Champ Spring Co. v. B. Roth Tool Co.

• Decision Date: 11 November 1902
• Citation: 96 Mo. App. 518,70 S.W. 506
• Parties: CHAMP SPRING CO. v. B. ROTH TOOL CO.<SMALL><SUP>*</SUP></SMALL>
• Court: Missouri Court of Appeals

70 S.W. 506

96 Mo. App. 518

CHAMP SPRING CO. v. B. ROTH TOOL CO.^*

Court of Appeals at St. Louis, Missouri.

November 11, 1902.

APPEAL — OBJECTIONS NOT RAISED BELOW — UNLAWFUL DETAINER — AMENDMENT — RES JUDICATA.

1. The objection that a complaint or petition states two causes of action in the same count is not available to the other side on appeal unless some objection was made on that ground in the trial court.

2. In order to make a case of unlawful detainer, defendant must be shown to have wrongly detained the premises at the institution of the action, and it is better pleading to aver that fact; but, where the complaint was objected to at the trial solely on other grounds, that defect was waived.

3. An amendment was properly permitted in the circuit court increasing the amount of damages claimed in this case.

4. In a former action between these parties, it was adjudged, on evidence not materially different from what is contained in the present case, that the defendant's term expired on September 30, 1901, and said judgment is conclusive on that issue.

(Syllabus by the Court.)

Appeal from St. Louis circuit court; Wm. Zachritz, Judge.

Action by the Champ Spring Company against the B. Roth Tool Company. Judgment for defendant, and plaintiff appeals. Reversed.

On the 15th day of March, 1897, the Champ Spring Company leased certain premises in the city of St. Louis to E. B. Roth, Charles Roth, and William Boefer, their successors and assigns, who subsequently incorporated as the B. Roth Tool Company, which succeeded to their rights under said lease, and is the respondent in the present case, — an action of unlawful detainer by the Champ Spring Company against the B. Roth Tool Company to recover possession of the leased premises. The action was begun on November 29, 1901, before a justice of the peace, on a complaint which charged that the Champ Spring Company was entitled to possession of the premises on the 16th day of September, 1901, and on the 1st day of October, 1901, and that on the last date the defendant willfully and without force held over the leasehold premises (describing them) after the termination of the term for which they were let, for which unlawful detention $2,500 were prayed as damages, and the value of the monthly rents and profits of the premises, laid at $200. It seems the petition originally called for $500 damages, and was amended in the circuit court, against defendant's objection, to read $2,500, and a point is made against plaintiff's right to that amendment. One clause of the lease reads as follows: "This lease may be terminated at any time after June 15, 1898, by either party giving six months' notice in writing;" and pursuant to that clause, a notice was addressed to and served on the respondent March 30, 1901, stating that the lease required the Champ Spring Company to give the respondent six months' notice in writing to terminate, and that the Champ Spring Company therefore notified the defendant the lease would expire six months from the date of the notice, which expiration fell on the 30th day of September, 1901. On August 14, 1901, a second notice was served, to the effect that the tenancy of the respondent would be terminated on the 15th day of September, with a request that the premises be surrendered at that date; the last notice being given on the theory that the tenancy created by the lease was from month to month, and could be ended by a written notice of 30 days. The case resulted in a judgment in favor of the Roth Tool Company before the justice of the peace, from which the Champ Spring Company appealed to the circuit court, where, on a trial de novo, the court gave an instruction at the close of all the testimony nonsuiting the plaintiff. Most of the facts material to the determination of the present case were in evidence and before the circuit court and this court in an injunction suit of B. Roth Tool Co. v. Champ Spring Co., 67 S. W. 967, in which the Roth Tool Company obtained an order restraining the Champ Spring Company from turning off steam which was to be furnished to the Roth Tool Company until the 30th day of September, 1901; the lease containing a covenant that steam should be furnished for the operation of the lessee's plant during the continuance of the term. On the trial of this case the petition in that...