Meyer v. White

• Decision Date: 16 November 1910
• Citation: 112 P. 1005,27 Okla. 400,1910 OK 347
• Parties: MEYER et al. v. WHITE.
• Court: Oklahoma Supreme Court

112 P. 1005

27 Okla. 400, 1910 OK 347

MEYER et al. v. WHITE.

Supreme Court of Oklahoma

November 16, 1910

Syllabus by the Court.

Where the district court overrules a demurrer to plaintiff's evidence, and thereafter both parties proceed with the trial and introduce further and additional evidence, and sufficient evidence is introduced to make out a case for the plaintiff a judgment rendered and entered in his favor on a verdict for plaintiff will not be disturbed.

In an action for forcible detainer to recover possession of a tenement, the notice to terminate the tenancy prescribed by Wilson's Rev. & Ann. St. Okl. 1903, § 3328, is waived where the tenant disclaims the relation of landlord and tenant, refuses to pay rent to his landlord, and attorns to another.

Error from Creek County Court; Josiah G. Davis, Judge.

Action by R. S. White against Max Meyer and others. Judgment for plaintiff, and defendants bring error. Affirmed.

Thompson & Smith, for plaintiffs in error.

McDougal Wood & Lattimore, for defendant in error.

TURNER J.

On July 29, 1908, R. S. White, defendant in error, as plaintiff, sued Max Meyer and Joe Abraham before a justice of the peace in Creek county in forcible detainer for the east room of the first floor of a 50x90-foot two-story building on the east 50 feet of lot 1 in block 47 in the city of Sapulpa, Creek county, Okl. He alleged that they had entered lawfully March 17, 1908, as his tenants; that their tenancy expired May 17 1908; that he had served them with notice to quit, which he filed as an exhibit; and prayed restoration of the premises. Defendants pleaded "not guilty." There was judgment for plaintiff, and on trial anew in the county court, where the cause was appealed, there was again judgment for plaintiff, and defendants bring the case here.

To maintain the issues on his part plaintiff introduced in evidence a lease of the premises from the owner thereof to himself, dated November 23, 1906, for a term of two years from January 15, 1907; introduced evidence tending to prove that, while in possession under said lease, he made an assignment of his stock of goods on sale therein; that the same was sold by his assignee on or about March 17, 1908, to defendants, together with the fixtures and balcony in the store; that they immediately took possession and continued the sale of said goods in said room with knowledge of plaintiff's lease, and with the understanding with plaintiff that they might occupy it 60 days; that, failing to pay rent, on May 20, 1908, he served defendants with notice that they were indebted to him in a certain amount for rent of the room from March 17, 1908, to May 17, 1908, with request for payment or that they surrender possession and quit; that on July 20, 1908, he again served them with notice to quit as required under the forcible entry and detainer act--and rested. Whereupon defendants demurred to the evidence, which was overruled, and exceptions saved.

To maintain the issues on their part, defendants proved that they took possession about March 14th,...