Unlawful detainer, commenced before a justice of the peace, for possession of Lot 15, Block 6, West Ridgway Place, in Kansas City. Complaint alleged plaintiffs were owners and entitled to possession, and that defendants wilfully and without force held over said premises after the time they were demised or let to them; that the value of monthly rents and profits was $75. Prayer was for restitution and damages and value of monthly rents. The justice rendered judgment for plaintiffs, and defendants appealed to the circuit court. In that court, at the time of trial, defendant's attorney stated that the defense was that defendants moved into the premises at the solicitation of the owner, Mrs. Almeda Gallop, who was an invalid and lived alone in said premises, under a written memorandum that they would have the option of staying there for a year or two years, and in lieu of rent they were to furnish her heat, water, light and board; that they complied with their agreement; that Mrs. Gallop died during the first year, and that the second year would not expire until September
after the suit was brought; that prior to her death, plaintiffs obtained a deed to the premises from Mrs. Gallop at a time she was not capable of making a deed, and their deed is void.
Plaintiffs then offered testimony to show that the rental value of the property was $35 or $40 per month; also their deed from Mrs. Gallop. This deed was dated January 7, 1921, acknowledged the same day, and recorded April 4, 1921. It was a warranty deed in form; consideration, $1. They further showed that plaintiffs were nephews of Mrs. Gallop, and that she was a widow. That the nearest relative who survived her was the mother of one of the plaintiffs. They also introduced the following paper signed by defendants and Mrs. Gallop; "Mr. and Mrs. Geo. B. Wandling will make their home at 704 Bennington with Mrs. J.H. Gallop for one or two years, if they wish, and furnish heat, water, light and board for same. (Signed) G.B. Wandling, Clare R. Wandling, Mrs. J.H. Gallop. Dated, September 25, 1920."
It was also shown by plaintiffs that 704 Bennington was the property sued for. On cross-examination of plaintiffs' witness, the court ruled out all questions as to the delivery of the deed and condition of mind of Mrs. Gallop when she made the deed, and rejected defendants' offer to prove by the witness that at the time of the execution of the deed Mrs. Gallop was of unsound mind. The plaintiffs also showed that defendants were in possession at the time of Mrs. Gallop's death, to-wit, March 26, 1921. This was all of plaintiffs' evidence, and thereupon defendants offered a demurrer thereto, which was overruled.
Defendant Clare R. Wandling testified that she was the wife of defendant George B. Wandling; that it was their purpose to remain in the premises for the two years mentioned in said document, executed by defendants and Mrs. Gallop, which would be until September 25, 1922, and that plaintiffs never made any demand in writing for said premises. Defendants then offered to prove by
this witness and also by her husband that defendant refused to move out to Mrs. Gallop's house unless she entered into an agreement whereby their arrangement would last for a year or two years, if defendants wished. that their moving involved breaking up their home and moving to Mrs. Gallop's at great expense, and that that was one of the essential elements in the execution of such agreement. That in order to make the place, 704 Bennington, so that they could live in it, it was necessary for defendants to make quite an expenditure in the way of putting in electric lights, water, gas, gas stove and screens and other things. All these offers were refused on the ground that Mrs. Gallop, the other party to the contract of lease, was dead and defendants were therefore not competent witnesses.
This was all the evidence. At its close the court refused a demurrer to the evidence offered by defendants, and gave a peremptory instruction to find for the plaintiffs for possession and "such damages as you consider from the evidence the reasonable value of the premises from March 26, 1921, to the date of trial, and to fix the monthly rental value." Defendants duly saved their exceptions. The jury found for plaintiffs for possession, $150 damages, and that the monthly rental value was $30. Judgment was entered on the verdict for possession and double damages and monthly rental value. Defendants filed a motion for a new trial, which was overruled and they appealed to this court.
The motion for a new trial saved all of defendants' exceptions at the trial, and besides, set up that the unlawful detainer statute authorizing double damages in such cases violated Sections 10, 28 and 30 of Article 2, of the Constitution of Missouri and the Fourteenth Amendment to the Constitution of the United States.
I. Section 10 of Article 2 of the State Constitution provides: "The courts of justice shall be open to every person, and certain remedy afforded for every injury
to person, property or character, and that rightDouble Damages: and justice shall be administered without sale,Constitutional. denial or delay." Section 28 of said Article 2 preserves the right of trial by jury "as heretofore enjoyed." Section 30 of said Article 2 provides: "That no person shall be deprived of life, liberty or property without due process of law." The same inhibition is contained in the Fourteenth Amendment of the Constitution of the United States.
We do not think the statute (Sec. 3012, R.S. 1919) which provides that where there is a verdict for plaintiff in unlawful detainer cases the court must enter judgment for double the damages and double the monthly rental value of the premises found by the jury, violates any of the provisions of the State or Federal Constitution invoked in this case.
The argument of learned counsel for appellant is that to inflict a penalty of one hundred per cent above the actual damages sustained by the plaintiffs deters defendants from asserting their rights in such cases and amountsClosing Doors to a partial closing of the doors of courts ofof Courts. justice, as has been held where treble damages were fixed by the statutes fixing freight rates for unsuccessfully bringing suits to contest their validity. [White v. Delano, 270 Mo. 16; Ex parte Young, 209 U.S. 123; Cotting v. Stockyards, 183 U.S. 79.] In those cases the statutes imposed a direct penalty for exercising the constitutional right of appealing to the courts for a settlement and adjudication of controversies. The statute before us imposes a penalty of double damages for wilfully detaining the landlord's property after the expiration of the time it was demised or let to the tenant. The statute in no way penalizes any party for unsuccessfully testing his rights in the courts, but for wilfully keeping and appropriating another man's real estate against his consent and without any legal right to do so. Such conduct borders upon a criminal act. If land were personal property it would be akin to embezzlement. If only the rental value could
be collected by the landlord after the lease expired the tenant could, in effect, extend the lease by simply defying the landlord and remaining in possession during the litigation, no matter how long drawn out it might be.
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Unlawful detainer, commenced before a justice of the peace, for possession of Lot 15, Block 6, West Ridgway Place, in Kansas City. Complaint alleged plaintiffs were owners and entitled to possession, and that defendants wilfully and without force held over said premises after the time they were demised or let to them; that the value of monthly rents and profits was $75. Prayer was for restitution and damages and value of monthly rents. The justice rendered judgment for plaintiffs, and defendants appealed to the circuit court. In that court, at the time of trial, defendant's attorney stated that the defense was that defendants moved into the premises at the solicitation of the owner, Mrs. Almeda Gallop, who was an invalid and lived alone in said premises, under a written memorandum that they would have the option of staying there for a year or two years, and in lieu of rent they were to furnish her heat, water, light and board; that they complied with their agreement; that Mrs. Gallop died during the first year, and that the second year would not expire until September
after the suit was brought; that prior to her death, plaintiffs obtained a deed to the premises from Mrs. Gallop at a time she was not capable of making a deed, and their deed is void.
Plaintiffs then offered testimony to show that the rental value of the property was $35 or $40 per month; also their deed from Mrs. Gallop. This deed was dated January 7, 1921, acknowledged the same day, and recorded April 4, 1921. It was a warranty deed in form; consideration, $1. They further showed that plaintiffs were nephews of Mrs. Gallop, and that she was a widow. That the nearest relative who survived her was the mother of one of the plaintiffs. They also introduced the following paper signed by defendants and Mrs. Gallop; "Mr. and Mrs. Geo. B. Wandling will make their home at 704 Bennington with Mrs. J.H. Gallop for one or two years, if they wish, and furnish heat, water, light and board for same. (Signed) G.B. Wandling, Clare R. Wandling, Mrs. J.H. Gallop. Dated, September 25, 1920."
It was also shown by plaintiffs that 704 Bennington was the property sued for. On cross-examination of plaintiffs' witness, the court ruled out all questions as to the delivery of the deed and condition of mind of Mrs. Gallop when she made the deed, and rejected defendants' offer to prove by the witness that at the time of the execution of the deed Mrs. Gallop was of unsound mind. The plaintiffs also showed that defendants were in possession at the time of Mrs. Gallop's death, to-wit, March 26, 1921. This was all of plaintiffs' evidence, and thereupon defendants offered a demurrer thereto, which was overruled.
Defendant Clare R. Wandling testified that she was the wife of defendant George B. Wandling; that it was their purpose to remain in the premises for the two years mentioned in said document, executed by defendants and Mrs. Gallop, which would be until September 25, 1922, and that plaintiffs never made any demand in writing for said premises. Defendants then offered to prove by
this witness and also by her husband that defendant refused to move out to Mrs. Gallop's house unless she entered into an agreement whereby their arrangement would last for a year or two years, if defendants wished. that their moving involved breaking up their home and moving to Mrs. Gallop's at great expense, and that that was one of the essential elements in the execution of such agreement. That in order to make the place, 704 Bennington, so that they could live in it, it was necessary for defendants to make quite an expenditure in the way of putting in electric lights, water, gas, gas stove and screens and other things. All these offers were refused on the ground that Mrs. Gallop, the other party to the contract of lease, was dead and defendants were therefore not competent witnesses.
This was all the evidence. At its close the court refused a demurrer to the evidence offered by defendants, and gave a peremptory instruction to find for the plaintiffs for possession and "such damages as you consider from the evidence the reasonable value of the premises from March 26, 1921, to the date of trial, and to fix the monthly rental value." Defendants duly saved their exceptions. The jury found for plaintiffs for possession, $150 damages, and that the monthly rental value was $30. Judgment was entered on the verdict for possession and double damages and monthly rental value. Defendants filed a motion for a new trial, which was overruled and they appealed to this court.
The motion for a new trial saved all of defendants' exceptions at the trial, and besides, set up that the unlawful detainer statute authorizing double damages in such cases violated Sections 10, 28 and 30 of Article 2, of the Constitution of Missouri and the Fourteenth Amendment to the Constitution of the United States.
I. Section 10 of Article 2 of the State Constitution provides: "The courts of justice shall be open to every person, and certain remedy afforded for every injury
to person, property or character, and that rightDouble Damages: and justice shall be administered without sale,Constitutional. denial or delay." Section 28 of said Article 2 preserves the right of trial by jury "as heretofore enjoyed." Section 30 of said Article 2 provides: "That no person shall be deprived of life, liberty or property without due process of law." The same inhibition is contained in the Fourteenth Amendment of the Constitution of the United States.
We do not think the statute (Sec. 3012, R.S. 1919) which provides that where there is a verdict for plaintiff in unlawful detainer cases the court must enter judgment for double the damages and double the monthly rental value of the premises found by the jury, violates any of the provisions of the State or Federal Constitution invoked in this case.
The argument of learned counsel for appellant is that to inflict a penalty of one hundred per cent above the actual damages sustained by the plaintiffs deters defendants from asserting their rights in such cases and amountsClosing Doors to a partial closing of the doors of courts ofof Courts. justice, as has been held where treble damages were fixed by the statutes fixing freight rates for unsuccessfully bringing suits to contest their validity. [White v. Delano, 270 Mo. 16; Ex parte Young, 209 U.S. 123; Cotting v. Stockyards, 183 U.S. 79.] In those cases the statutes imposed a direct penalty for exercising the constitutional right of appealing to the courts for a settlement and adjudication of controversies. The statute before us imposes a penalty of double damages for wilfully detaining the landlord's property after the expiration of the time it was demised or let to the tenant. The statute in no way penalizes any party for unsuccessfully testing his rights in the courts, but for wilfully keeping and appropriating another man's real estate against his consent and without any legal right to do so. Such conduct borders upon a criminal act. If land were personal property it would be akin to embezzlement. If only the rental value could
be collected by the landlord after the lease expired the tenant could, in effect, extend the lease by simply defying the landlord and remaining in possession during the litigation, no matter how long drawn out it might be. A penalty sufficient to deter such practices should be imposed by the law, of which primarily the Legislature is the sole judge. We hold the penalty in this case is not unreasonable or arbitrary. This statute has been in existence in this State ever since the enactment of the Revised Statutes of 1855, and its constitutionality has never been assailed before in this court. We have long since held the double-damage acts for killing stock by railroads constitutional. [Barnett v. Railroad, 68 Mo. 56; Spealman v. Railroad,71 Mo. 434.] Also the statutes imposing penalties on insurance companies for vexatious delay in payment of losses. [Keller v. Ins. Co.,198 Mo. 440; Barber v. Ins. Co., 269 Mo. 21.] We decide this point against appellant.
II. We think the memorandum shown in evidence was a lease for one or two years at the option of defendants and they were not guilty of unlawful detainer. The cardinal rule for the construction of all written documents, whether contracts, wills or deeds, is to ascertain the real, true, actualValid Lease: intention of the parties if possible, and if theNo Unlawful document itself is not free from ambiguity theDetainer. circumstances and situation of the parties at the time of its execution are to be taken into consideration and the writing viewed in the light shed upon it by such circumstances. [Trust Co. v. MacGovern, 249 S.W. l.c. 68.] Most, if not all, the circumstances offered to be shown by defendants would have been competent, but the offer was properly denied under the statute which prohibits one party from testifying when the other party to the contract is dead. [Sec. 5410, R.S. 1919.]
But it is admitted by learned counsel for respondents in their brief that the Wandlings were close friends of Mrs. Gallop for a number of years, and plaintiffs' evidence
shows that she was a widow, had no children, and she died about seven months after the written memorandum of September 25, 1920, was made. It is also admitted that defendants took possession of said property shortly after the date of said memorandum and continued therein until the trial. It is not claimed they did not furnish light, heat, water and board to Mrs. Gallop as required by said contract. From the fact that Mrs. Gallop desired the defendants to board and take care of her at her house and to supply the household with necessaries, as shown by the memorandum and that she died within a few months after the lease to defendants, it may be inferred that she was more or less of an invalid. These circumstances may be considered in construing this document. It is true the paper says that "Mr. and Mrs. Geo. B. Wandling will make their home at 704 Bennington with Mrs. J.H. Gallop" (italics ours), but that is not all, for the writing continues "for one or two years, if they wish, and furnish heat, water, light and board for same." It is clear the paramount purpose of this writing was to insure defendants that they could make their home at said place if they wished for one or twoyears, and that their right was not restricted to living therewith Mrs. Gallop and terminated at her death, as argued by respondents' learned counsel. The words "with" her, in the connection in which they were used, were simply intended to further designate the premises or place where defendants could make their home. The subsequent provisions in the memorandum that the defendants were to furnish Mrs. Gallop with board and supply everything necessary for the household shows that they were put in possession and were the tenants of Mrs. Gallop and that she was to make her home or live with them. Indeed, the complaint alleges that the premises were demised or let to the defendants. Although nothing was said about it in the document, Mrs. Gallop being an invalid, it is not unlikely that the parties had that in mind, and therefore they provided that defendants might remain in the property, if they wished,
for one or two years, so that their right, to remain if they wished, would not terminate in case anything happened, such as death, to Mrs. Gallop, before that time. A written lease for a definite time expressly stated in the lease will not be presumed to expire with the death of the landlord in the absence of a provision to that effect in the lease.
We therefore hold that defendants' term had not expired by the terms of their lease when this suit was brought and they were not guilty of unlawful detainer. Whether defendants were obligated to pay the reasonable value of the use of the premises as rent after the death of Mrs. Gallop, or whether under the lease made the only rent to be paid by them for the entire term was the board and care for Mrs. Gallop, which defendants supplied, we need not consider or decide on this appeal. It is not before us.
III. But we are cited to the case of Shouse v. Krusor,24 Mo. App. 279, as decisive of this case against appellant. We do not so consider it. In that case a mother owned one undivided fifth of a farm, and her son owned an undivided two-fifths interest therein. "In the early part of 1883 these partiesDistinguishing entered into an arrangement by which Mrs. BurrussShouse Case. let her said son have possession of her one-fifth and also some money belonging to her, in consideration he would furnish her a home at his house, take care of and provide for her. The lease began on the first day of March, 1883. She, accordingly, went to her son's house and so continued to live with him until in the month of January, 1884, when she went on a visit to her daughters and sickened and died on the 9th day of April, 1884. From the testimony of the witnesses it would appear as if they regulated the lease arrangement as a letting from year to year. At all events, the son continued to hold the land up to the time of his mother's death and until he died in the fall." The court, per PHILIPS, J., said, page 281: "Although some of the witnesses speak of
the contract as a renting from year to year, it is the clear meaning of the contract that the arrangement should continue no longer than the natural life of the lessor, as the consideration of the letting was that the lessee should provide her a home. The term ended with her death." That case is clearly distinguishable from this. There no written agreement expressly gave the tenant a definite term, as in this case. There the lease expired, there being no term expressly fixed, by inference, upon the death of the mother. Here there is an express provision in the lease fixing the term of the tenancy at one or two years at the option of the tenants, without reference to the death of the landlord or any other contingency or condition. The maxim, expressum facitcessare tacitum applies.
The result is, the judgment below is reversed, with directions to the court to enter judgment for the defendants.