concurring in result.
The essential facts as carefully detailed in the principal opinion are not in dispute, but there may sometimes be jury issues even where the facts are undisputed. It is unfortunate that the trial judge saw fit to direct a verdict for the defendant rather than submitting the case to the jury, which then might have settled matters by itself returning a verdict for the defendant, so that the lengthy appellate proceedings would be avoided. If the jury had found for the plaintiff the trial judge could have corrected the situation by sustaining a motion for judgment n.o.v., if persuaded, as he was, that the plaintiff had not made a submissible case. It is almost always better to take the little extra time that is involved in submitting a case such as this to the jury, rather than directing a verdict.
I am nevertheless of the opinion that the judgment for the defendant is correct, although my reasons are substantially different from those set out in the principal opinion. I therefore concur in the affirmance of the judgment.
The plaintiff lessee brought an action of forcible entry under § 534.020, RSMo 1978,1 challenging the defendant city’s use of self-help in taking possession of the factory property which it had leased to the plaintiff, removing the plaintiff’s property from the premises and into storage, and putting another tenant in possession. If a tenant in possession is dispossessed in any of the ways set out in that statute the tenant is entitled to be restored to possession even though the landlord, rather than the tenant, might have been entitled to recover possession by going to law rather than taking the law into its own hands. Just as when the football referee throws his flag, the play must be run over, even though there may have been a long gain and the infraction may have had no discernable effect on the play. Lucas Hunt Village Co. v. Klein, 358 Mo. 1054, 218 S.W.2d 595 (1949). The statute expresses a policy of discouraging self-help and encouraging the use of the processes of the law.
*520The plaintiff, however, must meet the rather strict requirements of the statute. Cf. Waring v. Rogers, 286 S.W.2d 374 (Mo.App.1956), as to the unlawful detainer portion of Chapter 534. The drastic remedy provided in this chapter is not lightly given.
The principal opinion holds that the plaintiff did not have “possession” of the factory property at the time the city took over, and therefore is not entitled to bring an action for forcible entry. This holding is not supported by the cases. The plaintiff had entered into possession under a valid lease. It found production unprofitable and therefore discontinued it. The lease did not require it to continue production, and allowed use of the premises for “any and all purposes allowed by law.... ” It then sought to find a subtenant or assignee for the lease. The lease did not preclude this. The lessee not only met its financial obligations under the lease, including the payment of rent, but also caused one of its employees to check the premises twice weekly, and continued heating and required maintenance of the premises. It did deliver a set of keys to the city, but as part of an arrangement for mutual benefit, and with no purpose of surrendering its lease. “Possession” has never been construed to require a total presence.2 It consists both of a physical connection and a demonstrated intent. The plaintiff’s initial possession was lawful.3 The evidence, shows that the plaintiff sought to maintain and preserve its rights, and that it regularly attended the premises after the factory operations ceased. In situations in which the tenant had no more presence than this one has, the required degree of possession has been found.4 I simply cannot agree that this plaintiff, as a matter of law, was not in possession of the leased premises at the time the city took over.
There is another reason, however, why the plaintiff cannot maintain an action of forcible entry. The governing statute, § 534.020, sets out numerous situations which constitute the offense of “forcible entry.” Most involve the use of force, which the city’s entry does not. The closest one to this case, and the one argued by the tenant, is that of “putting out of doors or carrying away the goods of the party in possession.” The city did not commit this offense. It notified the plaintiff of its election to terminate the lease, for breach of expressed covenant. It then entered with the key furnished by the plaintiff. It did not set the plaintiff’s 10' by 12' stack of goods on the street, but rather undertook to store this property, which the plaintiff had caused to be placed on the premises after receiving the notice in order to demonstrate its contention, subject to the plaintiff’s direction. There is no evidence of any damage to these goods. The record simply does not show the conduct which is necessary in order to invoke the forcible entry statutes, and the plaintiff, therefore, cannot maintain a forcible entry action so as to be entitled to judgment without a showing of ultimate right to possession.
The plaintiff might nevertheless maintain a claim for unlawful detainer if it can show, pursuant to § 534.030, that it was entitled to possession and that the defendant city wrongfully dispossessed it. The pertinent part of the statute permits the action under circumstances as follows:
*521[W]hen any person wrongfully and without force, by disseisin, shall obtain and continue in possession ..., and after demand made ... shall refuse or neglect to quit such possession....
The difference between a forcible entry action and an unlawful detainer action is that, in the latter, the plaintiff must show the ultimate right to possession. It is entirely appropriate to treat the plaintiff’s complaint in forcible entry as an unlawful detainer action. Both actions are provided for by § 534.060. The statutes are survivors of the former justice and magistrate practice, and pleadings are somewhat informal. Even if the case is treated as an unlawful detainer, however, I conclude that, under the conceded facts, the plaintiff did not make out a case.
The lease provides that the lessor city may terminate it if the premises are “vacant or deserted” for more than 60 days. The city gave appropriate notice of termination. I am convinced that the premises were vacant as a matter of law, and that the city’s notice was effective. The trial court did not err, then, in directing a verdict for the defendant, even though the defendant had the burden of proving breach of condition. Cases in which a verdict is properly directed in favor of the party having the burden of proof are somewhat rare, but a verdict may be so directed when entitlement is established by evidence which is binding on the party against whom the verdict is directed.5 Here the plaintiff’s own evidence shows that it ceased manufacturing operations and moved all property useful in its manufacturing operation from the leased premises, with no intention of resuming operations. Its effort at storing some property not used in the manufacturing operation on the premises came only after the city had served a notice of termination. The premises, under these circumstances, were vacant as a matter of law.
The term “vacant” is a word which these parties selected for their contract. In contrast to “possession,” it is not primarily a legal term. The dictionary definition is as follows: (Webster’s Third New International Dictionary)
2. Being without content or occupant 4. free from activity; free from work or occupation.
The defendants emphasize the purpose of the publicly financed manufacturing plant, which was to provide jobs for the city of Paris. The lease did not contain a covenant requiring the continuation of manufacturing operations, nor did it contain a covenant against subleasing. The plaintiff, then, acted within its rights in ceasing operations and in trying to find a subtenant or assign-ee. But the city was not without protection. The sixty-day provision limited the time that the plaintiff could leave the property vacant without putting its tenancy in jeopardy. The property was vacant in the sense in which the parties used the term, despite the bi-weekly visits and repair activities, and there is no basis in the evidence for the jury to find otherwise. The notice of termination, then, was in order, and the defendant city was entitled to possession. The notice was effective when received, and the city’s rights were not lost by reason of the tenant’s later claim and actions. It is more satisfactory to place our decision on the contract term, “vacant,” which was chosen by the parties for this particular situation, rather than proceeding on the legal meaning of “possession,” which would result in a holding potentially affecting the entire course of the law, including many vastly different fact situations. The construction of the contract, of course, is for the court.6
*522It is not necessary to consider the meaning of the term “deserted,” inasmuch as “vacant” and “deserted” appear disjunctively. “Vacant” might indicate a state of occupancy, whereas “deserted” more appropriately describes a state of mind. The city may justify its right to possession by showing either.
The term “vacant” was inserted in the lease to protect the defendant lessor, the city, against events such as happened in this case. It is to be regretted that the city took the law into its own hands and used self-help, rather than availing itself of available legal process. The key was not delivered to it as a voluntary surrender. By its actions the city has caused problems for courts at three levels, and this decision here has not been an easy one.
Although I initially entertained serious doubts, I am now persuaded that the judgment was for the right party and that it is properly affirmed. I therefore concur in the result reached by the principal opinion.
. Section 534.020, RSMo reads as follows:
If any person shall enter upon or into any lands, tenements or other possessions, with force or strong hand, or with weapons, or by breaking open the doors or windows or other parts of a house, whether any person be in it or not, or by threatening to kill, maim or beat the party in possession, or by such words or actions as have a natural tendency to excite fear or apprehension of danger, or by putting out of doors or carrying away the goods of the party in possession, or by entering peaceably and then turning out by force, or frightening, by threats or other circumstances of terror, the party out of possession, and detain and hold the same — in every such case, the person so offending shall be deemed guilty of a “forcible entry and detainer” within the meaning of this chapter.
. In Bartlett v. Draper, 23 Mo. 407, 409 (1856), this Court approved an instruction as follows:
In order to constitute possession in plaintiff, it, is not necessary that he should stand on the land, or keep servants or agents there; but any act done by himself on the premises .indicating an intention to hold the possession thereof to himself, will be sufficient to give him the actual possession.
. This distinguishes such cases as Lindsay v. McLaughlin, 311 S.W.2d 148 (Mo.App.1958);
Hafner Manufacturing Co. v. City of St. Louis, 262 Mo. 621, 172 S.W. 28 (1914); Underwood v. City of Caruthersville, 197 Mo.App. 358, 194 S.W. 1090 (1917); Dyer v. Reitz, 14 Mo.App. 45 (1884), all cited in the principal opinion.
.See Bartlett v. Draper, note 2, supra; Miller v. Northup, 49 Mo. 397 (1872); St. Louis A. & M. Association v. Reinecke, 21 Mo.App. 478 (1886), all cited in the principal opinion. See also Purcell v. Merrick, 172 Mo.App. 412, 158 S.W. 478 (1913); Robinson v. Ramsey, 190 Mo. App. 206, 176 S.W. 282 (1915); Richardson v. Liggett, 453 S.W.2d 249 (Mo.App.1970).
. In Wendorff v. Missouri State Life Insurance Co., 318 Mo. 363, 369-70, 1 S.W.2d 99, 101 (1927), the court held that a verdict could be directed in an affirmative defense
[w]hen the proof is documentary, or the defendant relies on the plaintiffs own evidential showing (or evidence which the plaintiff admits to be true) and the reasonable inferences therefrom all point one way, ...
. See, e.g. Commerce Trust Company v. Howard, 429 S.W.2d 702, 705-06 (Mo.1968); O'Brien v. Missouri Cities Water Co., 574 S.W.2d 13 (Mo.App.1978).