
    Bless et al. v. Jenkins et al., Appellants.
    
    Division Two,
    July 2, 1895.
    1. Practice: contract of renting: petition: answer: statute of frauds. In an action for rent, where the petition sets forth a eon-tract of renting at a monthly rental in advance, and the entry and occupation of the premises hy the defendants, and the answer neither denies the contract nor admits it, and pleads the statute of frauds, the statute can not he availed of as a defense upon the trial.
    
      2. -: parol contract: performance: statute of frauds. The complete performance of a contract, not in writing, by one contracting party preeludes the other from interposing the statute of frauds as a defense to an action upon it.
    3. -: parol lease: performance: statute of frauds. Where the lessor completely performed the contract on his part by putting the lessee in possession, and the latter voluntarily quit before the expiration of his term, he can not defeat an action for rent for the remainder of the term upon the ground that the contract was within the statute of frauds and the lessor could have expelled him by giving him thirty days’ notice.
    4. Lease .under Seal: agent: ratification: statute of frauds. A lease, under seal, executed by one purporting to be the agent of the owner, may be ratified by the latter so as to take it out of the statute of frauds, such statute not requiring a lease to be under seal.
    5. -: -: -: -. Putting the lessee in possession by the owner, in such case, and the acceptance of rent by the latter in conformity with the terms of the lease constitute ratification.
    6. Lease: possession of lessee: estoppel. A lessee who enters into possession under a lease and enjoys the advantages conferred by its terms, will be estopped from denying its validity, although it be ' formally invalid.
    7. -: notice of intention to quit. A lessee of land from tenants in common must serve notice of his intention to quit on each of the lessors.
    8. -: -: service by mail. Notice to quit served on the lessor by the lessee by mailing a stamped letter to the former is sufficient, but where there is no evidence that the letter so mailed was stamped, it will not constitute prima facie evidence of service of notice.
    9. -: -: SUBLETTING PART of premises. A lessee who sublets a portion of the leased premises can not quit by surrendering possession of the part retained, so as to escape payment of rent for the whole.
    10. -: -: -. Notice to quit, served on the subtenant by the lessee, in this ease held insufficient.
    11. -: SUBLETTING PART OF PREMISES: AGREEMENT BY SUBTENANT to pay rent. Agreement by a subtenant to pay rent to the landlord will not exonerate the tenant from payment of rent for the part of the premises sublet, unless the landlord accepted the subtenant as his tenant.
    
      
      Appeal from Jackson Circuit Court. — Hon. Jambs G-xbson, Judge.
    Aeeikmed.
    Action for the sum of $2,700 and interest for rent due plaintiffs for certain premises rented to defendants.
    On February 13, 1888, plaintiffs made a lease of their entire three and four story building, 615 Main street, Kansas City, Missouri, to a firm known as J. W. Jenkins & Son, composed of J. W. Jenkins, Senior, the father of these defendants, and John W. Jenkins, Junior, one of these defendants, for a term of three years from April 1, 1888, ending April 1,1891, for a rental of $400 per month, payable monthly in advance. .The said firm of J. W. Jenkins & Son then sublet and leased a part of the second floor and all of the third and fourth floors to Margaret W. Carpenter for a photograph gallery for the same period of time, to wit: from April 1, 1888, to April 1, 1891.
    J. W. Jenkins, Senior, died in 1890. The rent of $400 per month was still paid regularly after the death of J. W. Jenkins, Senior, and plaintiffs made no change in their lease or rental to the firm of J. W. Jenkins & Son until about February 1, 1891, at which time defendant John W. Jenkins, Junior, a member of the old firm of J. W. Jenkins & Son, requested a reduction in rent for the month of January, which he had not yet paid, and February and March, 1891, and plaintiffs threw off $100 per month for these three months.
    On February 9, 1891, plaintiffs Peter Bless and Theodore Peltzer entered into an agreement with defendant John W. Jenkins and C. W. Jenkins whereby plaintiffs rented to defendants the brick store building, three and four stories high, situated at 615 Main street, Kansas City, Missouri, for a term of fifteen months from April 1, 1893, and defendants agreed to pay them for the use and rent therefor the sum of $300 per month, payable monthly in advance. This agreement was put in writing and signed by defendants in person, but plaintiffs’ names were signed to this lease byMuehlehester & Jaiser as their agents.
    These defendants, on April 1, 1891, under this agreement entered upon their tenancy and occupied the first and second floors as dealers in pianos, musical instruments, etc., and began paying rent to plaintiffs under such rental agreement in writing made February 9, 1891, for said term of fifteen months, from April 1, 1891. Defendants paid their rent of $300 per month regularly under such rental from April 1, 1891, to October 1,1891.
    A few weeks after the agreement of February 9, 1891, whereby plaintiffs rented the entire three and four story building of 615 Main street to defendants for a term of fifteen months, beginning April 1, 1891, at a rental of $300 per month, defendants rented to Margaret "W. Carpenter the third and fourth story of the building for a photograph gallery, for a term of fifteen months, at an agreed rental of $35 per month from April 1,1891, and on March 10, 1891, C. W. Jenkins, one of the defendants, gave Carpenter a ¡statement in writing as follows, to wit: “We agree to accept $35 a' month, for fifteen months, from April 1,1891, for third floor, 615 Main street.”
    In pursuance thereof, on April 1, 1891, Mrs. Carpenter made a change and moved her entire gallery up from the second floor into the third and fourth story of this building, and entered upon her tenancy of fifteen months from April 1, 1891, and paid her rent to defendants of $35 per month accordingly, from April 1, 1891, to October 1, 1891, and occupied said third and fourth floors until July 1, 1892, and tendered the rent regularly each month to defendants, from October 1, 1891, to July 1, 1892. On August 5, 1891, defendants, claiming that this lease made to defendants by plaintiffs for the term of fifteen months, from April 1, 1891, was not signed by plaintiffs nor by agents duly authorized in writing, gave a written notice to Theodore Peltzer, stating that “We propose to end our tenancy of your building, No. 615 Main street, Kansas City, Mo., now occupied by us for the sale of pianos, musical instruments, etc., on the thirtieth day of September, 1891, when we will deliver possession thereof to you.”
    On September 30, 1891, defendants moved their stock of goods out of the first and second stories of the building, and M. Campbell, their attorney, sent the keys to the first and second story, by letter, 'to the office of Muehlchester & Jaiser, who found them in their office on the morning of October 1, 1891. Muehlchester & Jaiser on the same morning returned the keys to the sender, M. Campbell, defendants’ attorney.
    The defendants left the third and fourth stories still occupied by Mrs. Carpenter, with her photograph gallery, who continued to occupy such part of the building until July 1, 1892, under her rental agreement with defendants for a term of fifteen months from April 1, 1891. Defendants did not give the Carpenters thirty' days’ notice to vacate the premises, and took no steps whatever to vacate this building or to terminate the tenancy of Mrs. Carpenter or to put her out of the building, and did not offer or attempt to turn any part over to plaintiffs on September 30,' 1891, except the first and second stories, which plaintiffs refused to accept.
    Plaintiffs demanded the rent of defendants, viz.: $300 every month for nine months from October 1, 1891, to July 1, 1892, amounting to $2,700, and on defendant’s refusal to pay, instituted this action for the recovery thereof, with interest.
    At the close of the evidence the court of its own motion gave the jury a peremptory instruction to find for plaintiff for $300 per month for each of the months sued for, with lawful interest from the time of each monthly demand. The jury obeyed this instruction, and on the verdict judgment went from which defendants have appealed. Other facts as necessary will hereafter appear.
    
      M. Campbell for appellants.
    (1) The court erred in admitting in evidence the sealed writing purporting to be a lease for three years from Bless & Peltzer to J. W. Jenkins & Son, dated February 13, 1888, for the premises in suit. (2) The court erred in admitting in evidence the sealed writing purporting to be a lease for fifteen months from April 1, 1891, from plaintiffs to defendants, dated February 9, 1891, for the premises in suit. Both of said papers were subscribed by the • agents, Muehlchester & Jaiser, who wrote plaintiffs’ names to the papers without any authority in writing to do so. Secs. 5182 and 6371, R. S.; Taylor’s Landlord and Tenant, 107; Jennings v. McComb, 112 Pa. St. 518; Bacon v. Parker, 137 Mass. 309; PLoivard v. Faston, 7 Johns. 205; Biedler v. Fish, 14 111. App. 29; Blood v. Goodrich, 9 Wend. 68. The papers are sealed instruments, and bar a recovery in this suit if held to be valid. Sec. 6375, R. S.; Kiersted v. Railroad, 69 N. T. 343; Codmanv. Jenkins, 14 Mass. 93. (3) The court erred in peremptorily instructing the jury to find all the issues for plaintiffs. This is presumptively erroneous when the pleadings present-issues of fact, with the burden of proof on plaintiffs. Barry v. Otto, 56 Mo. 177; Ligget v. Morgan, 98 Mo. 39; Warner v. Hale, 65 111. 395; Walker v. Kansas City, 99 Mo. 647; Schroeder v. Railroad, 108 Mo. 322; Robertson v. JDrane, 100 Mo. 273; Wolf v. Campbell, 110 Mo. 114. That no such conclusion follows from the writings erroneously in evidence is implied by the form of the petition (sec. 6374, R. S.)7 by the statute of frauds (sec. 5182, R. S.), and was conceded at the trial. Authorities first and second assignment. And those writings were not validated, even if acted on. Withnell v. Petzold, 104 Mo. 409; Hally v. Reading, 107 Mo. 350; Brightman v. Hicks, 108 Mass. 246; Warner v. Hale, 65 111. 395. Nor does such conclusion follow from occupancy by defendants. Personally or by agents they did not occupy, or use the building after September 30, 1891. Bates v. Phinney, 45 Mich. 388. Nor does it follow from the occupancy of Carpenter. It is a question of fact whether Mrs. Carpenter did not agree that her subtenancy under defendants terminated September 30, 1891. See. 6372, R. S.; Forbes v. Smiley, 56 Me. 174; Fngels v. Mitchell, 30 Minn. 122. It is the affirmance of the law that when the tenancy of defendants ended, Mrs. Carpenter, their subtenant, became instantly the tenant of plaintiffs at sufferance. 1 Washb. on R. P. 393, chap. 12; 2 Blackst, Com. 150; Meier v. Thieman, 15 Mo. App. 307; Rising v. Stannard, 17 Mass. 282; Hootenv. Holt, 139 Mass. 54; Reed v. Reed, 48 Me. 388; Abeel v. Hubbell, 52 Mich. 37; • Mendell v. Hall, 13 Bush. 232; Recklow v. Shank, 43 N. Y. 448. Subject to be dispossessed by plaintiffs at any time. Emmons v. Scudder, 115 Mass. 367; Dixon v. Haley, 16 111. 145; Joy v. McKay, 70 Cal. 445; Smith v. Littlefield, 51 N. Y”. 539. And that the tenancy of the defendants was a tenancy from month to month results from the fact that Muehlchester & Jaiser had .no authority in writing to sign plaintiff’s name to the alleged lease for fifteen months. Secs. 5182 and 6371, R. S. And the written notice served on defendants on August 5, 1891, ended that monthly tenancy on September 30, 1891, and disrupted the relation of landlords and tenants between those parties. Secs. 6371 and 6365, R. S.; Tiedeman on Real Property, sec. 219; Boone on Real Property, sec. 124; 1 Washburn on Real Property, subd. 13, sec. 2, chap. 11; 12 Am. and Eng. Encyclopedia of Law, 679. Nor is there the slightest evidence of any intention on their part to waive that effect. 1 Washb. onR. P. 385; Tiedeman on R. P., sec. 219; Boone on R. P., sec. 124; Doe v. Palmer, 16 East. 53; Kimball v. Rowland, 6 Gray, 224. And there is no liability for rent after defendants thus ceased to be plaintiffs’ tenants. Hood v. Mathis, 21 Mo. 308; Cohen v. Kyler, 27 Mo. 123; Hutton v. Powers, 38 Mo. 353; Edmundson v. Kite, 43 Mo. 176. On the contrary, holding over after such notice given subjects the former tenant to a statutory penalty for ‘‘double rents,” as it is called, and makes him a tort feasor. Sec. 6365, R. S.; Fitzpatrick v. Childs, 2 Brewst. (Pa.) 365; Brown v. Keller, 32 111. 151. To recover which penalty plaintiffs must state and prove facts under which it arises. Link v. Vaughn, 17 Mo. 585; Ramsey v. Henderson, 91 Mo. 560; Knoop v. Kelsey, 102 Mo. 291. It is quite obvious that the notice was well served on plaintiffs. Hedrick v. Beeler, 110 Mo. 91; Huntley v. Whittier, 105 Mass. 391; Rosenthal v. Walker, 111 U. S, 185; Meier v. Blnme, 80 Mo. 180; Walker v. Sharpe, 103 Mass. 154.
    
      C. O. Tichenor and Walter A. Powell for respondents.
    (1) There is no privity between the landlord and a subtenant; the subtenant is not his tenant and he can not sue him for rent on the lease. Campbell v. Stetson, 2 Met. 504; Dunlap v. Bullard, 131 Mass. 161; 
      Harding v. Crethorn, Esp. 57. “Where the lessee puts another in possession who holds over, it shall be considered as the holding over of the lessee.” Waring v. King, 8 Meeson & W. 571; Brewer v. Knapp, 1 Pick. 335; Bacon v. Brown, 9 Conn. 338; Haynes v. Aldrich, 133 N. Y. 289. “If at the expiration of the term, the possession of the premises is retained by an under-tenant, the original lessee will remain liable to the lessor; for he is entitled to receive the absolute possession at the end of the term. But it may be proved that he has accepted the undertenant as his tenant, in which case the lessee will be absolved from further liability.” Wood on Landlord & Tenant, sec. 481, p. 1144; Constant v. Abell, 36 Mo. 174; LubetMn v. Bretving Co., 21 Abbott N. C., 304. Even if defendants could have surrendered their lease with their tenant without her consent, to plaintiffs, yet in any event it must have been “by mutual agreement” between plaintiffs and defendants. Wood on Landlord & Tenant, sec. 484, p. 1151. A tenant can not surrender or cancel his lease without the assent of subtenant, even while the original lease provides for it, except in accordance with the terms of the said lease on that subject. Ften v. Luyster, 60 N. Y. 252. So here the most that can be claimed is that if plaintiffs had accepted the possession of the building with the subtenant in it, they would, by means of this mutual agreement, have been substituted as the landlord of this subtenant in place of defendants. (2) If one directs another to sign his name to a writing, it is as if he signed it himself. Gardner v. Gardner, 5 Cush. 483; Ins. Co. v. Brown, 30 N. J. Eq. 202; Fggleston v. Wagner, 46 Mich. 618; Frost v. Beering, 21 Me. 159. (3) The lease was most certainly ratified by plaintiffs; they knew its terms because they had agreed upon them before they were reduced to writing; they took six payments of rent under the lease; each payment, was $100 less than they had been getting. They intended the lease to be binding on them in the first instance, for they directed its execution. Story on Agency [9 Ed.], secs. 240, 241, 242; Bank v. Gay, 63-Mo. 39; Ferris v. Thaw, 72 Mo. 450; Campbell v. Pope, 96 Mo. 468; Soc. v. Paddock, 80 111. 266. A lease need not be under seal. Johnson v. Hoffmann, 53 Mo. 507; Gay v. Ihm, 3 Mo. App. 588. If for less than three years, a lease can be sold under an execution from a justice of the peace. Gun v. Sinclair, 52 Mo. 331. And where a contract which need not be under seal is executed by an agent having authority to execute any simple contracts, the contract, although under seal, will be held binding on principal as a simple contract. State v. Railroad, 8 S. C. '170; Hmiter v. Parker, 7 Mees. & W. 343; Wood v. Railroad, 8 N. Y. 167; Worrall v. Munn, 5 N. Y. 229, and cases cited in opinion; Roby v. Cassitt, 78 111. 648; Holbrook v. Chamberlin, 116 Mass. 161; Biedler v. Fish, 14 111. App. 29.
   Sherwood, J.

Various questions of interest arise

on this record, and will now be considered. These questions relate to the statute of frauds, ratification, estoppel, tenancy, and surrender. Of these in their order.

1. a. Relative to the statute of frauds, it may be said that the petition in substance and effect sets forth a contract of renting by plaintiffs to defendants of the premises for the term of fifteen months, at a rental of $300 per month payable monthly in advance, beginning April 1, 1891, and ending July 1, 1892, and the entry and occupation of the premises by defendants under that contract from the date first aforesaid until the date last aforesaid. The answer does not deny the contract of renting, nor does it admit it and plead the statute' of frauds as a defense.

Now, the rule' is well settled in this state that where, in circumstances like the present, a party would take advantage of the statute of frauds, he must either deny the contract, or else admit it and plead the statute. Defendants were therefore in no position to successfully raise the invalidity, of the contract by reason of its nonconformity with that, statute. Wildbahn v. Robidoux, 11 Mo. 660; Hook v. Turner, 22 Mo. 333; Allen v. Richard, 83 Mo. 55.

b. But if defendants by the state of their pleading were in a condition to use the statute as a shield, they would be precluded from so doing, because the evidence shows that the contract was completely performed on the part of the plaintiffs by defendants being placed by the former in the possession of the premises and remaining there so long as they would. In such circumstances as these, though the contract be not in writing, the statute will be invoked in vain; the complete performance of the contract by one contracting party forecloses his adversary from interposing the statute of frauds as a defense. Blanton v. Knox, 3 Mo. 342; Pitcher v. Wilson, 5 Mo. 48; Suggett’s Adm’r v. Cason’s Adm’r, 26 Mo. 221; Self v. Cordell, 45 Mo. 345; McConnell v. Brayner, 63 Mo. 461.

c. Nor will it do to urge that plaintiffs could have expelled defendants prior to the expiration of the fifteen months by giving them thirty days’, notice. In an instance similar to the present one, in all essential particulars, and where likewise a defense of the statute of frauds was interposed in an action for rent, it was said in argument for the defendant that the contract on the lessor’s part was not yet completed, that there yet remained a duty on his part to permit the lessee to enjoy the premises for the remaining two years, that portion of the lease created by parol, and in replying to this, Philips, Commissioner, aptly said: “This is simply a refinement. He had the possession, and did not enjoy the fruit because he would not pluck it.” Winters v. Cherry, 78 Mo. 344.

d. But in addition to the .foregoing reasons, others readily occur why the defense of the statute of frauds must prove unavailing. That statute does not require that a lease or indeed any instrument should be under seal. Admit, then, that plaintiffs’ agents had no authority to bind them by a sealed instrument, still the unauthorized and unnecessary seal may be treated as superfluous and disregarded, and the sealed instrument deemed an unsealed one, and may be ratified as asimple contract in writing. Mechem, Agency,, secs. 95 and 141 and cases cited.

And that a simple contract in writing made without authority is susceptible of oral ratification no one questions. In illustration of this point is the early case of Maclean v. Dunn, 4 Bing. 722, where Lord Chief Justice Best said: “It has been argued, that the subsequent adoption of the contract by Dunn will not take this case out of the operation of the statute of frauds; and it has been insisted, that the agent should have his authority at the time the contract is entered into. If such had been the intention of the legislature, it would have been expressed more clearly, but the statute only requires some note or memorandum in writing, to be signed by the party to be charged, or his agent therewnto lawfully authorised; leaving us to the rules of common law, as to the mode in which the agent is to receive his authority. Now, in all other cases, a subsequent sanction is considered the same thing in effect as assent at the time. Omnis ratihabitio retrotrahitur et mandato aequiqgaratur. And in my opinion, the subsequent sanction of a contract signed by an agent, takes it out of the operation of the statute more satisfactorily than an authority ■ given beforehand. Where the authority is given beforehand, the party must trust to his agent; if it be given subsequently to the contract, the party knows that all has been done according to his wishes.” .

e. There are authorities also which hold that one partner may ratify by parol an act under seal done by his copartner. Gwinn v. Rooker, 24 Mo. 290; 3 Kent, Com. [13 Ed.] 49; Story, Part., sec. 117.

/. The doctrine has in some instances been ■extended beyond the limits here mentioned, so as to ■embrace cases where one person not sustaining the relation of partner to another may execute an instrument under seal and the same maybe ratified by matter in pais with like effect as were they partners. This is the rule announced in Massachusetts. Holbrook v. Chamberlin, 116 Mass. 155 and cases cited.

g. In Worrall v. Munn, 1 Seld. 229, after an elaborate review of the authorities, it is there said: “These authorities show that there is no distinction between partners and other persons in the application of the modern rule, that wherever an instrument would be effectual without a seal, it would be valid and bind-on the principal, although executed under seal by an agent without authority by deed, if authorized by a previous parol authority, or subsequently ratified or adopted.by parol.” 1 Seld. loe. cit. 243 and cases cited. See, also, Hunter v. Parker, 7 M. & W. 322; State v. Spartansburg, etc., Railroad, 8 S. C. 129; Hammond v. Hannin, 21 Mich. 374; Adams v. Power, 52 Miss. 828; State v. Shaw, 28 Iowa, 67.

As the result of these authorities, it should be held that the act of plaintiffs in putting defendants into possession of the premises, which they did on April 1, 1891, and the acceptance by them of rent for several months thereafter from defendants in conformity to the written lease, was an ample ratification of that instrument.

hi Besides, the old lease having expired by its own terms on April 1, 1891, defendants were put into possession under and by virtue of the new lease, and enjoyed all the advantages they could have received had the new lease been formally valid in every particular; it does not lie in their mouths to denounce as invalid a lease under and by virtue1 of which those advantages were obtained. Holbrook v. Chamberlin, supra, loc. cit. 161; State v. Shaw, 28 Iowa, loc. cit. 75.

2. a. Furthermore, defendants are liable to plaintiffs for the rent of the premises for the residue of term embraced in the new lease, on other grounds, because, first, they only served notice of their intention to quit on Peltzer alone. The service on Bless would doubtless have been good, had the letter addressed to him through the mail been stamped; but there is no evidence that this was done, and hence there is no prima facie evidence of service of notice on him. Briggs v. Hervey, 130 Mass. 187; because, second, though the notice was served on Peltzer, yet defendants did not comply with its terms; they did not surrender the possession of the .keys only to the first and second stories, and these keys were returned to them, leaving the third and fourth stories in possession of Mrs. Carpenter, their sublessee, whom they had placed in possession of those stories at or about the time of the creation or commencement of the new lease.

Touching the duty of a tenant to surrender the entire premises to his landlord, it is said by an author of eminent merit: “If he has let the whole or any part of the premises to an undertenant, who is in possession at the termination of the lease, he must get him out; otherwise, lie will not be in a situation to render that complete possession to which the landlord is entitled. And unless the entire possession is delivered up, the tenant’s responsibility for rent will continue, although it may have become impossible for him to give the landlord full possession, in consequence of the obstinacy or ill-will of an undertenant, to whom he has let a part or the whole of the premises, and who refuses to quit; for in such case the landlord may refuse to accept possession, and hold the original tenant liable.” Taylor, Land, and Ten., sec. 524. See, also, Lubetkin v. Brewing Co., 21 Abb. New Cas. 304. Eor where the lessee puts another in possession who holds over, it shall be considered as the holding over of the lessee. Brewer v. Knapp, 1 Pick. 335.

b. Not only did defendants fail to surrender possession of the entire premises, but they did not even so much as serve notice on their subtenant, Mrs. Carpenter, to vacate the premises, to wit, the third and fourth stories, nor did they serve any paper at all on her until about a month after they had abandoned the premises, and that did not amount to a notice to quit. That paper and its indorsement are as follow:

“Kansas City, Mo., October 29,1891. “Mrs. Margaret W. and Mr. Marion Carpenter, No. 615 Main street, Kansas City, Mo.
“Me. and Mes. Caebentee: We recall to your mind these facts:
“First. That we informed you that we had terminated our tenancy and occupancy, by written notice to the owners'of No. 615 Main st., Kansas City, Mo.
“Second. That we informed you that our power over and control of any part of said building terminated September 30, 1891, under our notice, and that you-must look elsewhere than to us for permission to occupy any part thereof after September 30, 1891.
“Third. That we informed Mrs. M. W. Carpenter of the names of the owners and that she must thereafter (after1 September 30, 1891) look to said owners for the right to occupy said building and that she assented thereto.
“Fourth. This is for the purpose of recalling our understanding and agreement had in August and September, 1891, and putting it in writing.
“We are not and have not been your landlords in that building since September 30, 1891. The owners of the building, Messrs. Peter Bless and Theodore Peltzer, álone have any claim or right therein or over you so far as we know-. Respectfully yours,
“J. W. Jenkins’ Sons.”

Indorsed on the back as follows:

“Kansas City, Mo., September 30, 1891.
“In consideration of one dollar received by us be it known that any and all right, legal and equitable, which we or any of us may have, or may be supposed to have, in or to No. 615 Main street, Kansas City, Mo.,, we hereby deed to Peter Bless and Theodore Peltzer, including any rights we or any of us may have as landlords heretofore of Margaret W. and Marion Carpenter, photographers in said building.
“Witness our hands and seals this thirtieth day of September, 1891. This is to be read in connection with the within disclaimer of any right held by us.
“J. W. Jenkins, [seal]
“C. W. Jenkins, [seal]
“F. B. Jenkins, [seal]”

c. Of course the service of such unique papers as these was but a futile and fumbling attempt to escape liability.

d. Even had Mrs. Carpenter “agreed” to pay rent to plaintiffs, and she testified she did not, this would not have exonerated defendants from liability therefor unless plaintiffs had likewise agreed to accept her as their tenant; but this they did not do; consequently defendants still remained liable. Clemens v. Broomfield, 19 Mo. 118; Taylor on Landlord and Tenant, secs. 514, 515, 516, 517.

III. In consequence of the foregoing facts, the trial court did right in giving a peremptory instruction to find for plaintiffs, and in refusing instructions asked by defendants opposed to the views hereinbefore expressed.

Discovering no material error in the record, the judgment will be affirmed.

All concur.  