Roberts v. Cottey

• Decision Date: 25 May 1903
• Citation: 74 S.W. 886,100 Mo.App. 500
• Parties: MARY ROBERTS, Appellant, v. LEWIS F. COTTEY et al., Respondents
• Court: Kansas Court of Appeals

74 S.W. 886

100 Mo.App. 500

MARY ROBERTS, Appellant, v. LEWIS F. COTTEY et al., Respondents

Court of Appeals of Missouri, Kansas City

May 25, 1903

Appeal from Jackson Circuit Court.--Hon. John W. Henry, Judge.

AFFIRMED.

Judgment affirmed.

Kagy & Horn for appellant.

(1) Upon the face of the whole record plaintiff was entitled to the verdict of the jury. The evidence establishes beyond controversy that plaintiff became the tenant of the defendant under a verbal lease in which she agreed to pay a reserved rental of $ 25 per month, dating from August 1, 1899, and that in consideration of such lease and occupancy defendants agreed to repair the premises and put them in a tenantable condition. The evidence discloses that the premises were in a dangerous condition; that defendants failed to repair them as they had agreed to, and in consequence of such failure plaintiff fell through the floor and sustained a severe injury. This evidence was sufficient to take the case to the jury and the court properly sent it to the jury, which found for plaintiff, and the court subsequently committed error in sustaining defendant's motion for new trial and in arrest. The court below certainly did not sustain the motion for want of evidence of liability, for a clear case was made.

Hatch & Middlebrook, with L. F. Cottey for respondents.

(1) The tenancy of plaintiff was from month to month. There was no surrender of the premises. The rent had been paid to August 1, 1899. Plaintiff was bound for the August rent in any event. Nothing but a written notice could have terminated such tenancy, and it is admitted that was not given. The verbal agreement, claimed by plaintiff to have been made August 15, 1899, did not and could not change the character of her tenancy. Furthermore, such agreement, if true, was within a statute of frauds, and was void. It was also void for want of consideration, because she continued in possession and continued to pay the same rent after such agreement as before. R. S. 1899, secs. 3414 and 4110; Smith v. Smith Bros., 62 Mo.App. 596; Buck v Lewis, 46 Mo.App. 227; Iron Works v. Kinealy, 86 Mo.App. 199; Berner v. Gebhart, 87 Mo.App. 409; Withnell v. Petzold, 104 Mo. 409; Combs v Trans. Co., 58 Mo.App. 112. (2) The petition wholly fails to state any cause of action against the defendants, in this: It is not averred in said petition that the defendants expressly covenanted to keep said premises in repair. Such an averment is absolutely necessary. Aside from an express covenant to that effect, a landlord is not bound to keep the leased premises in repair. Vai v. Weld, 17 Mo. 232; Morse v. Maddox, 17 Mo. 569-574; Burnes v Fuchs, 28 Mo.App. 279; Ward v. Fagin, 101 Mo. 669; Gordon v. Peltzer, 56 Mo.App. loc. cit., 602; O'Brien v. Capwell, 59 Barb. 497.

OPINION

SMITH, P. J.

--This is an action to recover damages for personal injuries.

The petition alleged that the defendants were the owners of a certain three story brick building in Kansas City which had wooden porches along the rear end of the second and third stories thereof; that plaintiff was the occupying tenant of said second and third stories; that the said second story porch and the timber therein had become rotten, dilapidated, dangerous, unsafe, and out of repair; that prior to August 1, 1899, defendants gave to plaintiff notice that her tenancy would be terminated on the said August 1, 1899, and that plaintiff had accepted said notice and agreed to vacate on that day; that on August 15, 1899, plaintiff and defendants made a contract whereby plaintiff was to pay defendants $--per month rent and in consideration of said rent and contract, defendants agreed that they would repair said porch immediately thereafter; that defendants failed to perform said contract by refusing to make said repairs, and that on August 28, 1899, the plaintiff while a tenant lawfully using said porch, the floor and joists upon which the same rested gave way, whereby plaintiff was suddenly precipitated through said floor and injured, etc.

There was a trial at which it was disclosed by the evidence adduced by the plaintiff that she had been an occupying tenant of the second and third stories of the building for ten or eleven years; that the floors of the...