Gerhart Realty Co. v. Weiter

• Decision Date: 15 November 1904
• Citation: 83 S.W. 278,108 Mo. App. 248
• Parties: GERHART REALTY CO. v. WEITER.<SMALL><SUP>*</SUP></SMALL>
• Court: Missouri Court of Appeals

83 S.W. 278

108 Mo. App. 248

GERHART REALTY CO. v. WEITER.^*

St. Louis Court of Appeals. Missouri.

November 15, 1904.

LANDLORD AND TENANT — ESTATE — MONTH TO MONTH — TERMINATION — NOTICE — SERVICE — VENUE — APPLICATION — SUFFICIENCY — TRANSCRIPT OF PAPERS — JUSTICES OF THE PEACE — APPEAL — AFFIDAVIT — SUFFICIENCY.

1. Under Rev. St. 1899, § 4110, providing that all verbal contracts for the leasing of buildings in cities shall be held to be tenancies from month to month, and may be terminated by either party on a month's written notice, a verbal lease for 11 months of city property constitutes a tenancy from month to month, which may be terminated by the landlord on 30 days' notice.

2. Under Rev. St. 1899, § 4110, providing that tenancies from month to month may be terminated by either party on one month's notice in writing of intention, the service of the notice on the tenant's wife, in charge of the premises in the absence of the tenant in another state, is valid.

3. Where an application for change of venue charged prejudice of the inhabitants of the city where the suit was pending, but no evidence was offered to show such prejudice, the change was properly denied.

4. Under Rev. St. 1899, § 818, providing for change of venue on the ground that the judge is prejudiced, it is not permissible, in an application for change of venue, to charge prejudice of the judge of any court other than the one to whom the application is addressed.

5. Where an application for change of venue charged prejudice against the judge to whom the application was made and the other judges of the city where the action was pending to whom a change could have been made, it was, sufficient only to disqualify the judge to whom the application was made.

6. Where an application for change of venue is made and granted, it is not necessary for the clerk to make a transcript of the original papers for use in the court to which the change was granted, but the original papers are properly transmitted for that purpose.

7. The insufficiency of an affidavit for appeal from a justice's court to the circuit court cannot be raised for the first time in the Supreme Court.

Appeal from St. Louis Circuit Court; Daniel D. Fisher, Judge.

Action by the Gerhart Realty Company against Joseph H. Weiter. From a judgment for plaintiff, defendant appeals. Affirmed.

James J. O'Donohoe, for appellant. Rassieur & Rassieur, for respondent.

Statement.

BLAND, P. J.

On May 20, 1902, plaintiff, a corporation, by written lease let to defendant a piece of ground 60 feet square in city block No. 3875, in the city of St. Louis, at a rental of $100 per month. It was agreed in the written lease that the tenancy might be terminated at any time by giving 30 days' written notice. Defendant went into possession of the premises under this lease, and erected thereon some kind of a board structure in which he kept a dramshop. On March 29, 1903, plaintiff served on defendant a notice to quit, to which was appended the following:

"N. B. — In the event that you should desire to remain as a tenant, from month to month only, on and after the date of the expiration of the aforesaid notice you may do so on condition that you pay to the aforesaid company, two hundred dollars per month rent, payable in advance; the first payment to be made April 24, 1903, said tenancy to be in every way subject to the terms and conditions set out in contract with us, applying to said property dated May 20th, 1902.

                  "Served March 23, 1903
                          "Charles B. Gerhart, Witness."
                

Plaintiff's evidence shows that on the 22d or 23d of the month following the service of the notice defendant called at its office, and it was then and there agreed between plaintiff and defendant that the tenancy should be continued from month to month at a rental of $200 per month, payable in advance on the 24th day of each month, and the evidence of both parties is that defendant on that occasion paid $200 as rent. Plaintiff's evidence further shows that defendant called again on or about the 24th day of May, and stated that he could not afford to pay $200 per month rent, and that he would have to vacate the premises. The rent was not reduced. On June 1st he paid $200, the rent due for the preceding month. About June 22d or 23d defendant called again at plaintiff's office, and again asked for a reduction of the rent. Plaintiff then agreed to abate $100 a month until such time as defendant could afford to pay the $200. The defendant agreed to this arrangement, and paid $100 for the June rent, but was given a receipt for $200. This arrangement was continued until October 20, 1903, when the plaintiff served notice on defendant to quit. This notice was served on the defendant's wife, who was on the...