premises, or to require that Mr. Jacobs rent them as receiver on a month-to-month basis; as a month-tó-month tenant; that they would be permitted to stay there as a month-to-month tenant. Mr. Jacobs replied that it was necessary for them to stay there, that they wanted to stay there on any basis, and he agreed to that arrangement, a month-to-month tenancy. ... I then took his check, the check I have mentioned, and gave him this receipt, Exhibit 12, explaining to him that we were separating the rent included in the check into two items, for the purpose of making the distinction clear between the tenancy of the Empress Theater Company, which we considered had been terminated by the appointment of him as receiver, and the month-to-month tenancy which was then beginning on his part as receiver. “Q. You say that was explained to Mr. Jacobs at that time? A. Yes, sir. “Q. And is that the reason here you made two receipts on the same sheet of paper? A. Yes, sir, and I made mathematical division in his presence. “,Q. Now, Mr. Wright, there was something said here about the changing of some figures in a notice from $550 to $500. I call your attention to Exhibit 4, the second line from the bottom, the figures $500, indicating upon its face that it was changed from $550 to $500. Did you have any conversation with Mr. Jacobs about that? A. I did. When Mr. Jacobs came in that [463] clay, lie remarked, I think it was the first remark that he made when we 'began onr conversation, that the notice which had been served on him, and on the theatre stated that we were willing to permit them to remain as a month-to-month tenant on a rental of $500 a month. He said that he had talked with ^Mr. Schoenberg, and that Mr. Schoenberg had said to him that the Gary Realty Company was willing that they should occupy the premises as a month-to-month tenant at the same rental, of $550 a month, which the theatre had been-paying, and I told him that I had since been informed by Mr. Schoenberg that that was a fact; that it had been, my impression that the premises had been renting for $550 a month, and I explained to him that I had gotten that impression'by hastily looking at the lease, and not making' a careful examination of it, and at his request I made the correction. “Q. Then and there? A. I changed that myself to $500 a month.~- “Q. And did he ask you to make the change? A. I don’t recall whether he asked me, he called my attention to it, as I have stated, and I then made the change. “Q. There is a period in the lease where the rental is $550 a month? A. There is, and I thought that was the rental at that time. The instruction that Mr. Schoenberg had given me was before Mr. Jacobs came to make the rental at $500 a month, and that was purely an inadvertent insertion.” Following this agreement the receiver paid by chick the rent for July, 1915, and received two receipts therefor; one of these receipts was for the sum accruing as rent up to the time of the appointment and qualification of Jacobs as receiver; the other was for the remainder of the month of July, after 'the appointment of the receiver, and represented rent due on the agreement of the receiver to thereafter hold the premises as a tenant by the month. On July 20, 1915, thereafter, notice was given by plaintiff to Jacobs as receiver of the Empress Theatre Company to vacate the "premises [464] in dispute on or before the 31st day of August, 1915. Possession was not given, however, but on September 1, 1915, a cheek for the 'September rent was tendered to plaintiff and by it refused. Other checks for rent due (or at least one other check) for subsequent months were also tendered and refused, but such refused checks under the issues now vexing us have no pertinency. Thereafter, under due and proper orders of the circuit court in the receivership proceeding brought by defendants Bonfils and Tammen against the Empress Theatre Company, Jacobs as receiver of the latter company sold the lease in dispute, together with the other property of the Empress Theatre Company, and this lease was purchased by defendants Kelly, LeMarquand and LeDoux, who thereupon entered into possession of the disputed premises, being inducted into possession by the receiver. After notice given to defendants herein and to the Empress Theatre Company, this proceeding in unlawful detainer was begun. Upon a trial thereof before the court, a jury having been waived —as plaintiff avers and defendants deny — judgment was given for possession, damages and rents as heretofore set out. Other facts may be found necessary to a clear understanding of a fairly simple proceeding, which has become complicated and involved by the variety and contrariety of pleas, motions, objections and exceptions made before, during and after the trial nisi. These further facts we will if necessary set out in juxtaposition to the points we are compelled to discuss. Waiver: Jury 2‘ I. The first point made by defendants is that under the facts existing they were entitled to a trial by jury. Against this contention plaintiff sets up the stipulation waiver set forth in our statement. Defendants, to escape the force of their solemn waiver of a jury trial, aver that after this stipulation was signed by them and filed in the case plaintiff [465] filed an amended complaint, which complaint, defendants aver, changed the canse of action. And so, defendants say, perforce snch change, they were no longer bound to abide'by their waiver. The point was saved by many objections and in divers sufficient ways; one of which was by 'way of answer invoking the Constitution of Missouri. Hence, in passing we may say, comes our right to entertain this appeal. We are clearly of the opinion that the defendants’ contention upon the state of the abstract law is correct. The point is res integra in this State, and while there are a few cases in other jurisdictions holding to a different rule, the great weight of authority, and the reason of the thing supports this authority, is, that the making of any material change in the pleadings by amendment, so that the issues are altered, off-sets the binding force of a waiver of a jury by stipulation. [Reese v. Baum, 82 N. Y. Supp. 157; Hewitt v. Week, 51 Wis; 368; McGeagh v. Nordberg, 53 Minn. 235; Gage v. Commerce Nat. Bank, 86 Ill. 371; Hanchett v. Ives, 171 Ill. 122.] It is obvious that a litigant might be perfectly willing to waive a jury as to a cause of action involving a small sum, or certain issues, and be wholly unwilling to waive a jury trial upon a petition for a larger sum, or upon new and wholly different issues. Such litigant might waive a jury in a trial upon a petition which stated no cause of action and be unwilling to waive a jury trial upon a good petition. Indeed, it may well be said that there is a sort of tacit agreement between the parties that a stipulation to waive the right of trial by a jury is a stipulation to waive' that right only as to the case and upon the issues as they stand at the time the stipulation is made and filed. So, if the issues herein were materially changed without the fault of defendants after the stipulation was signed, then it was error to refuse the defendants’ request for a jury non obstante stipulations. In determining this controlling question we need look only to the first count, since that is the count on [466] which the finding and judgment of the court nisi rest. In looking at the separation of the complaint into two counts we must bear in mind that such separation was probably induced by the demurrer of defendants. Two causes of action under the statutes pertaining to forcible entry and detainer were originally joined in a single complaint. Defendants by a futile motion to compel an election and by a seemingly successful demurrer, forced plaintiff to file an amended complaint in two counts. Whether a demurrer as such has any place in this sort of action we need not rule. [See Anderson v. McClure, 57 Mo. App. 93.] The first count, and as stated the one on which the judgment here is bottomed, alleged the holding over of the possession of the premises wilfully and without force after the expiration of the term, and prayed judgment for $5000 damages and alleged the value of the monthly rents and profits as $800. The original 'complaint on file when the waiver of a jury was entered into alleged both an unlawful holding over of the possession without force, and an obtaining, of the possession by disseizin. The original complaint also prayed damages, but in the sum of $2000 only. Since the separation into two counts was properly had and since it was apparently induced by the motion to elect or by the demurrer of defendants, no right to a jury can be bottomed upon such separation, and since plaintiff, after its proof was in and before the defendants offered any defense, amended its amended complaint by striking out the figures $5000 and again fixing the damages at the sum of $2000 as in the original complaint, it is-obvious that no material change was made in either of the above behalves. But, as defendants strenuously contend, no amount was fixed or alleged in the original complaint as the value of the monthly-rents and profits. The amended complaint fixed these at the sum of $800, and the court, on sufficient testimony warranting that action, found such value to be $650 per month. [Leahy v. Lubman, 67 Mo. App. l. c. 197.] Did the allegation in the amend [467] ed complaint of the value of the monthly rents and profits have the effect to change the issues and did it constitute a material alteration of the original complaint in unlawful detainer, wherein, before amendment, no such specific allegation was contained? We have reached the conclusion, after a painstaking-examination of the peculiar statute on which this action is bottomed and of the ruled cases, that it did not. The statutes providing for the practice and proceedings in forcible entry and detainer constitute a special and preclusive code. [Purcell v. Merrick, 172 Mo. App. 412.] Such a proceeding is not to be measured or determined by the ordinary rules and proceedings in civil cases. [Brennan v. McMenamy, 78 Mo. App. l. c. 128; Elliott v. Abell, 39 Mo. App. 349.] Both the complaint provided for by statute (Sec. 7669, R. S. 1909; Sec. 6, p. 788, R. S. 1855) and the verdict prescribed by statute are sui generis, [Secs. 7669, 7670 and 7671, R.. S. 1909; Secs. 18 and 19, pp. 790-791, R. S. 1855.] Touching this complaint and construing the statute which has never since been amended, and which prescribes the necessary allegations of a complaint, this court said in the case of Moore v. Dixon, 50 Mo. 1. c. 425, this: “The only point now made in this court to reverse the judgment is that the plaintiff could recover no greater amount of damages than he claimed in his complaint. Under the sixth section of the act regulating forcible entry and detainer, it was not necessary in the complaint to allege a specific claim for damages; and in a complaint founded upon that section, at the trial the. jury would be justified in giving damages, and also in stating the monthly rents and profits.” It is apparent ■ from reading the case of Moore v. Dixon, supra, that this court reached the conclusion there announced through its construction of Section 6, page 643, and Section 17, page 645, of Wagner’s Statutes. The above sections have, as forecast above, never been amended, but read to-day (except for the im [468] material change of a conjunctive to a disjunctive) just as they have read for more than sixty years. [Cf. Secs. 7660 and 7669, R. S. 1909.] Neither the forms in common use (Kelley’s Justice Treatise, see. 551), the statute (Sec. 7660, R. S. 1909), nor the adjudged cases, require any specific allegation as to the value of the monthly rents and profits, or any prayer for the finding of the same. [Sec. 7669, R. S. 1909; Ish v. Chilton, 26 Mo. 256; Moore v. Dixon, 50 Mo. 424; Peedler v. Schroeder, 59 Mo. 364; Hixon v. Selders, 46 Mo. App. 275; School District v. Holmes, 53 Mo. App. 487; Brennan v. McMenamy, 78 Mo. App. 122.] Therefore, it would, seem to follow that an amendment which merely asked specifically for a finding which the statutes required to be made without the asking, cannot constitute a material change in the cause of action. Of course, as has been held by the application of the analagdus rule in other civil cases, if there is such a specific allegation in the complaint, recovery is limited to the amount thereof". [Balch v. Myers, 65 Mo. App. 422; Haumueller v. Ackermann, 130 Mo. App. 387; Peedler v. Schroeder, supra.] If the sum alleged be found by the court or jury it may by the terms of the statute be doubled (Sec. 7674, R. S. 1909), although no prayer for such doubling is made in the complaint. [Peedler v. Schroeder, supra; Bierkenkamp v. Bierkenkamp, 88 Mo. App. 445; Hadley v. Bernero, 97 Mo. App. 314.] Both the statute (Sec. 7669, R; S. 1909) and the reason of the thing, as applied to the concrete facts before us, point to the correctness of the view here taken. The original complaint herein contained a prayer for damages in the sum of $2000. When this action was commenced, the damages did not amount to the sum alleged in this complaint, and therein prayed for. Had the action been tried in the justice’s court speedily, instead of being removed thence to the circuit court by certiorari, the amount of damages set out in the complaint would have fully covered all damages accruing or recoverable under the testimony. If thereafter, and [469] promptly upon an adverse result, defendants, pursuant to the mandate of the judgment, had yielded possession, no necessity would have, existed for the finding of the value of future rents and profits. Therefore, no possible necessity would have existed for any allegation in the complaint, of any amount as the value thereof. In other words, the view that the complaint in unlawful detainer, in order to be, sufficient and in order to warrant a finding of the value of future rents and profits, must allege such value and pray for a finding thereof by the triers of fact, is logically bottomed on the assumed duty of a plaintiff to presume that the defendant will not yield possession promptly upon the rendition of judgment against him. It is clear that no such duty rests upon a plaintiff in such a case. The damages should properly cover accrued rents and profits up to the time of the verdict. If defendants, being cast, should immediately comply with the judgment of the court by yielding possession, the finding of the value of future rents and. profits would be an unnecessary and useless thing. Since therefore upon authority and the reason of the thing, an allegation of the value of the future rents and profits is not necessary in a complaint for unlawful detainer, we conclude that the addition of such an allegation to the first count of plaintiff’s amended complaint did not have the effect materially to change its cause of action. That the pleading was more definite and artificial with such allegation than without it, may be conceded. But we approach the question here solely from the point of view whether the addition of such an allegation constituted a material alteration.of the complaint. Holding that it did not, the contention of defendants, being bottomed wholly upon the assumption that the change made was a material one, must be disallowed. [470] CaseJUdgmS [469] II. Complaint is made by defendants that the learned trial court pre-judged this case in the midst of the trial by saying in effect that the conceded appointment [470] of a receiver constituted a breach of condition for which the lessor, absent facts constituting a waiver, might terminate the tenancy and re-enter. We do not think this point is well-taken. What the learned trial judge said amounted only to his construction of the meaning of that clause of the lease which we have quoted and which provided for the reentry of the lessor in the event of the appointment of a receiver for the lessee. The construction of the language of the clause in question was for the judge in his judicial character, although he sat here also as the trier of the facts. If we may so express the thought, it was the privilege and the duty of the trial judge to rule this question on the juclge-side and not on the jury-side of the court. Being privileged to rule it in his judicial character, it was a pure question of law which required no evidence for its elucidation. Indeed, the defense urged by defendants, upon this phase of the case, was a waiver by plaintiff of the condition broken arising upon the facts in the case. Such a defense cannot be available till a breach of condition occurs. If there was no breach, there was nothing for plaintiff to waive. While construing the language of the lease contract to mean that upon the appointment of a receiver the lease terminated and the remainder of the term reverted to the lessor, the learned judge specifically stated that he was making no ruling upon the waiver pleaded by the defendants, but that he would thereafter resolve that question upon the facts adduced in testimony. We are of the opinion that he took the correct view of the meaning of the disputed clause, and that the contention that his action in the premises constituted a prejudging of the case ought to be disallowed. In this view the question whether the facts shown in evidence amounted to a waiver of the condition broken became one to be resolved by the court sitting as a jury. This was a disputed issue, for upon this point there was evidence pro and con. Since there was substantial evidence to support the finding of the court, we are power [471] less to interfere, even if we were disposed to do so. [In re Lankford, 272 Mo. l.] III. But it is strenuously contended that no month-to-month tenancy was possible of creation, because no agreement with tbe receiver for tbe creation of sucb a tenancy could be valid or binding. This upon tbe view tbat as sucb a receiver is a mere arm of thé court which appoints hint, be can make no valid or binding contract affecting tbe property in bis bands without tbe consent of sucb court. We do not think there can be any serious doubt about the legal correctness of tbis view. But whatever waiver there is in tbis case is bottomed wholly upon tbe dealings of plaintiff with tbe receiver. The facts shown by the testimony and tbe documents in evidence prove conclusively, so far as we, as an appellate court, are concerned, tbat plaintiff never acquiesced in the receiver’s possession as a-tenant under the lease after tbe receiver was appointed. Pour days after tbe appointment and qualification of Jacobs as receiver, plaintiff served notice on him as manager of the Empress Theatre- Company, and also as receiver of tbe latter company, advising him tbat tbe lease was at an end by reason of a forfeiture arising .from the appointment of a receiver for tbe lessee. At tbis time Jacobs, as receiver, was in possession of tbe disputed premises. Two days’ after tbis notice was served on him, Jacobs called on tbe attorney for plaintiff, paid tbe rent on tbe disputed premises for six days and up to tbe time of bis qualification as receiver, and -made an agreement (which we may now concede to have been out of bis power to make, absent confirmation by tbe court) to remain in possession as a tenant by tbe month. Thereupon, be paid and plaintiff accepted rent as a tenant by tbe month for tbe remainder of tbe month of July. On tbe 20th-day of tbe same month notice was given to Jacobs as receiver, who was still in possession as sucb, terminating tbe montb-to-montb tenancy and demanding possession of tbe premises on September 1, 3915. Tbe rent for August was paid and accepted [472] without anything further having been done, written or said on either side. After August 31, 1915, no more rent was accepted by plaintiff, though tenders thereof were made for.both the months of September and October. Can waiver be present as a matter of law where the facts show full reliance by the parties at all times upon a situation which negatives and contradicts any intention to waive! We think not. The general rule announced by a most excellent work after a careful consideration of the great majority of the ruled cases, is this: “The question of waiver is mainly a question of intention, which lies at the foundation of the doctrine. Waiver must be manifested in some unequivocal manner, and to operate as such it must in all cases be intentional. There can be no waiver unless so intended by one party and so understood by the other, or one party has so acted as to mislead the other and is estopped thereby. Since intent is. an operation of the mind it should be proven and found as a fact, and is rarely to be inferred as a matter of law. An intention to make the waiver claimed should clearly be made to appear by the evidence; and the best .evidence of intention is to be found in the language used by the parties. The true inquiry is what was said'or written, and whether what'was said indicated the alleged intention. The secret understanding or intent of the parties is immaterial on the question of waiver. The intention need not necessarily be proved by express declarations, but may be shown by the acts and conduct of the parties, from which an intention to waive may be reasonably inferred, or even by non-action on their part. Mere silence at a time when there is no occasion to speak is not a waiver, nor evidence from which waiver may be • inferred, especially where such. silence is unaccompanied by any act calculated to mislead.” [40 Cyc. 261.] It is clear that the facts in this case, as the learned trial court was permitted under the rule to find them (In Re Lankford’s Estate, supra), bring it within the [473] rule above announced. Tbe view that a waiver of a forfeiture of a lease will not be inferred after condition broken where neither party relied upon the continuance of the lease, and where all of the facts upon which the parties acted were fully known to the adverse party, has in effect been taken in a well considered case by the St. Louis Court of Appeals. [Baxter v. Heimann, 134 Mo. App. 260.] The'case of. Barnhart v. Finney, 40 Mo. 449, is relied upon by defendants as furnishing authority for the position which they assume. We find no fault whatever with the rule announced in the Barnhart case= Upon the facts held in judgment in that' case no other view than that taken was legally possible. But a bare reading of the latter .case discloses how far the facts therein differ from the facts now before us. In the Barnhart case rent was accepted by the lessor for more than four years after conditions were broken, without insisting upon a forfeiture, and without any suggestion of forfeiture, except a faint assertion thereof subsequently withdrawn. After the abandonment of the vague suggestion of forfeiture, the lessee in the Barnhart case constructed upon the leased premises valuable improvements, and the lessor continued to accept payment of rents until the first full term expired, and for a period as stated, of four years, without any objection, till the lessee elected to hold over under his option for another term. Here, immediately after the .occurrence of the fact constituting a breach of condition, notice of plaintiff’s election to declare a forfeiture therefor was given. And plaintiff has throughout and up to now continuously insisted on this forfeiture. Thereafter, an agreement for a continuance in possession of the receiver of the lessee was made with the latter. But such continuation in possession was not to be under the terms of the lease now alleged to be forfeited, but was pursuant to a new arrangement entirely. No acquiescence in the [474] breach ever at any time occurred on plaintiff’s part. Nor is there in the record any acquiescence in the receiver’s alleged possession under the lease. The lease was throughout by plaintiff declared and deemed to be forfeited, abrogated and at an encl, and this condition of forfeiture was agreed to and acquiesced in by the lessee’s receiver, who fully understood all the facts and the entire situation and who thereafter was treated as and paid rent till given'notice to quit, as a tenant by the month. No one ought to be deemed to waive a right when every act he does and every word he utters constitutes a denial of a waiver 'thereof, and a denial of any intention to waive it. Especially when this attitude is fully disclosed to, and known at all times by the adverse party. We conclude that there was no waiver of the forfeiture disclosed by the-facts in this case. Other errors are assigned, and set forth in defendant’s printed assignment of errors, but we find no sufficient merit in any of them to warrant a reversal, and we are precluded from a review of them by the rules that error will not be presumed; that the mere assertion of error is not sufficient to convict the trial court thereof; that to the acts of the trial court, naught else appearing, the presumption of correctness attaches, and that upon him who alleges error is thrust the burden of proving it. Finding no error warranting reversal, it follows that the case ought to be affirmed. Let this be done. All concur.