Fisher v. Lape

• Decision Date: 06 January 1944
• Docket Number: No. 6458.,6458.
• Citation: 176 S.W.2d 871
• Parties: FISHER v. LAPE.
• Court: Missouri Court of Appeals

176 S.W.2d 871

FISHER v. LAPE.

No. 6458.

Springfield Court of Appeals. Missouri.

January 6, 1944.

Appeal from Circuit Court, Stoddard County; James V. Billings, Judge.

"Not to be published in State Reports".

Action by Leo A. Fisher against Fritz Lape for unlawful detainer. From an adverse judgment of the circuit court upon appeal from a justice of the peace, defendant appeals.

Affirmed.

R. F. Baynes, of New Madrid and C. A. Powell, of Dexter, for appellant.

Bailey & Bailey, of Sikeston, and R. Kip Briney, of Bloomfield, for respondent.

SMITH, Judge.

This action for unlawful detainer was brought by the filing of a complaint before one Pres Hearn, a Justice of the Peace in Castor Township in Stoddard County, Missouri, on the 18th day of January, 1943. Summons was served, and on the 28th day of January, 1943, the cause was tried to a jury with a finding that the defendant was not guilty in the manner and form as charged in the complaint. The plaintiff appealed to the Circuit Court of Stoddard County, where on the 2d day of February, 1943, the plaintiff filed his verified amended complaint, which, omitting caption, signature and jurat, is as follows:

"Leo A. Fisher, plaintiff, complains of Fritz Lape, defendant and says that during the year 1942 the defendant was the tenant of plaintiff and occupied and cultivated lands in Stoddard County, Missouri, described as follows: All that part of Sections 5, 8 and 17, Township 24 North, Range 12 East, which was rented and occupied by defendant during the year 1942.

"Plaintiff further states that the defendant has been a tenant on said lands of plaintiff for several years without any written contract or agreement being had at any time; that the defendant occupied said lands of plaintiff as tenant during the calendar year of 1941 with his tenancy beginning on January 1, 1941, and ending on December 31, 1941; that no additional agreement of any kind was had for 1942, but defendant continued to hold said lands, and cultivate same, during the year 1942 under the same contract had between plaintiff and defendant for the year 1941; that the tenancy of the defendant on said lands for the year 1942 began on January 1, 1942 and terminated on December 31, 1942.

"Plaintiff further states that he gave defendant a written notice more than sixty (60) days prior to December 31, 1942, terminating the tenancy of defendant on said lands and requiring him to surrender the possession of said lands to the plaintiff on or before the 31st day of December, 1942, and plaintiff was entitled to the possession of said lands on December 31, 1942.

"Plaintiff further states that the defendant failed and refused to deliver the possession of the said lands to the plaintiff on December 31, 1942, and holds over and continues to hold the possession of said lands wrongfully and unlawfully after the termination of the time for which they were demised or let to him. And the plaintiff further states that the monthly rents and profits for said lands are $1,000.00.

"Wherefore, plaintiff prays for and demands judgment against defendant for the possession of said lands and his monthly rents and profits."

The abstract does not show any answer filed, but shows that on February 3, 1943, a trial to the court, without a jury, was had and a judgment was rendered in favor of the plaintiff, and the record shows that the appellant filed his application for an amendment of the judgment and said judgment, as of February 3, 1943, was amended to read as follows:

"Now, thereafter on this day, again come the parties, plaintiff and defendant, by their respective attorneys, and by agreement a jury is waived, and this cause is submitted to the Court for hearing, and said cause is submitted to the Court on the record heretofore made in this cause, and the Court doth find that the defendant is guilty of Unlawful Detainer in the manner and form as charged in the complaint, and that said plaintiff is not entitled to any damages for the detention of said land and premises and the Court finds the amount due and owing to plaintiff by defendant for the monthly rents and profits in the agreed sum of $416.16½ per month or the sum of $5,000.00 per year, and it is ordered by the Court that by agreement, defendant is not to begin payment of the monthly rents and profits before February 15, 1943. It is further found by the Court that the double value of monthly rents and profits are the sum of $833.33 1/3 and the yearly rents and profits the sum of $10,000.00 per year.

"It is therefore, considered, ordered, adjudged and decreed by the court, the plaintiff have and recover of and from defendant the possession of the following described premises in Stoddard County, Missouri, to-wit: All that part of Sections 5, 8 and 17, Township 24 North, Range 12 east, which was rented and occupied by defendant during the year 1942, and it is further considered, ordered, adjudged and decreed by the Court that the plaintiff have judgment against defendant for the double value of the monthly rents and profits at agreed sum of $833.33 1/3 per month, or the sum of $10,000.00 per year, beginning February 15, 1943."

Motion for new trial was filed and overruled. An appeal was granted to this court. The order of the trial court in granting the appeal is shown as follows:

"Now on this day, comes the defendant, by attorney, and by leave of court, files affidavit and application for appeal of this cause, to the Springfield Court of Appeals, and same is submitted to and taken up by the Court, heard and considered. And defendant at this time deposits appeal docket fee of $10.00. It is ordered that application for appeal be and it is sustained, and that defendant be granted an appeal to the Springfield Court of Appeals, Springfield, Missouri.

"The Court finds that defendant has vacated the property in controversy, it is therefore ordered that bond of defendant in appeal herein, be fixed in the sum of $500."

The case is presented to us under five assignments of error, which we quote as follows:

"1. The court erred in refusing to give appellant's declaration of law No. D-B, in the nature of a demurrer to the evidence, at the close of all the evidence in the case.

"2. The court erred in giving declaration of law No. P-1, in the nature of a directed verdict or directed findings for the respondent.

"3. The court erred in finding the issues for the respondent and against the appellant.

"4. The court erred in refusing to give Declarations of Law No. D-2 and D-3, requested by the appellant.

"5. The court erred in admitting over the objection and exception of the appellant testimony offered by the respondent that there was a custom in the community to the effect that all leases of real estate was for the calendar year ending on December 31st of each year."

We start out with the law determined that an oral contract for farm lands creates a tenancy from year to year, and may be terminated by giving written notice, not less than sixty days before the end of the year. Womach v. Jenkins, 128 Mo. App. 408, 107 S.W. 423; Hillis v. Rhodes, 205 Mo.App. 439, 223 S.W. 972; Hauer v....