McIlvain v. Kavorinos

• Decision Date: 07 April 1947
• Docket Number: No. 20861.,20861.
• Parties: McILVAIN v. KAVORINOS et al.
• Court: Missouri Court of Appeals

202 S.W.2d 103

McILVAIN v. KAVORINOS et al.

No. 20861.

Kansas City Court of Appeals. Missouri.

April 7, 1947.

Appeal from Circuit Court, Division No. 4, Jackson County; Brown Harris, Judge.

Not to be published in State Reports.

Action of unlawful detainer by Lettie B. McIlvain against Antone Kavorinos and others, doing business as Rinor's Cafe. Judgment for plaintiff and defendants appeal.

Judgment reversed and cause remanded.

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

C. W. Prince and Guy W. Runnion, both of Kansas City, for respondent.

BOYER, Commissioner.

Unlawful detainer. The above entitled action was instituted before a justice of the peace in Kaw Township, Jackson County, Missouri. The complaint was filed November 3, 1945 and sought recovery of premises described as 3924 Main Street in the City of Kansas City, Kaw Township, Jackson County, Missouri, and alleged "that on the 1st day of Nov., 1945 the defendant wilfully and unlawfully holds over and detains possession of said premises or wrongfully and without force, by disseizin, obtained possession of premises, and has ever since held and still holds possession thereof wrongfully and unlawfully." The complaint further alleged that on the 14th day of September 1945, plaintiff demanded, in writing, possession of said premises of the defendants and that defendants refused to quit possession thereof.

The defendants, by counsel, filed an answer in the justice court which was a general denial of all allegations of the complaint.

After trial before the justice, judgment was rendered for the plaintiff for restitution of the property together with double the amount of accumulated rent and double the monthly rental until restitution, after which the defendants duly appealed to the circuit court.

Upon trial before the judge in the circuit court, the court found the issues in favor of the plaintiff and against the defendants; that the monthly rent was $85; that the amount due since November 1, 1945 was $765; and rendered judgment against defendants for double that amount and for double the monthly rental until restitution. After an unsuccessful motion for new trial the defendants in due time and manner appealed to this court.

Two of the principal assignments of error for the reversal of the judgment pertain to the sufficiency of the alleged notice to terminate the tenancy of defendants and a failure of proof to show a timely notice; and a failure to show the jurisdictional fact that the premises sought to be recovered were in Kaw Township, the township of the justice of the peace before whom the case was instituted and tried.

The evidence before the trial court consisted merely of the testimony of one witness, Mr. Harry J. Dwyer, who was the agent for the owner of the property in question. He testified that he had represented the plaintiff for 15 or 16 years; that he rented the property to James Kavorinos who was known as Jimmy Rinor; that the property located at 3924 Main Street and occupied by the defendants was a store room and used by defendants as a restaurant; that the defendants had been tenants at said place for 5 or 6 years and he dealt only with Jimmy Rinor; that the property was rented on a month to month basis and the rent was $85 a month; that on the 12th day of September 1945, he wrote the following letter and personally delivered it to Jimmy Rinor the next day:

                "Mr. James Rinor
                3924 Main Street
                Kansas City, Mo
                

Dear Sir:

I have been instructed by the owner of the property you are occupying at 3924 Main Street, to vacate the premises not later than November 1, 1945.

                Yours truly
                Harry J. Dwyer."
                

On cross-examination the witness stated that this was the only notice that had been given. He also identified the original letter which was then shown to him and was offered and introduced as an exhibit in the case. The witness further testified that he had caused to be prepared and filed the suit in the justice court; that the complaint was prepared by the clerk of the court at his direction and request; that the defendants had requested a lease; that he had never promised them they could stay there as long as they wanted to. He admitted that without any discussion with the defendants, or notice to them, he negotiated a lease for a five-year term with defendants' competitor across the street.

Upon re-direct examination of this witness it was shown that the defendants had filed an injunction suit against plaintiff October 30, 1945. The petition in the injunction suit was not offered in evidence, but a portion of it was read to the court. The portion of that petition which was read into the record recites that "plaintiffs state that plaintiff has been informed that said competitor has rented said premises from defendant under an agreement with defendant to take possession November 1 and defendant has orally advised plaintiffs of said renting and ordered plaintiffs to give possession of said property and are threatening to bring suit against plaintiffs for possession of said property in a justice court." The foregoing, with the exhibits, was all the evidence that was offered.

Defendants offered no evidence, but filed a motion for a directed verdict for various alleged causes and, in substance, because under the pleadings and the evidence defendants were not guilty of unlawful detainer and plaintiff was not entitled to recover. The motion was overruled and the court proceeded to enter judgment as heretofore recited.

Appellants contend first that the court erred in rendering judgment for respondent (a) because there was no evidence that the notice was served not less than one month from the next rent day; and (b) because the contents of the notice were insufficient to terminate appellants' tenancy. The first proposition must be sustained. There is no evidence whatever disclosed in the transcript as to what constituted a rent month; that is, when the month began or when it ended, and there is no showing as to what day of the month the rent was due and payable. The burden was upon the plaintiff to prove not only that a notice to vacate was given, but that said notice was timely. To render the notice timely the defendants were entitled to one full month's notice after the next succeeding rent day. The fact that the notice in this case was served on September 13 to vacate the premises on November 1, does not prove that it was timely. If the end of the current month fell on any day between the 1st and the 13th of October, the notice was insufficient to terminate the tenancy on November 1. The tenant would not have been given the notice required by Sec. 2971, R.S.Mo.1939, Mo. R.S.A. "If either party desires to terminate the tenancy, he must give a month's notice of his intention. If he suffers a new month to commence, he cannot terminate the tenancy till the end of the next month, and in order to do so he must give the required notice at or before the end of the current month." Gunn et al. v. Sinclair, 52 Mo. 327, 330. Many subsequent cases are illustrative of the principles involved in this character of suit and support the...