Haumueller v. Ackermann

• Decision Date: 28 June 1910
• Citation: 130 S.W. 91,150 Mo. App. 141
• Parties: HAUMUELLER v. ACKERMANN.
• Court: Missouri Court of Appeals

130 S.W. 91

150 Mo. App. 141

HAUMUELLER v. ACKERMANN.

St. Louis Court of Appeals. Missouri.

June 28, 1910.

1. LANDLORD AND TENANT (§ 115)—LEASE— "TENANT FROM MONTH TO MONTH."

Where a tenant occupied a tenement at a certain rental per month, under a verbal agreement, he was a "tenant from month to month," under Rev. St. 1899, § 4110 (Ann. St. 1906, p. 2234), providing that all agreements for the leasing or occupation of tenements in cities, not made in writing and signed by the parties or their agents, shall be deemed tenancies from month to month.

2. LANDLORD AND TENANT (§ 116)—TENANCY FROM MONTH TO MONTH—NOTICE TO QUIT— SERVICE.

Rev. St. 1899, § 4110 (Ann. St. 1906, p. 2234), provides that a tenancy for less than a year may be terminated by the person entitled to possession by giving one month's notice in writing to the person in possession, and that tenancies from month to month may be terminated by either party thereto or his agent giving to the other party or his agent one month's notice in writing of his intention to terminate such tenancy. Held, that the section contemplates that the notice shall be given to the tenant in person, or his agent, unless it be in circumstances where a service may not be had on them, and that in other than exceptional circumstances the notice to quit must be served upon the tenant, unless it be where another is in charge of the premises as his agent; but, where it appears to be impossible to serve the notice on the tenant himself, it is sufficient if notice is left with the husband or wife at the usual place of residence, whether the demised premises or elsewhere, and whether the tenant receives the notice or not; but service on the tenant's wife while he was absent at work, in the absence of a showing that he was out of the city, or that he might not have been served without difficulty, or that the notice was explained to the tenant's wife when served upon her, or that she communicated the fact of its service, or delivered the notice to her husband, was insufficient unless she was his agent, or the person in possession within the meaning of the statute.

3. LANDLORD AND TENANT (§ 116)—NOTICE TO QUIT—SERVICE.

The mere fact that a tenant's wife paid the rent at the instance of her husband does not make her the person in possession of the property, and her husband's agent within the statute for the purpose of receiving a notice to quit.

4. LANDLORD AND TENANT (§ 291)—ACTION FOR POSSESSION—PLEADING AND PROOF.

Where plaintiff sued under Rev. St. 1899, § 3321 (Ann. St. 1906, p. 1880), authorizing an action of unlawful detainer against one willfully and without force holding over tenements after termination of the time for which they were demised to him, and in his petition counted upon the cause of action as though the relation of landlord and tenant existed, and that it had been terminated by the giving of the statutory notice to quit, and, besides an ouster, sought recovery for rents in accordance with the agreement relied upon to create the relation of landlord and tenant, plaintiff must recover on the cause of action alleged, and could not recover on the theory that defendant wrongfully entered and continued in possession of the premises, in which event no notice to quit would be required.

5. NOTICE (§ 10)—PERSONAL SERVICE.

Ordinarily, unless a statute authorizes a substituted or constructive service, the law intends that personal service shall be had.

6. USE AND OCCUPATION (§ 1)—GROUND OF OBLIGATION.

Unless the relation of landlord and tenant exists between the parties, no recovery can be had for rents as for use and occupation.

Appeal from St. Louis Circuit Court; Daniel G. Taylor, Judge.

Action by Theodore H. Haumueller against Edwin Ackermann. There was a directed verdict for defendant, and plaintiff appeals. Affirmed.

Warren D. Isenberg and F. A. C. MacManus, for appellant. Alexander R. Russell, for respondent.

NORTONI, J.

This is an action of unlawful detainer. At the conclusion of the testimony for plaintiff, the court instructed a verdict for defendant, and plaintiff prosecutes the appeal.

It appears defendant was plaintiff's tenant, occupying a residence in the city of St. Louis from month to month, and plaintiff sought to terminate the tenancy by giving the statutory notice to that end. The court instructed the verdict for defendant on the theory that plaintiff had failed to show the tenancy had been terminated by competent service of the notice required.

The first question for decision, therefore, relates to the sufficiency of the service of such notice which, in the particular instance, was had upon defendant's wife at his residence, the same tenement involved in the alleged unlawful detainer. Another or second question is also presented which will be hereafter stated and considered.

As above mentioned, the evidence for plaintiff tended to prove that defendant was his tenant and occupied a certain residence or tenement in the city of St. Louis at a rental of $12.50 per month under a verbal agreement; that plaintiff, desiring to terminate the tenancy, caused a sufficient written notice to that effect to be served upon defendant's wife at their residence more than 30 days before the termination of the next succeeding monthly period for which rent was paid. Our statute (section 4110, Rev. St. 1899 [page 2234, Ann. St. 1906]) provides that all agreements for the leasing or occupation of tenements in cities, not made in writing, and signed by the parties or their agents, shall be held and taken to be tenancies from month to month. On the proof made, there can be no doubt that the tenancy here disclosed was one "from month to month" within the purview of the statute cited. Pacific Express Co. v. Tyler, 72 Mo. App. 151. The same statute provides that such tenancies may be terminated by either party thereto or his agent giving to the other party or his agent one month's notice in writing of his intention to terminate such tenancy. Section 4110, Rev. St. 1899 (page 2234, Ann. St. 1906). By a prior provision of the same section, it is said the notice may be given to the person in possession. When the provision as to the person in possession is considered with reference to the other provisions of the statute, it appears to contemplate the notice should be given to the tenant in person or his agent unless it be in circumstances where service may not be had on them. There are many cases where one may be in possession of premises through an agent, and we...