Mahoney v. Lester

• Citation: 168 P.2d 339,118 Mont. 551
• Decision Date: 16 April 1946
• Docket Number: 8611.
• Parties: MAHONEY v. LESTER et al.
• Court: United States State Supreme Court of Montana

168 P.2d 339

118 Mont. 551

MAHONEY v. LESTER et al.

No. 8611.

Supreme Court of Montana

April 16, 1946

Rehearing Denied May 14, 1946.

Appeal from District Court, Sixth District, Gallatin County Benjamin E. Berg, Judge.

Action in unlawful detainer by P. H. Mahoney against Charles W Lester and Mabel Lester. From a judgment for plaintiff, the defendants appeal.

Affirmed.

E. F. Bunker, of Bozeman, and Albert Anderson, of Helena, for appellants.

Frank M. Gray, of Bozeman, for respondent.

Howard M. Lewis, of Bozeman, amicus curiae.

ADAIR Justice.

This is an appeal from a judgment. The action is one of unlawful detainer involving the possession of the dwelling house and premises situate at No. 407 West Main Street in the city of Bozeman, Montana. A jury was waived and the cause tried to the court. The court made and filed written findings of fact and conclusions of law and in accordance therewith judgment was given and entered for plaintiff, P. H. Mahoney, and the defendants, Charles W. Lester and Mable Lester, husband and wife, have appealed.

The trial court's findings of fact recite: That on and prior to June 1, 1943, the plaintiff P. H. Mahoney was the equitable owner and entitled to the possession of the above described dwelling and real property and then was in the constructive possession of said property; that one J. A. Stafford was placed in charge of the property as the agent of plaintiff for the purpose of looking after the property and finding a tenant therefor and that he acted as such agent until his death which occurred prior to the trial; that in May, 1943, the defendants commenced negotiations with Stafford for a lease upon and for an option to purchase the property; that in that connection Stafford sent to his principal Mahoney, who was then at Glendale, California, a telegram reading: 'Have party to live in house. They have beauty parlor outfit to operate in front part. Will pay twenty five dollars per month for complete property and sign years lease with option of buying if you will allow one month rent conditioning place. Advise immediately. Prepay.'; that three days later the principal Mahoney sent to his agent Stafford a telegram reading: 'Price OK Years Lease OK Ten months to buy OK Five thousand-five hundred down. Letter following. Make lease from P. Mahoney.'; that thereafter further negotiations were had between the agent Stafford and defendants but no agreement was reached; that during such negotiations Stafford delivered to defendants the keys to the house whereupon defendants moved in, continuing to occupy same from June 1, 1943, to the date of the findings (March 30, 1945); that the plaintiff Mahoney sent a proposed written lease to his agent Stafford for execution by defendants but that defendants refused to sign the same; that thereafter the defendants caused their attorney to draft and forward to plaintiff in California for his signature a proposed lease and option to purchase, which instrument the plaintiff declined to sign; that the proposed lease and option so submitted by defendants provided for a lease of the property for a period of one year, at a rental of $25 per month, with an option to buy the property for the sum of $4,500, the rentals paid prior to the time of exercising the option to be applied as part of the purchase price; that the parties never came to any agreement either as to the duration of the lease or for the purchase of the property by defendants; that with the consent of plaintiff and through his agent, Stafford, defendants were allowed to apply one month's rent for the property in the sum of $25 towards repairing the dwelling; that other than such $25 allowance, defendants have never paid the plaintiff any rent upon the property during their entire occupancy covering the period from June 1, 1943, to March 30, 1945; that payment of such rent had been demanded of defendants on several occasions; that without the knowledge or authority of plaintiff, defendants had paid a fine of $50 imposed against the property by certain labor unions and had spent the sum of $28.15 for repairs which they desired made on the property; that on August 3, 1944, plaintiff's attorney prepared and signed a notice in writing directed to the defendants demanding payment in full of the past due rent from June 1, 1943 in the sum of $350, being at the rate of $25 per month from June 1, 1943, to August 31, 1944, and also giving notice to defendants to either pay the rent demanded or to quit the premises and that, upon their failure to comply, action would be started against them for the full amount of unpaid rent, and for treble the amount as damages; that such notice in writing was duly served upon the defendant Mabel Lester, at said residence herein described, by the undersheriff of Gallatin County by delivering to and leaving with said defendant a true copy of said notice; that defendants refused to pay the said rent or to surrender possession of the property of the plaintiff and that thereupon this action was instituted to recover the possession of the propery; that after allowing $25 for the first month's rent on the property there is due and owing to plaintiff on March 1, 1945, as rental of the property the sum of $500.

From the foregoing findings of fact the trial court concluded as a matter of law:

'I. That in view of Section 7744, Revised Codes of Montana 1935, the tenancy by which the defendants held the property described in the complaint was a tenancy from month to month.

'II. That the action herein is predicated upon Subdivision 2 of Section 9889, Revised Codes of Montana 1935, and that this section authorized the action of unlawful detainer in any case where a tenant continues in possession of real property without permission of the landlord after default in the payment of rent pursuant to the lease agreement under which the property is held, and three days notice in writing requiring its payment or possession of the property shall have been served upon him. The basis of the action is the default in the payment of rent after the same becomes due, and the withholding of possession by the tenant after three day's notice to pay the rent or surrender the possession, and the nature of the lease or tenancy under which the property is held is immaterial.

'III. The defendants are entitled to a credit of $25.00, being the rental for the month of June 1943, in accordance with the findings of the Court herein. Defendants are not entitled to a credit against the rentals due the plaintiff for the $50.00 paid to the labor union, or for the sum of $28.15 expended upon said property without the knowledge or consent of the plaintiff.

'IV. That the plaintiff is entitled to the judgment of this Court for the sum of Fifteen Hundred Dollars ($1500.00), being the amount the Court found due from the defendants to the plaintiff; declaring the tenancy under which the defendants hold possession for the real property herein described.'

The judgment awards plaintiff his costs, $1500 damages, and orders that a writ of restitution issue restoring the property to plaintiff.

The findings of the trial court must be sustained if they are supported by substantial evidence and on appeal the presumption is that such findings and the judgment based thereon are correct. Bickford v. Bickford, Mont., 158 P.2d 796; Whitcomb v. Koechel, Mont., 158 P.2d 496; Wieri v. Anaconda Copper Min. Co., Mont., 156 P.2d 838; Cedar Creek Oil & Gas. Co. v. Archer, 112 Mont. 477, 117 P.2d 265.

Defendants assign error upon the making by the trial court of certain portions of certain of the findings of fact which defendants contend are defective. There is substantial competent evidence to sustain each and all of the trial court's findings. Furthermore, the cause was tried to the court sitting without a jury. The record fails to show any request for findings or any exceptions to those which were made. In such a case the trial court may not be placed in error for failure to make findings not requested nor for defective findings not specifically and particularly excepted to. Sections 9369 and 9370, Revised Codes; Joyce v. McDonald, 51 Mont. 163, 149 P. 953; Leake v. Hooten, 88 Mont. 70, 289 P. 1043; Valier-Montana L. & W. Co v. Ries, 109 Mont. 508, 97 P.2d 584; Sanborn v. Lewis and Clark County, 113 Mont. 1, 120 P.2d 567.

Defendants contend that it was error for the trial court to conclude that their tenancy was from month to month. It is conceded that upon moving into the property the defendants agreed to pay to plaintiff or his agent the sum of $25 per month. The defendants contend that the agreed monthly installments of $25 each were to apply on the purchase price of the property while plaintiff contends and the trial court found that such agreed monthly installments were to be for the monthly rent for the use of the property. The defendant Mabel Lester testified that defendants' proposed lease was to be for a term of three years. However, the proposed form of lease and option which defendants caused their attorney to submit to plaintiff for his approval provided for a lease for one year at a rental of $25 per month with an option to purchase. There never was a meeting of the minds on the proposal and plaintiff never approved thereof nor subscribed his name thereto. 'But a contract is not made so long as, in the contemplation of both parties thereto something remains to be done to establish contract relations.' Central Bitulithic Pav. Co. v. Highland Park, 164 Mich. 223, 129 N.W. 46, 48, Ann.Cas.1912B, 719. Except for the allowance of one month's rent of $25 towards repairing the house, defendants wholly failed to pay any other of the monthly installments although defendants continued to occupy the property as...