James v. Hutchinson

• Decision Date: 18 May 1948
• Docket Number: No. 27433.,27433.
• Citation: 211 S.W.2d 507
• Parties: JAMES v. HUTCHINSON.
• Court: Missouri Court of Appeals

211 S.W.2d 507

JAMES v. HUTCHINSON.

No. 27433.

St. Louis Court of Appeals. Missouri.

May 18, 1948.

Appeal from Circuit Court, St. Louis County; John A. Witthaus, Judge.

"Not to be reported in State Reports."

Unlawful detainer suit by Ella James against Wright Hutchinson. From a judgment of a justice of the peace for defendant, the plaintiff appealed to the circuit court. From a judgment of the circuit court for the defendant, plaintiff appeals.

Circuit court's judgment affirmed.

Calhoun & Boisseau, of St. Louis, for appellant.

Fordyce, White, Mayne, Williams & Hartman and Joseph R. Long, all of St. Louis, for respondent.

BENNICK, Commissioner.

This is an unlawful detainer suit wherein plaintiff, Ella James, complained to a justice of the peace within and for St. Ferdinand Township in St. Louis County that defendant, Wright Hutchinson, was willfully and unlawfully holding over certain premises on St. Charles Rock Road in said county after the termination of the time for which the premises had been leased to one Lee Krueger under whom he claimed.

Following a judgment for defendant in the justice's court, plaintiff appealed to the circuit court, wherein the case was tried to the court alone and judgment again rendered in favor of defendant. Plaintiff thereupon filed her motion for a new trial; and this being overruled, she gave notice of appeal, and by subsequent steps has caused the case to be transferred to this court for our review.

The essential facts in the case are undisputed.

The premises in question adjoin what is known as the Westlake Amusement Park on St. Charles Rock Road, and are improved for use as a filling station and restaurant.

The lease from plaintiff to Krueger was executed on May 19, 1941, and was for a term of five years from July 15, 1941, at a rental of $60 a month. The lease also contained the following provision with respect to the extension of the term: "Lessor hereby gives and grants to lessee the exclusive option and privilege of extending this lease for a period of five years at a rental of $70 per month. Lessee may exercise its option by giving written notice thereof to lessor at any time within the term hereof. If lessee shall not exercise such option, this lease shall, nevertheless, continue in full force and effect unless terminated at the end of the term above specified, or until terminated at any time thereafter, by thirty (30) days' notice in writing by either party."

On June 19, 1946, some twenty-five days before the expiration of the initial term of the lease, Krueger sent plaintiff by registered mail the following notice of his election to extend the term: "You are hereby notified of the election of the undersigned lessee in that certain lease agreement with you as lessor, dated July 15, 1941, covering certain property at St. Charles Rock Road at West Lake, St. Louis County, Missouri, to extend the term as provided in said lease for five additional years so that the term as extended will run to July 15, 1951 and will remain in full force and effect thereafter until terminated by thirty (30) days notice in writing by either party."

The letter was admittedly received and receipted for by plaintiff on June 20, 1946, but, according to her testimony, was then mislaid and unopened until July 19, 1946, five days after the initial term of the lease had expired.

Plaintiff's explanation was that after signing the return receipt, she laid all the mail on a bookcase in the front hall while she went next door to answer a telephone call; that the mail had not only included the registered letter and whatever else had come to her, but also the mail for the other members of the household; that when she returned from answering the telephone call she was unable to find the registered letter, although she searched for it and inquired of her mother and sister-in-law about it; that she found it underneath the bookcase on July 19th when she had occasion to move the furniture while cleaning house; and that she then opened it and read it, and on the following day consulted her attorney in regard to the legal aspects of the situation.

On August 29, 1946, plaintiff had Krueger served personally with a written notice to vacate the premises on or before thirty days thereafter. Defendant remained in possession as sublessee under Krueger beyond the period of thirty days, and this action in unlawful detainer was thereupon instituted by plaintiff to recover possession of the premises.

The whole question in the case resolves itself into one of whether the circumstances attending the mailing and delivery of Krueger's registered letter to plaintiff constituted the giving of written notice of Krueger's election to extend the term under the provision for extension contained in the lease. If so, then plaintiff's subsequent notice to vacate at the expiration of thirty days was of no effect, and defendant was not guilty of holding over after the termination of the time for which the premises had been leased to Krueger under whom he claimed. But on the other hand, if Krueger's letter was insufficient to constitute the giving of written notice within the contemplation of the lease, then there was no extension of the term, and plaintiff became entitled to possession at the expiration of thirty days after service upon Krueger of her notice to vacate.

For her first attack upon the sufficiency of the letter, plaintiff argues that the requirement in the lease for giving written notice must be taken to have implied personal service of the same where the manner of service was not otherwise indicated, and that if it had been contemplated between the parties that the election to extend the term could be exercised by notice sent by mail, the lease itself would have conferred such privilege.

We think plaintiff is wrong in this contention. The question here is simply one of complying with the provision of a private contract requiring the giving of written notice. It is not a case of complying with some statute of this state requiring or implying the giving of notice. There is no doubt that where a statutory notice is involved, personal service is required unless the statute expressly directs a different method of service. Sec. 1437, R.S.Mo.1939, Mo.R.S.A. § 1437. However the notice in question was not required by virtue of any statute, but only by virtue of a provision incorporated in the lease, which was silent in regard to the method of service. The only requirement of the lease with which we are now concerned was that plaintiff be given written notice; and the authorities hold that notice by mail is sufficient to satisfy such a provision. Baxter Laundries v. Lucas, 43 Ohio App. 518, 183 N.E. 538; Ketcham v. Oil Field Supply Co., 99 Okl. 201, 226 P. 93; Case v. Fagin, 221 Ill.App. 209; Palmer v. Fair Co., 140 Miss. 294, 105 So. 513; 51 C.J.S., Landlord and Tenant, § 62c(2); 32 Am.Jur., Landlord and Tenant, sec. 979.

Plaintiff argues, however, that even if notice by mail be regarded as a sufficient method of service, Krueger's notice was in any event ineffective, since it was not enough that plaintiff should have received the letter within the time specified, but it was also necessary that she be shown to have opened and read the letter so as to have acquired actual knowledge of its contents.

In the relatively few cases dealing with the specific question of the sufficiency of notice by mail as a means of communicating the lessee's election to extend the term of a lease, the only condition imposed, so far as the question of service is concerned, is that the letter be actually received by the lessor within the time fixed by the lease during which notice may be given. The theory is that where the lease is silent as to the method of service, a lessee who chooses the mail as the means for communicating his election must assume all responsibility for any failure on the part of the agency he has selected, so that if his letter does not reach the lessee within the time for giving notice, he must accept the consequences of such failure. Bluthenthal v. Atkinson, 93 Ark. 252, 124 S.W. 510; McGrory Stores Corp. v. Goldberg, 95 N.J.Eq. 152, 122 A. 113. But if the letter is received by the lessee within the time limited by the lease for the giving of notice of the lessee's election to extend, the courts seem to have had no occasion to doubt that the delivery of the letter marked the giving of notice, without considering whether the letter was read or not.

As a matter of fact, were it a condition to the effectiveness of notice by mail that the sender prove that the one to be notified not only received the letter but also read it, the result would be to impose an impossible burden upon the sender in most cases, and to nullify such method of service for all practical purposes. Furthermore, as defendant points out, a rule would be most illogical, which, while purporting to recognize the validity of notice by mail, would at the same time put it in the power of the recipient of the notice to avoid its...