Shull v. Hatfield
| Decision Date | 02 June 1947 |
| Parties | Susie Shull, Respondent v. William Hatfield, Appellant |
| Court | Kansas Court of Appeals |
Delivered
Appeal from Circuit Court of Pettis County; Hon. Dimmitt Hoffman Judge. Affirmed.
Affirmed.
Crawford & Harlan, Earl T. Crawford and Samuel P. Harlan for appellant.
(1) The relation of landlord and tenant arises by contract, express or implied. Whiteside v. Oasis Club, 162 Mo.App 502, 142 S.W. 752; Marden v. Radford, 229 Mo.App 789, 84 S.W. (2) 947. (2) The statutory provisions for the relinquishment of possession of the premises, are a part of every such contract, in the absence of a contrary agreement. Adams v. Bonnefon, 124 Mo.App. 457, 101 S.W. 693. (3) Impossibility of relinquishment constitutes an excuse for failure to relinquish possession, and subsequent impracticability due to some extreme or unreasonable difficulty, rather than actual impossibility, is the test to be applied. For what is impracticable is, in legal intendment, impossible. 6 Williston on Contracts (Rev. Ed. 1936) Sec. 1931; Restatement of the Law of Contract, Sections 454, 457; Transbay Construction Co. v. City & County of San Francisco (D. C.-Calif.) 35 F.Supp. 433; Mineral Park Land Co. v. Howard, 172 Cal. 289, 156 P. 458; 32 Illinois Law Review (1938) 672. (4) Appellant, being without fault, and relinquishment of possession being impracticable due to conditions over which he had no control, is excused from surrendering immediate possession, and his holding over is not unlawful. Harter v. Mullen, 159 N.Y. 28, 53 N.E. 700, 44 L. R. A. 703; Transbay Construction Co. v. City & County of San Francisco (D. C.-Calif.) 35 F.Supp. 433; In re Metz' Estate, 18 N.Y.S. 883; Clarksville Lead Co. v. Harriman, 68 N.H. 374, 44 A. 527; Hayes v. Continental Gas. Co., 98 Mo.App. 410, 72 S.W. 135; Grice v. Tood, Va. 481, 91 S.E. 609. (5) Respondent will not suffer any financial loss by appellant's failure to relinquish immediate possession. Appellant will pay the maximum legal rent chargeable, and respondent cannot legally charge more. The only basis for her claim for possession is to put another in possession. Respondent is but temporarily barred from determining who may be her tenant, due to conditions partaking of the nature of an act of God -- an acute housing shortage. Emergency Price Control Act, 50 U.S.C. A. 901, 902.
Lamm and Barnett, D. S. Lamm and Roy J. Schick for respondent.
(1) All the elements of an unlawful detainer, as defined by Sec. 2833 R. S. Mo. 1939, exist in this case. Plaintiff showed ownership, that as owner she was in possession and rented it from month to month at $ 7.00 per month to defendant, that she got an O. P. A. eviction certificate which was served on defendant, gave the 30 days notice to vacate (Secs. 2971 and 2867) which was served on defendant and defendant refused to vacate. Drzewiecki v. Stock-Daniel Hardware Co., (Mo. App.) 293 S.W. 441 l. c. 444, par. 3; Barber v. Todd, (Mo. App.) 128 S.W. 2d 290 l. c. 293 par. 10, 11. (2) Right of possession is the only issue in an unlawful detainer action. Peoples Fin. Corp. v. Lincoln, (Mo.) 131 S.W. 2d 520 l. c. 521 par. 3; Drzewiecki v. Stock-Daniel Hardware Co., 293 S.W. 441, syl. 5, l. c. 444 col. 2. (3) Matters such as mistake, estoppel, waiver and equitable defenses cannot be interposed as a defense in an unlawful detainer action. Orr v. McCurdy, 34 Mo.App. 418; Graham v. Conway, 91 Mo.App. 391; Noonan v. Mason, 285 S.W. 118.
The action is unlawful detainer for the possession of a certain residence located at 408 East Harvey Street in Sedalia, Missouri. The petition was filed in the justice of the peace court of Pettis County and removed to the circuit court by certiorari. A jury was waived, the cause tried by the court, resulting in a judgment for plaintiff for possession of the property and monthly rental until restitution be made. Defendant has appealed.
The only assignment of error is that the court erred in refusing to admit evidence to the effect that the defendant made an honest effort to find a place to which to move, and had been unable to do so; that an emergency existed with reference to housing accommodations in Sedalia and vicinity, and that as a result thereof it was impossible for defendant to vacate the premises; therefore, the holding over was not voluntary. Stated another way, defendant's contention is that, due to the housing shortage in Sedalia, it was impossible for him to find another place to live, and that this would constitute a legal excuse for his refusal to surrender possession.
Because of the one point at issue, it is unnecessary for us to give more than a bare outline of the evidence. It is undisputed that the plaintiff was the owner of the property involved, and that the defendant had been a month-to-month tenant for about 5 years prior to suit. Plaintiff desired possession of the residence for her son, a returned veteran, and his family; she gave the proper statutory notice and secured from the OPA office an eviction certificate before filing suit. Defendant sought to justify his refusal to give possession by offering evidence that he could not find another home because of a housing shortage in Sedalia and vicinity. The court excluded such evidence.
Defendant relies on the general principle of law that impossibility of performance of a contract constitutes a legal excuse for non-performance and, in this case, will relieve him from the obligation of surrendering possession. In support of that contention he cites 6 Williston (Rev. Ed. 1936), Sec. 1931 et seq.; Restatement of the Law of Contracts, Chap. 14; Transbay Construction Co. v. City of San Francisco...
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