Denecke v. Miller

• Decision Date: 23 January 1909
• Citation: 119 N.W. 380,142 Iowa 486
• Parties: DENECKE v. HENRY F. MILLER & SON ET AL.
• Court: Iowa Supreme Court

142 Iowa 486

119 N.W. 380

DENECKE

v.HENRY F. MILLER & SON ET AL.

Supreme Court of Iowa.

Jan. 23, 1909.

Appeal from Superior Court of Cedar Rapids; J. H. Rothrock, Judge.

Action to recover the possession of certain real estate and damages for the wrongful detention thereof. Defendants claimed to be in rightful possession under a lease. Trial to a jury. Verdict and judgment for plaintiff, and defendants appeal. Affirmed.Jamison & Smyth, for appellants.

Grimm, Trewin & Robbins, for appellee.

DEEMER, J.

Plaintiff is the owner of a certain lot in the city of Cedar Rapids upon which there is a store building, having acquired the same by purchase from one Calder some time in the year 1904. Previous thereto, and on or about January 1, 1903, Calder had leased the storeroom and basement of the building to defendant Henry F. Miller & Son for the term of three years from and after January 1, 1903, with privilege of five, at the monthly rental of $30, payable on or before the 15th day of each month. Miller & Son immediately entered into the possession of the property under the lease, and were in possession when plaintiff bought the property. Among other conditions and provisions of the lease were the following: “And the said party of the second part covenants that it will use said premises as a plumbing store and for no other purpose whatever; that it especially will not use said premises nor permit the same to be used for any unlawful business or any other purpose whatever; that it will not assign this lease or let or underlet said premises without a written consent under the penalty of a forfeiture of all of its rights under this lease.” There was also provision for re-entry in case of breach of any of the covenants or for the recovery of possession by action of forcible entry and detainer.

Some time in January of the year 1906 defendant Terry entered into the possession of the leased property under an arrangement with Miller & Son, and put in a stock of electrical fixtures and supplies, and offered his services to the public as an electrical contractor. The arrangement between Miller & Son and Terry for the occupancy of the property is a matter of dispute; but it is undenied that Terry put in a stock of lamps, shades, cords, sockets, doorbells, combination gas and electric fixtures, wire, batteries, motors, thermostats, etc. As soon as plaintiff learned of Terry's occupancy, he caused notice to be served upon Miller & Son of a forfeiture and termination of the lease, the material parts of which we here copy as follows: “You are further notified that said lease has been forfeited and terminated by you, in that it is covenanted therein that you would use said storeroom as a plumber's store and for no other purpose whatever, and that it is also covenanted therein that you would not assign said lease or let or underlet said premises without the written consent of the lessor under penalty of a forfeiture of all your rights under said lease, but, contrary to the said provisions of said lease, you have been using and permitting said premises to be used for other purposes than a plumber's store, and have underlet said premises to one J. B. Terry, all without the written consent of the undersigned; and you are further notified to quit and deliver up to the undersigned the possession of said premises within three (3) days from the date of the service of this notice, otherwise proceedings will be instituted against you by the undersigned to obtain possession of said premises. Dated at Cedar Rapids, Iowa, this 22nd day of January, 1906. C. Denecke.” Notice was also served upon defendant Terry. As defendants refused to surrender possession, plaintiff on the 26th day of January, 1906, commenced action against the defendants to recover possession of the property, to remove them therefrom for costs, on the theory that the lease had been terminated, and that defendants were holding possession of the property contrary to the terms thereof. No abstract of title was attached to the petition, but it contained sufficient allegations to justify a judgment as in an action of forcible entry and detainer. There were also sufficient facts pleaded to justify a recovery of the possession as in an action of right, save that no abstract of title was attached to the petition. But, as it was admitted that defendants had taken possession of the property as tenants of plaintiff's grantor, and could not dispute the title, it may be that no abstract of title was necessary. However this may be, defendants answered, admitting plaintiff's ownership of the property, the making of the lease, and admitting the possession of Miller & Son, but denying all other allegations of the petition. Thereafter, and on September 13, 1906, plaintiff filed an amendment to the petition, making the necessary allegations for an action of right, and asking damages for the unlawful detention of the property in the sum of $500 and a judgment for the immediate possession of the premises. A demurrer to the petition as amended was interposed by defendants upon the ground of misjoinder of causes of action and of parties, and upon the further ground that plaintiff's remedy, if he had any, was an action of forcible entry and detainer. This demurrer was overruled, and defendants excepted. Thereafter, and upon order of court, plaintiff filed an amended and substituted petition embracing all the matters theretofore pleaded and increasing the prayer for damages to the sum of $800. Defendants answered, denying the material allegations of substituted petition, and pleading a waiver of the forfeiture and a bar to the suit by reason of the fact that defendants were in peaceable possession of the property for more than 30 days after the alleged forfeiture occurred, and also alleging that plaintiff had never declared a forfeiture of the lease by giving notice or otherwise. Terry also filed a separate answer, denying the allegations of the petition, and alleging that he was in the joint possession and occupancy of the premises with Miller & Son as a licensee thereof.

Upon these issues the case was tried. The trial court held as a matter of law under the facts disclosed that there had been a forfeiture of the lease, and that plaintiff was entitled to the possession of the property from and after January 1, 1906, and submitted nothing to the jury save the amount of plaintiff's damages.

The instructions material to our inquiry read in this wise:

“(1) The damages which you will award to the plaintiff will be by you arrived at by finding from the evidence the reasonable rental value of the premises in controversy from the 1st day of January, 1906, to this date.

(2) The provisions of the lease which has been introduced in evidence and identified as ‘Plaintiff's Exhibit A,’ as to the amount of rent that should be paid for the premises in controversy, should not be considered by you as fixing or determining the amount of damages that you shall award to the plaintiff.

(3) The burden of the proof is upon the plaintiff to establish by the greater weight or value of the evidence, which does not necessarily mean the greater number of witnesses, the reasonable rental value of the premises in controversy from the 1st day of January, 1906, to this date.”

The jury returned a verdict for plaintiff against defendant Miller & Son and the members of said copartnership in the sum of $790, for which, with immediate possession of the property, judgment was rendered. Many propositions are presented as grounds for a reversal, and to such of these as seem important we shall now turn our attention.

Defendants contend that the only remedy which a landlord has for the breach by a tenant of the conditions of his lease is an action of forcible entry and detainer, and, further, that, if he once commences an action of forcible entry and detainer, he may not by amendment change it into an action of right. As a corollary to this, they argue that 30 days' uninterrupted possession by a tenant after a breach of the conditions of a lease is a bar, not only to an action of forcible entry and detainer, but also to an action of right. The action of forcible entry and detainer is a summary one, and may now be brought in a court of record as well as before a justice of the peace (Code, § 4211, and cases cited), and the issue involved is the fact of possession contrary to the terms of the statute rather than the right thereto. Stephens v. McCloy, 36 Iowa, 659;Emsley v. Bennett, 37 Iowa, 15;Delmonica Co. v. Smith, 112 Iowa, 659, 84 N. W. 906;Cagwin v. Railroad, 114 Iowa, 129, 86 N. W. 220;Chambers v. Irish, 132 Iowa, 319, 109 N. W. 787;Willis v. Weeks, 129 Iowa, 525, 105 N. W. 1012. The title to the premises cannot be investigated in such an action save in an incidental way. Herkimer v. Keller, 109 Iowa, 680, 81 N. W. 178. By statute (Code, § 4217) 30 days' peaceable possession with the knowledge of the plaintiff after the cause of action accrues is a bar to the summary proceeding. Heiple v. Reinhart, 100 Iowa, 525, 69 N. W. 871;McCelland v. Wiggins, 109 Iowa, 673, 81 N. W. 156. In such an action title cannot be investigated. Nor can there be a joinder of any other kind of action. Code, §§ 4216, 4218. But it is expressly provided in section 4216 that nothing therein contained shall prevent a party from suing for trespass or from testing the right of property in any other manner. What is called an action to recover real property may be brought in this state for the recovery of real estate which shall be by ordinary proceedings. Section 4182. With it there can be no joinder except of like proceedings. Code, § 4182. The action may be brought by any one having a valid and subsisting interest in real property and a right to the immediate possession, and it may be brought against any one acting as the owner, landlord, or tenant of the property claimed. Code, § 4183. In such actions plaintiff must recover on the strength of his...