Hepp Wall Paper & Mercantile Co. v. Deahl

• Citation: 125 P. 491,53 Colo. 274
• Court: Colorado Supreme Court
• Decision Date: 01 July 1912
• Parties: HEPP WALL PAPER & MERCANTILE CO. v. DEAHL.

125 P. 491

53 Colo. 274

HEPP WALL PAPER & MERCANTILE CO. v. DEAHL.

Supreme Court of Colorado

July 1, 1912

Error to County Court, City and County of Denver; H. S. Class Judge.

Action by Rose C. Deahl against the Hepp Wall Paper & Mercantile Company. There was a judgment for plaintiff, and defendant brings error. Affirmed.

Clay B Whitford and Henry E. May, both of Denver, for plaintiff in error.

Elliott & Bardwell, of Denver, for defendant in error.

WHITE J.

Defendant in error on September 18, 1909, executed a written instrument, whereby she leased to plaintiff in error certain premises in the city and county of Denver until the 1st day of October, 1911. The lease was in the ordinary form. By the terms thereof the rent was made payable in advance on the first day of each month, and the premises were not to be underlet or the lease assigned without the written assent of the lessor first had and obtained thereto. The lessee, however, on August 1, 1910, underlet one of the storerooms covered by the lease, and the subtenant went into possession thereof. August 4, 1910, the lessee paid, and the lessor accepted the rent of the premises for such month. August 9, 1910, the lessor declared a forfeiture of the lease, because the lessee had underlet the premises without her consent, contrary to the terms of the lease, and served defendant with notice to surrender up possession of the premises to plaintiff within three days after the date of the notice. The lessee refusing to surrender possession, a suit for unlawful detainer was instituted on August 15, 1910, by the lessor against the lessee, resulting in judgment in favor of the former, to which the latter prosecutes this writ of error.

Plaintiff in error contends: (1) That the notice served by the lessor upon the lessee is insufficient under the unlawful detainer act; (2) that the lessor, having accepted and retained the rent for the month of August, thereby waived the forfeiture (3) that the court erred in refusing to permit plaintiff in error to prove that it had been authorized by the agent of the lessor to sublet the premises.

1. The alleged defect in the notice is based upon the 'claim that the ground of demandant's right for possession of such premises' is not specified therein, and that it was not 'a three days' notice,' as required by the statute. Sections 2603 and 2605, R. S. 1908. The record discloses a notice attached to the complaint which was served upon the defendant, demanding the possession of the premises within three days from its date, but does not state 'the ground of demandant's right for possession.' The complaint, however, alleges 'that plaintiff has notified the defendant that by reason of the said underletting the defendant had forfeited the terms of the lease and that the said lease was terminated,' and the evidence discloses that at the time of the service of the notice hereinbefore mentioned another notice was likewise served upon defendant, and the answer 'admits that on the 1st day of August, 1910, the defendant sublet the storeroom' included in the lease, and 'that the plaintiff notified the defendant that because it underlet the store (room) * * * its lease was forfeited and terminated.' Under these circumstances, we will presume that the notice met the statutory requirements, and was not subject to the objection under consideration.

It was not essential that the entire notice be written upon one piece of paper; nor does the fact that the one served was in two parts render the notice in valid. The two papers were served at the same time, relating to the same subject, and must necessarily be construed as one instrument.

As the portion of the notice attached to the complaint bears date August 8th, and was not served until the 9th, and demands possession within three days from its date, it is claimed that defendant had but two days in which to surrender possession of the premises. In answer, the plaintiff, in resisting an application for supersedeas, contended that, as the suit was not brought until the 15th day of August, the defendant actually had at least six days after the service of the notice in which to surrender possession of the premises. Whether the date designated in the notice, or the date of service thereof is the true date of the notice, need not...