Powell v. Camp

• Decision Date: 31 May 1875
• Citation: 60 Mo. 569
• Parties: BENJAMIN C. POWELL, Defendant in Error, v. JOHN B. CAMP, Plaintiff in Error.
• Court: Missouri Supreme Court

60 Mo. 569

BENJAMIN C. POWELL, Defendant in Error,

v.JOHN B. CAMP, Plaintiff in Error.

Supreme Court of Missouri.

May Term, 1875.

Error to Buchanan Circuit Court.

E. C. Zimmerman, for Plaintiff in Error.

B. R. Vinyard, for Defendant in Error.

WAGNER, Judge, delivered the opinion of the court.

This was an action instituted before a justice of the peace against the defendant, for unlawfully detaining a certain lot in the city of St. Joseph, described in plaintiff's complaint.

There was a judgment for the plaintiff in the justice's court, from which the defendant appealed, and on a trial anew in the Circuit Court the same result followed.

The record shows that both parties gave evidence tending to prove the respective issues tendered, and the finding of the jury on the facts is conclusive upon us. The instructions, therefore, need only be examined.

The first instruction given at the instance of the plaintiff, told the jury that if they believed from the evidence that defendant went into the possession of the premises under an agreement with the plaintiff to occupy the premises as his tenant, they should find for the plaintiff, provided they further found that before the commencement of the suit the plaintiff gave the defendant thirty day's written notice of his intention to terminate the tenancy, and also demanded the surrender of the possession, and that defendant refused to give up the same. The second instruction was, that if the jury found for the plaintiff they would assess his damages at whatever sum not exceeding fifteen dollars (the amount alleged in the complaint) they might believe from the evidence he had sustained by the wrongful holding of the premises by the defendant. The third related to the assessment of the monthly rents and profits, and is in pursuance of the statute. The fourth was in regard to the credibility of witnesses; and the fifth instructed the jury as to the form of their verdict, as is provided for in the statute on the subject.

The defendant asked for two instructions. The first was given; and that merely asserted the proposition that it devolved on the plaintiff by a preponderance of evidence to prove his case. The second, which was refused, instructed the jury, that unless they believed from the evidence that plaintiff, prior to the institution of his suit, was in the actual possession of the premises, then they should find for the defendant.

None of the instructions require any notice or special comment, except the first one given for the plaintiff, and the defendant's second one, which was refused.

The statute says, that when any person shall willfully and without force hold over any lands after the termination of the time for which they were let to him, or when any person wrongfully and without force, by disseizin, shall obtain and continue in possession of any lands, and after demand made in writing for the deliverance...