McIlvain v. Kavorinos, 41775

• Decision Date: 12 February 1951
• Docket Number: No. 41775,41775
• Citation: 236 S.W.2d 322,361 Mo. 749
• Parties: McILVAIN v. KAVORINOS et al.
• Court: Missouri Supreme Court

Page 322

236 S.W.2d 322

361 Mo. 749

McILVAIN v. KAVORINOS et al.

No. 41775.

Supreme Court of Missouri, en Banc Feb. 12, 1951.

Marion D. Waltner, Clarence C. Chilcott, Kansas City, for appellants.

C. W. Prince, Landry Harwood, Kansas City (Meredith & Harwood, Kansas City, of counsel), for respondent.

DALTON, Judge.

Action in unlawful detainer to recover possession of and damages for the detention of premises described as 3924 Main Street, Kansas City, Kaw Township, Jackson County, Missouri. The complaint was filed November 3, 1945, before a Justice of the Peace of Kaw Township, Jackson County, Missouri. Plaintiff alleged that, although she did on the 14th day of September, 1945, demand in writing the possession of said premises, the defendants refused and neglected to quit the possession thereof and wrongfully held and detained possession to plaintiff's damage. Damages for unlawful detention were asked from November 1, 1945, but the rental value of the premises was not stated. Defendants appeared, answered and denied each and every allegation of the complaint. Judgment was for plaintiff and defendants appealed.

The cause was re-tried to the court in the circuit court of Jackson County and the court found the issues for plaintiff. Defendants appealed to the Kansas City Court of Appeals, where the cause was reversed and remanded on the ground (1) that there was no evidence of any character that the property involved was located in Kaw Township and within the jurisdiction of the Justice of the Peace before whom the action was instituted; and (2) that there was no evidence whatever as to what constituted a rent month, or that the notice was served not less than one month before the next rent day. A further contention by defendants with reference to the sufficiency of a written notice, which plaintiff's evidence showed was served on defendants on September 13, 1945, was overruled on the ground that 'the notice given was sufficient to inform defendants of the owner's purpose and intention to terminate the tenancy'. McIlvain v. Kavorinos, Mo.App., 202 S.W.2d 103, 106.

On remand, the cause was tried to a jury in the circuit court of Jackson County and a verdict returned for plaintiff. Defendants again appealed to the Kansas City Court of Appeals where an opinion was written affirming the judgment, McIlvain v. Kavorinos, Mo.App., 212 S.W.2d 85, but the cause was then transferred to this court, where the judgment was ordered reversed and the cause was remanded for a new trial on the ground that the verdict returned by the jury was insufficient to support the judgment as entered. McIlvain v. Kavorinos, 358 Mo. 1153, 219 S.W.2d 349.

On remand, the cause was again tried to the court in the circuit court of Jackson County, and, on August 16, 1949, the court found the issues for 'plaintiff and against defendant,' 'that the complainant (sic) has unlawfully detained the premises * * * from November 1, 1945, to this day' and fixed the average monthly rental value of the premises at $125 per month. Judgment was entered for plaintiff for restitution of the described premises and for $11,000 damages, being double the rental value of the premises as found by the court from November 1, 1945 to July 1, 1949. Defendant James Kavorinos, the only defendant against whom the cause was last tried, has appealed.

On this appeal it is contended that the court erred in entering judgment for plaintiff because the evidence was insufficient to support the court's finding and the judgment entered thereon; that again there was no evidence showing the premises involved were situated in Kaw Township, Jackson County, Missouri; that the jurisdiction of the Justice of the Peace was not established and the court did not so find; that there was no evidence of unlawful detainer 'as the tenancy of appellant had never been lawfully terminated'; and that there was no showing as to when defendant surrendered possession of the premises, or as to when the tenancy was terminated, if at all. In view of the controversy concerning the inferences to be drawn from plaintiff's evidence, a stipulation and counsel's statements, we will review these matters in some detail so that their indefiniteness and uncertainties will be apparent.

Plaintiff's evidence, as shown by the agreed transcript filed on this appeal, tended to show that in 1941 plaintiff's real estate agent, Harry J. Dwyer, rented this property at 3924 Main Street to defendant James Kavorinos on a month to month basis for $50 per month, with rent due the first of each month; that the monthly rental was subsequently increased to $60, $65 and then to $85 per month; that defendants remained in possession, paid the rent and didn't owe any rent in the fall of 1945, but that there was a general increase in all rentals in the district after November 1, 1945. Prior to November 1, 1945, one Stevenson had made an offer to rent the described property with other property and a lease was offered on October 29, 1946. Plaintiff wanted to change tenants but was unable to get possession. At that time she took over from the agent Dwyer the management of the property and the collection of rentals. From November 1945 to the date of the trial the agent Dwyer didn't collect any rents from this property, but he had quit looking after the property in 1946. Defendant remained in possession of the premises 'until he (defendant) turned over possession.' Plaintiff (Mrs. Lettie B. McIlvain) did not testify.

On July 12, 1948, the plaintiff sold the premises at 3924 Main Street, Kansas City, Missouri to Edward Lattner and wife (Lattner's testimony). As a part of the consideration for the payment by Lattner of the purchase price of the property, plaintiff had obligated herself in writing to continue to prosecute the unlawful detainer action against defendant to a final judgment for rent and possession and to account to Lattner for all rents collected for the period from the delivery of the deed to the date possession was delivered. Defendant was in possession of the premises when plaintiff sold to Lattner. On June 15, 1949, Lattner leased the premises to John J. Collins, for a five year term, subject to defendant's rights and possession, and, on July 1, 1949, said Collins began the payment of rent to Lattner on the leased premises. Collins was in possession at the time of the trial on July 21, 1949. Lattner had received no rents 'for the last year,' but he had assigned any such rents from July, 1948 to July, 1949 to Collins. There was evidence that, although the premises were rented to defendant at $85 per month, the reasonable rental value in November, 1945 was $125 per month and Collins was now paying rent at $200 per month.

During the trial the parties stipulated that 'Mr. Lattner's testimony that Mr. Kavorinos is no longer in possession is true and Mr. Kavorinos will so testify when he testifies that he is no longer in possession but he has relinquished possession to Mr. John J. Collins.'

Counsel for plaintiff thereupon made a statement to the court as follows: 'That will dispense of the proof of the notice in the proceedings had in the unlawful detainer case as to establishing McIlvain's possession, right of possession as against evidence. Of course it involved possession by Kavorinos. If we don't have to prove by this witness notice we will shorten the record. With that understanding the judgment will include the right of possession depending upon the right to the rents as against Kavorinos.' Counsel for defendant made no reply. After the close of all the evidence, but before the cause was taken under advisement, counsel for plaintiff stated: 'So there won't be any misunderstanding we have not proved in view of Judge Waltner's statement that Kavorinos has moved out, we have not proved the right of possession against Kavorinos but I said at the beginning we want on the record the plaintiff is entitled to possession of 3924 as against Kavorinos.'

Defendant offered no evidence, but when the court found the issues for plaintiff, the defendant moved to set aside the judgment and enter judgment for defendant. Defendant also moved for a new trial and for judgment. All motions were overruled.

On January 8, 1951, after the cause reached this court on appeal, the death of plaintiff-respondent was suggested and not denied, death had occurred on September 2, 1950. The First National Bank of Kansas City, Missouri, and Arthur Mag, the duly appointed, qualified and acting executors and trustees under the last will and testament of Lettie B. McIlvain, deceased, have moved to be substituted as parties respondent. Appellant has filed his objection on the ground that Secs. 2863 and 2864, R.S. 1939, Secs. 534.260 and 534.270, R.S. 1949, authorize no such substitution. Appellant's theory is that petitioners cannot maintain the unlawful detainer action; that tenancy was not terminated in plaintiff's lifetime; and that the real estate in question has now been sold to others, as herein stated. However, the parties seeking to be substituted have shown to the court that plaintiff-respondent died testate and, after certain personal bequests, her will provided: 'All of the rest, residue and remainder of my property, whether real, personal or mixed, of whatever it may consist and wherever it may be situated, including any of the foregoing bequests which fail to take effect and including any property over which I may at the time of my death have only a power of appointment, I devise and bequeath in trust to Arthur Mag, of Kansas City, Missouri, and The First National Bank of Kansas City, Kansas City, Missouri, and to their successor and successors in trust, for the uses and purposes hereinafter stated.' On the record presented it appears that appellant has surrendered possession of the premises in question to a tenant of the grantee of the deceased; that appellant was out of possession prior to the last trial of the cause; and that all...