STURGIS, J. —
The plaintiff. brought this suit in ejectment for the possession of certain lands in Jasper county, Missouri, predicating his title and right [411]*411to possession on a lease from tlie defendant Lncinda Murray, the owner of the land. The defendant Mc-Reynolds filed answer admitting possession and justifying such possession on a later lease from the same owner. The answer of Lucinda Murray is a general denial, together with a plea that the alleged lease to the plaintiff purports to be for a term of five years; and, not having been signed by her or her agent thereto lawfully authorized in writing, the same was void under the Statute of Frauds; also that the plaintiff had forfeited his lease and right to possession to the land by abandonment of possession and surrender back to her as owner; also that plaintiff had forfeited his lease by failure to pay rent as therein provided. Her answer prayed that said lease to plaintiff be declared null and void for the above reasons ; and that, as the same casts a cloud upon her title, that the same be cancelled and the plaintiff be perpetually enjoined from claiming any right to said premises or the possession therof. Plaintiff filed a reply to these answers, in which he likewise prayed that the lease to defendant McReynolds be declared fraudulent and void for certain reasons therein stated, and that defendant McReynolds be perpetually enjoined from claiming or asserting any right to the said land or to .possession thereof.
One of the errors complained of by plaintiff- is that the court denied him the right of trial by jury. It appears from the pleadings that both parties sought to inject equitable matters into the pleadings and trial of this case and after so doing the plaintiff ought not to be heard in any complaint that the court tried the case as one in equity. Besides this, the judgment entered by the court recites that the parties waived a jury.
The facts in the case show that defendant Murray placed the land in question' in the hands of A. G-. Young, of Webb City, Missouri, to rent for her, giving [412]*412him full power and authority, though not in writing, to rent the same, collect the rent and take full charge of this part of her business. Mr. Young rented the land to plaintiff for a term of five years, beginning March 1, 1909 and ending March 1, 1914. This written lease was signed “Lucinda Murray by A. Gr. Young, Agent. ’ ’ The land in question is agriculture land and was leased to plaintiff for that purpose. The plaintiff went into possession of the land in question under- this lease and almost exclusively by subtenants farmed the same for the years 1909 and 1910. The plaintiff himself did very little, if any, farming of this land and had no teams or farming implements of any consequence with which to carry on farming operations. The lease contained a clause forbidding him to sublet the premises or any part of the same, but we think the evidence is clear that the landowner, personally and through her agent, had full knowledge that the plaintiff was farming the land almost exclusively by subletting it to others and waived this provision of the lease.
It is also shown that plaintiff’s farming venture was not much of a success; and that during the two years during which he farmed the same, in the manner above mentioned, his income from the same was hardly enough to pay the rent due Mrs. Murray as landowner. Some of the subtenants paid the plaintiff cash rent and others paid him grain rent. To some of them he gave leases on parts of the land coextensive with his own lease, and others had shorter leases with options to renew the same from year to year. In the fall of 1910, the plaintiff, then being in arreas in the payment of his rent to the extent of $75 or more, without any notice to defendant Murray or her agent left this State and went to Texas. He gave very little information to his subtenants or to anyone else as to his purpose in going there; how long he intended to stay; when, if ever, he intended to return or what he in[413]*413tended to do further with this land. He says himself that he went there for the purpose of working during the winter season, so as to raise money to pay some debts that he owed, including one to A. G-. Young. .He also claims that he gave directions to two of his subtenants to pay some rent that would be due about March 1, 1911, to the Bank of Diamond, and that that bank-would remit the same to Mr. Young to be applied on the rent. Another installment of rent was due on March 1, 19.11, and it is shown by the evidence that the amount to be paid by these subtenants, had it been paid, would not have paid the amount of rent owing by plaintiff. These subtenants did not pay the rent due from them, whether through some misunderstanding with the bank cashier or for some other reason is not certain or material. It is conceded that neither defendant nor her agent knew anything as to the whereabouts of plaintiff or as to his intentions with reference to his lease.
In this condition of affairs, shortly after the first of March, 1911, Mr. Young, believing as he says that plaintiff had abandoned the premises, again rented the same for a period of five years to the defendant Mc-Reynolds, executing to him a written lease, under which he took possession of the land in question. The plaintiff did not return to this State until August, 1911, though in the meantime he had written to Mr. Young to know if the subtenants had paid the rent to' him, whereupon Mr. Young informed him that they had not and that he had rented the land to defendant MeReynolds. Plaintiff says he intended to return about March 1st and gives as his reason for not returning sooner that he had received an injury about that time and was unable for some time to do any work or return to this State. He says, however, that during most of his stay in Texas, both before and after his alleged injury, he was working for daily wages.
[414]*414It should be stated that the defendant McRey-nolds was one of the subtenants under the plaintiff; and it is claimed that he made misrepresentations as to plaintiff’s intentions about returning and farming this land and thus procured the lease to himself. This, however, is denied and there is evidence to show that this defendant did nothing more than to give what information he had as to plaintiff’s whereabouts and intentions with reference to abandoning the land or returning to farm it.
The question of the Statute of Frauds, the right of Mrs. Murray to forfeit this lease for nonpayment of rent and several other questions are discussed by counsel in their briefs in this case. ' We are satisfied, however, that the trial court decided this case largely, if not wholly on the question of plaintiff’s abandonment of the premises and the right of Mrs. Murray under the circumstances to re-enter and lease the land to another. We have not set out all the evidence bearing on this question and it would serve no useful purpose to do so. There was evidence both ways and we are satisfied with the finding of the trial court on this question of fact, inasmuch as the trial court heard the evidence, saw the witnesses who testified and possessed those advantages which are always accorded to a trial court in hearing and weighing evidence.
The question of abandonment of leased premises by a tenant so as to afford the landlord the right of re-entry is largely a question of fact. In Churchill v. Lammars, 60 Mo. App. 244, 248, the court said: ‘ ‘
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STURGIS, J. —
The plaintiff. brought this suit in ejectment for the possession of certain lands in Jasper county, Missouri, predicating his title and right [411]*411to possession on a lease from tlie defendant Lncinda Murray, the owner of the land. The defendant Mc-Reynolds filed answer admitting possession and justifying such possession on a later lease from the same owner. The answer of Lucinda Murray is a general denial, together with a plea that the alleged lease to the plaintiff purports to be for a term of five years; and, not having been signed by her or her agent thereto lawfully authorized in writing, the same was void under the Statute of Frauds; also that the plaintiff had forfeited his lease and right to possession to the land by abandonment of possession and surrender back to her as owner; also that plaintiff had forfeited his lease by failure to pay rent as therein provided. Her answer prayed that said lease to plaintiff be declared null and void for the above reasons ; and that, as the same casts a cloud upon her title, that the same be cancelled and the plaintiff be perpetually enjoined from claiming any right to said premises or the possession therof. Plaintiff filed a reply to these answers, in which he likewise prayed that the lease to defendant McReynolds be declared fraudulent and void for certain reasons therein stated, and that defendant McReynolds be perpetually enjoined from claiming or asserting any right to the said land or to .possession thereof.
One of the errors complained of by plaintiff- is that the court denied him the right of trial by jury. It appears from the pleadings that both parties sought to inject equitable matters into the pleadings and trial of this case and after so doing the plaintiff ought not to be heard in any complaint that the court tried the case as one in equity. Besides this, the judgment entered by the court recites that the parties waived a jury.
The facts in the case show that defendant Murray placed the land in question' in the hands of A. G-. Young, of Webb City, Missouri, to rent for her, giving [412]*412him full power and authority, though not in writing, to rent the same, collect the rent and take full charge of this part of her business. Mr. Young rented the land to plaintiff for a term of five years, beginning March 1, 1909 and ending March 1, 1914. This written lease was signed “Lucinda Murray by A. Gr. Young, Agent. ’ ’ The land in question is agriculture land and was leased to plaintiff for that purpose. The plaintiff went into possession of the land in question under- this lease and almost exclusively by subtenants farmed the same for the years 1909 and 1910. The plaintiff himself did very little, if any, farming of this land and had no teams or farming implements of any consequence with which to carry on farming operations. The lease contained a clause forbidding him to sublet the premises or any part of the same, but we think the evidence is clear that the landowner, personally and through her agent, had full knowledge that the plaintiff was farming the land almost exclusively by subletting it to others and waived this provision of the lease.
It is also shown that plaintiff’s farming venture was not much of a success; and that during the two years during which he farmed the same, in the manner above mentioned, his income from the same was hardly enough to pay the rent due Mrs. Murray as landowner. Some of the subtenants paid the plaintiff cash rent and others paid him grain rent. To some of them he gave leases on parts of the land coextensive with his own lease, and others had shorter leases with options to renew the same from year to year. In the fall of 1910, the plaintiff, then being in arreas in the payment of his rent to the extent of $75 or more, without any notice to defendant Murray or her agent left this State and went to Texas. He gave very little information to his subtenants or to anyone else as to his purpose in going there; how long he intended to stay; when, if ever, he intended to return or what he in[413]*413tended to do further with this land. He says himself that he went there for the purpose of working during the winter season, so as to raise money to pay some debts that he owed, including one to A. G-. Young. .He also claims that he gave directions to two of his subtenants to pay some rent that would be due about March 1, 1911, to the Bank of Diamond, and that that bank-would remit the same to Mr. Young to be applied on the rent. Another installment of rent was due on March 1, 19.11, and it is shown by the evidence that the amount to be paid by these subtenants, had it been paid, would not have paid the amount of rent owing by plaintiff. These subtenants did not pay the rent due from them, whether through some misunderstanding with the bank cashier or for some other reason is not certain or material. It is conceded that neither defendant nor her agent knew anything as to the whereabouts of plaintiff or as to his intentions with reference to his lease.
In this condition of affairs, shortly after the first of March, 1911, Mr. Young, believing as he says that plaintiff had abandoned the premises, again rented the same for a period of five years to the defendant Mc-Reynolds, executing to him a written lease, under which he took possession of the land in question. The plaintiff did not return to this State until August, 1911, though in the meantime he had written to Mr. Young to know if the subtenants had paid the rent to' him, whereupon Mr. Young informed him that they had not and that he had rented the land to defendant MeReynolds. Plaintiff says he intended to return about March 1st and gives as his reason for not returning sooner that he had received an injury about that time and was unable for some time to do any work or return to this State. He says, however, that during most of his stay in Texas, both before and after his alleged injury, he was working for daily wages.
[414]*414It should be stated that the defendant McRey-nolds was one of the subtenants under the plaintiff; and it is claimed that he made misrepresentations as to plaintiff’s intentions about returning and farming this land and thus procured the lease to himself. This, however, is denied and there is evidence to show that this defendant did nothing more than to give what information he had as to plaintiff’s whereabouts and intentions with reference to abandoning the land or returning to farm it.
The question of the Statute of Frauds, the right of Mrs. Murray to forfeit this lease for nonpayment of rent and several other questions are discussed by counsel in their briefs in this case. ' We are satisfied, however, that the trial court decided this case largely, if not wholly on the question of plaintiff’s abandonment of the premises and the right of Mrs. Murray under the circumstances to re-enter and lease the land to another. We have not set out all the evidence bearing on this question and it would serve no useful purpose to do so. There was evidence both ways and we are satisfied with the finding of the trial court on this question of fact, inasmuch as the trial court heard the evidence, saw the witnesses who testified and possessed those advantages which are always accorded to a trial court in hearing and weighing evidence.
The question of abandonment of leased premises by a tenant so as to afford the landlord the right of re-entry is largely a question of fact. In Churchill v. Lammars, 60 Mo. App. 244, 248, the court said: ‘ ‘ The rule of law is said to be now settled that any acts, which are equivalent to an agreement on the part of the tenant to abandon, and on the part of the landlord to resume possession of the demised premises, amounts to a surrender by operation of law.” [Talbot v. Whipple, 14 Allen 177.] A surrender may be inferred from the circumstances and conduct of the parties evincing that they both agree to consider a surrender as made. [415]*415[Huling y. Roll, 43 Mo. App. 234; Beall v. White, U. S. 382; Bedford v. Terhune, 30 N. Y. 453; Fry v. Partridge, 73 Ill. 51; McGrlynn v. Brock, 111 Mass. 219.]
In Crawley v. Mullins, 48 Mo. 517, 519, the court, in speaking of the case of Schuisler v. Ames, 16 Ala. 73, said: “In the last case it does not appear that the rent could not have been collected, and the court held that the landlord was not bound to let his premises lie idle and unoccupied, as it might he more injurious to him than to enter and lose the rent.”
In 24 Cyc. 1372, the law is stated thus: “An abandonment of the premises by the tenant and an acceptance of the surrender by a resumption of possession by the landlord constitute a surrender by operation of law. . . . There is an abandonment of the premises where there is such a relinquishment as justifies an immediate resumption of possession by the landlord.”
At page 1392, of the same work, it is said: “After surrender of the lease the landlord may enter without notice. The question of whether a lease has been abandoned so as to confer a right of re-entry is one of fact to be determined from the acts and intentions of the parties.” [See also 18 Ency. Law (2 Ed.), 313, 354.]
There is an absence of any forfeiture clause in this lease for nonpayment of rent and we agree with appellant that, in the absence of such forfeiture provision, nonpayment of rent does not generally give a right of forfeiture and re-entry. [24 Cyc. 1349, 1392; 18 Ency. Law (2 Ed.), 369; Tarlotting v. Bokern, 95 Mo. 541, 544, 8 S. W. 547.]
If this was a suit to evict the tenant for nonpayment of rent that defense would be available to him; but, as shown by Crawley v. Mullins, supra, the absence of a forfeiture provision is not material on the question of abandonment.
[416]*416We have read and weighed the evidence in this case and approve the finding of the trial court that the plaintiff had so far abandoned the premises .and his .lease as justified the- landowner in re-entering and leasing same to another party. Having done so the plaintiff could not afterwards, when the rights of other parties had attached to the property, reconsider his action and demand possession. The judgment of the trial court is affirmed.
All concur.