Sessinghaus v. Knoche
| Decision Date | 06 April 1909 |
| Citation | 118 S.W. 104,137 Mo.App. 323 |
| Parties | SESSINGHAUS, Appellant, v. KNOCHE, Respondent |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Geo. H. Shields Judge.
REVERSED AND REMANDED (with directions).
Reversed and remanded.
B. R Brewer for appellant.
H. H Oberschelp for respondent.
This is a suit in attachment for rent. The case comes here on plaintiff's appeal. It appears the plaintiff recovered in the circuit court; that is, the jury found a verdict affirming all of the grounds for attachment alleged in the affidavit. Upon hearing the motion for new trial, however, the court set this verdict aside for the reason it was of the opinion there was error in the instructions given at the instance of the plaintiff. From this order setting aside the verdict of the jury, plaintiff prosecutes the appeal.
It appears that by an oral agreement, plaintiff let a hotel building in the city of St. Louis to the defendant at the agreed rental of $ 100 per month, to be paid on the first day of each month. The defendant occupied the same and paid rent for a time, and finally, on the 20th day of December, vacated the premises and removed his property therefrom without having terminated his tenancy by giving thirty days' notice as required by the statute. The installment of rent due on the first day of January thereafter not having been paid, plaintiff instituted this attachment suit on January 5th, for the $ 100 rent due January 1st for that month. It conclusively appears that the rent for January was due and unpaid at the time of the institution of the suit and that the plaintiff, having called at the premises to make demand therefor, was unable to do so for the reason the premises were vacant and unoccupied.
There are several grounds of attachment set forth in the affidavit only two of which are material, however, at the present time. These are the fourth and fifth. The fourth ground for attachment alleges that the defendant was liable to plaintiff for the rent for the month of January for the premises mentioned, whether then due or not, and that defendant had removed his property from said rented premises within thirty days previous to January 5th. The fifth ground alleged is that the said rent was due and unpaid; that said defendant at the time, January 5th, was absent from said premises; that plaintiff's agent had visited the said premises to demand the rent due and found said premises vacant and no one occupying the same. The court instructed the jury on all of the grounds for the attachment alleged in the affidavit. What directions were therein given touching the grounds of attachment other than the fourth and fifth, are immaterial here. The instructions in that respect were entirely proper. The court set the verdict aside, however, for the reason that in its opinion it had trespassed upon the merits of the controversy in the instruction submitting the fourth and fifth grounds of attachment. Touching these grounds, the court instructed that if the jury found from the evidence, fourth, that the defendant was liable to plaintiff for the rent for the month of January, for the premises mentioned in the evidence, whether then due or not, and that defendant had removed his property from said rented premises within thirty days previous to said January 5th, then their verdict should be for the plaintiff. And fifth, that if the jury found from the evidence said rent was due and unpaid; that said defendant, at the time the suit was brought, January 5th, was absent from said premises; that plaintiff's agent had visited said premises to demand said rent then due and found the premises vacant and no one occupying the same, the jury should find for the plaintiff on that ground. In its instruction number two, the court directed that the jury were not to determine, and that its decision should in no wise affect, the question whether or not plaintiff is entitled to recover from defendant the rent for the month of January, but that the matter submitted to the jury was solely whether any one or more of the reasons alleged by plaintiff as grounds for bringing suit by attachment, were true. By plaintiff's instruction number five, the court directed the jury that the evidence showed the tenancy was from month to month, and that the only way defendant could terminate the tenancy and end his liability for rent was to give the plaintiff or her agent written notice of his intention to terminate the tenancy thirty days previous to the time the month expired. The court assigned the following reasons for setting aside the verdict. First, that the first instruction defining the grounds of attachment, submitted to the jury the question of whether the defendant was liable to the plaintiff for rent for the month of January, whether then due or not, and second, whether said rent was due and unpaid, and plaintiff's agent had visited the premises to demand the rent and found them vacant and unoccupied. So much of the instruction referred to was declared to be error for the reason it submitted questions touching the merits of the plaintiff's cause of action and not simply on the grounds of attachment. The court said the instruction in that respect was also inconsistent with instruction number two which directed the jury that its verdict should in no wise affect the question whether or not the plaintiff is entitled to recover from the defendant the rent for the month of January, but that the matter submitted related solely to whether one or more of the grounds alleged by the plaintiff for attachment were valid. The court also declared that it erred in the fifth instruction given on behalf of the plaintiff for the reason that it submitted the question of defendant's liability for rent to the jury and was also inconsistent with instruction number two. In so far as instruction number five is concerned, it certainly declared the law, for the evidence of defendant himself is to the effect that he rented the premises by a verbal agreement for no definite period, and agreed to pay the rent of $ 100 on the first of each month in advance. It appears, too, he quit the possession and vacated the premises December 20th without having given plaintiff notice to that effect and without her knowledge or consent. Our statute (4110 R. S. 1899, sec. 4110, Mo. Ann. St. 1906), declares all agreements for the occupation of houses, tenements or other buildings in cities not made in writing, to be tenancies from month to month, and that either party may terminate such tenancy by giving the other party one month's notice in writing of his intention to terminate the same. It is abundantly settled under this statute that a tenant from month to month, who, without the consent of the landlord, vacates the premises without giving one month's notice to the landlord of his intention to terminate the tenancy, will remain liable for the rent of such premises for the month succeeding. [Buck v. Lewis, 46 Mo.App. 227.] Where it conclusively appears, as in this case, and in fact, is conceded by...
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