Hubbard v. Quisenberry

• Decision Date: 19 November 1888
• Parties: W. T. HUBBARD, Defendant in Error, v. J. T. QUISENBERRY, Plaintiff in Error.
• Court: Kansas Court of Appeals

32 Mo.App. 459

W. T. HUBBARD, Defendant in Error, v. J. T. QUISENBERRY, Plaintiff in Error.

Court of Appeals of Missouri, Kansas City.

November 19, 1888

Error to Cooper Circuit Court. --HON. E. L. EDWARDS, Judge.

AFFIRMED.

The case is stated in the opinion.

Cosgrove & Johnston, for the plaintiff in error.

(1) The cause of action stated in the original complaint filed before the justice, was for " use and occupation." It in no manner showed that the relation of landlord and tenant existed. The statute (Laws of 1883, p. 104) requires in this kind of a suit in justices' courts that the plaintiff must state his cause of action in writing, differing in this regard from most suits instituted before justices of the peace. Defendant in error could not have recovered upon the original complaint, as it stated no cause of action. Edmonson v. Kite, 43 Mo. 176; Bank v. Aull, 80 Mo. 199. The amended complaint was an entire change of the cause of action sued on and tried in the justice's court. It was error to allow defendant in error to amend his complaint, by setting up an entirely new and different cause of action. R. S. sec. 3060; Mitchell v. Railroad, 82 Mo. 103. (2) A tenant in common is only liable to his co-tenant, as bailiff or receiver and this relation can only arise by contract. The parties were tenants in common: this fact is not disputed. The evidence also shows that there was no agreement or contract of renting: the evidence of both plaintiff and defendant in error shows that they were not able to contract. " Their minds did not meet." There is no evidence tending in any degree to show that defendant in error offered to occupy the common property with plaintiff in error, who had a perfect legal right to occupy and cultivate the whole of the common estate. Plaintiff in error did not, by virtue of his occupancy and cultivation become liable to pay rent to his co-tenant. Ragan v McCoy, 29 Mo. 356; Freeman on Co-Ten. and Part. sec 286; Reynolds v. Hilmeth, 45 Iowa 693; Pico v. Columbert, 12 Cal. 414. (3) There was no contract of renting. The defendant in error placed the rental value of the land at eighty dollars and said he would expect that if plaintiff in error occupied it during the year 1885. Plaintiff in error absolutely refused to pay or to agree to pay that price. He said it was only worth fifty dollars per annum. This is the only attempt to contract as shown by the evidence; the law requires something more to constitute a contract. Bishop on Cont. [Enlarged Ed.] secs. 78, 328, and 334; Brown v. Rice, 29 Mo. 322; Eads v. Carondelet, 42 Mo. 117; Wire Co. v. Broderick, 12 Mo.App. 383. (4) The statute contemplates that before the writ of attachment shall issue there must have been a contract of renting. R. S. sec. 3083. The instructions one, two, three and four given to defendant in error should not have been given. (5) It was error to give the second instruction of defendant in error, and to refuse the fifth instruction prayed by plaintiff in error. Gilliam v. Ball, 49 Mo. 249. (6) The sixth instruction asked by plaintiff in error should have been given. Ragan v. McCoy, 29 Mo. 356; Freeman on Co-Ten. and Part. sec. 286; Pico v. Columbet, 12 Cal. 414.

A. L. Ross and Draffen & Williams, for the defendant in error.

(1) The court below properly permitted the plaintiff to file the amended statement. R. S. 1879, sec. 3060; Newberry v. Friede, 23 Mo.App. 631; Allen v. McMonagle, 77 Mo. 478; Robertson v. Railroad, 21 Mo.App. 633; Vaughn v. Railroad, 17 Mo.App. 4. (2) This court, however, cannot review the action of the trial court in permitting the amendment. (a ) No objection was made to its being filed. The motion to strike out the amended statement, and the action of the court thereon, are not preserved in the bill of exceptions. " A motion to strike out a pleading does not become a part of the record, unless it be preserved by bill of exceptions." Banking Co. v. Knaup, 55 Mo. 154; Ober v. Railroad, 13 Mo.App. 81; Estey v. Post, 76 Mo. 411. (b ) The motion for a new trial did not call the attention of the trial court to the error complained of, and hence this court is precluded from considering it. Lewis v. Maxey, 9 Mo.App. 597; Rotchford v. Creamer, 65 Mo. 48. The motion in arrest cannot be made to perform the functions or take the place of a motion for a new trial. White v. Caldwell, 17 Mo.App. 691. ( c ) No exception was saved to the action of the court in overruling the motion for a new trial. St. Joseph v. Ensworth, 65 Mo. 628; State ex rel. v. Hitchcock, 86 Mo. 231. (d ) The defendant voluntarily went to trial upon the amended petition. Scoville v. Glassner, 79 Mo. 449, 454; Hamlin v. Caruthers, 19 Mo.App. 567. (3) The instructions, both of plaintiff and defendant, require the jury to find a contract of renting, and the case was tried on that theory. The law was fairly declared. Grigsby v. Fullerton, 55 Mo. 309; Railroad v. Thompson, 2 West. Rep. 835; Railroad v. Ludwig, 6 Mo.App. 583; Hay v. Walker, 65 Mo. 17. (4) There was evidence to justify the instructions. Defendant expressly recognized his obligation to pay rent; they differed simply as to the amount. In such cases the law implies a promise to pay a reasonable rent. To create the relation of landlord and tenant it is unnecessary that the amount of rent should be agreed upon. In a case somewhat similar to this the supreme court said: " When he continued to hold and enjoy these same privileges after the time had expired for which payment had been made, a promise was thereby implied on the part of the defendant to pay plaintiff for said use and occupation at least what it was reasonably worth." Grigsby v. Fullerton, 57 Mo. 309. Where the circumstances show that the parties intend that compensation shall be made, and they do not agree upon the price, the law will imply a promise to pay the reasonable value thereof. (5) The fact that the defendant owned an interest in the land did not prevent his renting plaintiff's undivided interest therein. The plaintiff would have the same remedy against him as against a stranger. Freeman on Cotenancy and Partition, secs. 164, 268. (6) The plaintiff's second instruction was properly given, and the defendant's fifth properly refused. The question as to whether the plaintiff was in danger of losing his rent by reason of the disposition of the crop, " was not to be determined with reference to any property the tenant may have [had] elsewhere." Haseltine v. Ausherman, 87 Mo. 410. (7) The principle announced in defendant's sixth instruction is the same as that given in his first, second and third. It was not error to refuse to give another instruction on the same point. White v. Groves, 68 Mo. 218; Shaefner v. Leahy, 21 Mo.App. 110. (8) The judgment was for the right party,--substantial justice was meted out to the defendant.

RAMSAY J.

A judgment rendered in this suit in the Morgan county circuit court in favor of W. T. Hubbard, the defendant in error herein, was, on November 21, 1887, by the decision of this court, reversed and remanded. Hubbard v. Quisenberry, 28 Mo.App. 20. The amended petition, upon which the cause was tried, alleged substantially that, on the first day of March, 1885, plaintiff was the owner of an undivided fifteen-sixteenths interest in certain lands situated in Morgan county; that the defendant entered into possession of said land and occupied the same as the tenant of the plaintiff and under an agreement with the plaintiff to pay to him on or before the end of the year a reasonable rental for plaintiff's undivided interest therein, and continued to use the same under said agreement from March 1, 1885; that defendant was entitled to use the same under said tenancy to March 1, 1886, and that the reasonable rental of said land for said time was eighty dollars, etc. Plaintiff asked a judgment for his interest in said land, the sum of seventy-five dollars. It appears from the record that this amended petition was filed in the Morgan county circuit court on April 26, 1886, in lieu of an original statement, to which was appended an affidavit, under the landlord and tenant act, for an attachment, which alleged: " That plaintiff has a just demand against J. T. Quisenberry, the defendant, and that the amount which the affiant believes plaintiff ought to recover, after allowing all just credits and set-offs, is seventy-five dollars, now due, and that he has good reason to believe, and does believe, that defendant is attempting to dispose of, and is disposing of, the crop grown on the demised premises mentioned in the accompanying petition, so as to endanger, hinder or delay the landlord therein mentioned from the collection of his rent, and that he believes that unless an attachment issue he will lose his rent due him from the defendant." The judgment of the circuit court, above mentioned, was reversed because the trial court refused to permit the defendant, after plaintiff filed the amended statement, to file a plea in abatement offered there. After the cause was remanded, on the tenth day of February, 1888, Quisenberry appeared in the circuit court of Morgan county and filed his plea in abatement, denying the allegations in plaintiff's affidavit for attachment, and after a mistrial in the circuit court of Morgan county, the cause was sent on change of venue to the circuit court of Cooper county, where a trial was had, first upon the plea in abatement, afterward upon the merits, each resulting in a verdict and finding for Hubbard, the defendant in error, and the cause is brought to this court upon writ of error.

I. Counsel for Quisenberry contend here that the trial court erred in overruling their motion to strike out the amended statement of the plaintiff Hubbard. The condition of the record precludes a consideration...