Tobener v. Miller

Missouri Court of Appeals

Tobener v. Miller

68 Mo. App. 569, 1897 Mo. App. LEXIS 396

Missouri Court of Appeals·Decided February 1, 1897·Published·Cited by 1 cases

Opinion

Gill, J.

This is an action for rent of a building in Kansas City. Defendant occupied the premises under the terms of a written lease by which he agreed to'take the building for a period of two years, beginning February 5, 1894. Defendant movéd out about October 5, 1894, paying rent to that date, and this suit is for rent subsequently accruing. The' defense was that by the mutual agreement between the landlord [571] and tenant the lease was terminated or surrendered on October 5, 1894. At the trial in the circuit court defendant was successful and plaintiff appealed.

landlord and deTof ieaser:en‘ statute of frauds. There is no merit in this appeal. Plaintiff’s counsel concedes that there was substantial evidence tending to prove the surrender of the lease; that in pursuance of an oral agree-men^. ^he pr0perty was, on the fifth of October, 1894, turned over to and accepted by the plaintiff, but contends that such parol surrender of a written lease was void under the statute of frauds. Section 5183, R. S. 1889.

The point is not well taken. While a verbal agreement for a surrender could not be enforced, yet when said agreement had been acted upon and performed there arose a surrender by operation of law, and plaintiff was thereafter estopped from claiming any longer under the lease; in other words, “an executed parol agreement to surrender is operative as a surrender.” 2 Woods L. and T. [2 Ed.], secs. 494, 485; Huling v. Roll, 43 Mo. App. 234; Churchill v. Lammers, 60 Mo. App. 244, and authorities cited. Judgment affirmed.

All concur.

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Gill, J.

This is an action for rent of a building in Kansas City. Defendant occupied the premises under the terms of a written lease by which he agreed to'take the building for a period of two years, beginning February 5, 1894. Defendant movéd out about October 5, 1894, paying rent to that date, and this suit is for rent subsequently accruing. The' defense was that by the mutual agreement between the landlord [571] and tenant the lease was terminated or surrendered on October 5, 1894. At the trial in the circuit court defendant was successful and plaintiff appealed.

landlord and deTof ieaser:en‘ statute of frauds. There is no merit in this appeal. Plaintiff’s counsel concedes that there was substantial evidence tending to prove the surrender of the lease; that in pursuance of an oral agree-men^. ^he pr0perty was, on the fifth of October, 1894, turned over to and accepted by the plaintiff, but contends that such parol surrender of a written lease was void under the statute of frauds. Section 5183, R. S. 1889.

The point is not well taken. While a verbal agreement for a surrender could not be enforced, yet when said agreement had been acted upon and performed there arose a surrender by operation of law, and plaintiff was thereafter estopped from claiming any longer under the lease; in other words, “an executed parol agreement to surrender is operative as a surrender.” 2 Woods L. and T. [2 Ed.], secs. 494, 485; Huling v. Roll, 43 Mo. App. 234; Churchill v. Lammers, 60 Mo. App. 244, and authorities cited. Judgment affirmed.

All concur.

Tobener v. Miller, 68 Mo. App. 569, 1897 Mo. App. LEXIS 396 (Mo. Ct. App. 1897).

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Opinion

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