Utt v. Winfrey

• Decision Date: 05 December 1921
• Docket Number: No. 14134.,14134.
• Parties: UTT v. WINFREY.
• Court: Missouri Court of Appeals

235 S.W. 185

UTT v. WINFREY.

No. 14134.

Kansas City Court of Appeals. Missouri.

December 5, 1921.

Appeal from Circuit Court, Carroll County; Ralph Hughes, Judge.

"Not to be officially published."

Action by M. F. Utt against Robert Winfrey. Judgment for plaintiff in circuit court, on appeal from justice court, and defendant appeals. Affirmed.

James F. Graham and Franken & Timmons, all of Carrollton, for appellant.

Atwood & Atwood, of Carrollton, for respondent.

TRIMBLE, P. J.

This is an appeal from a judgment in plaintiff's favor in an action for unlawful detainer.

Upon the trial, plaintiff showed that defendant during the year 1920 was in possession of the land in controversy as tenant of the plaintiff under a written lease which specified that the term was to end on March 1, 1921, and that defendant held over and refused to give possession at the termination of the lease. Defendant did not controvert the fact of the tenancy, nor that under the aforesaid written lease the term was to end on March 1, 1921. Nor was any objection made to plaintiff's right to prove an unlawful detainer of that kind. His defense was in the nature of a confession and avoidance. He produced at the trial a written lease, purporting to be signed by plaintiff, which was like the first lease, except that the terms as to rent and certain other particulars were more favorable to defendant, and this new lease was to end on March 1, 1922. Of course, if plaintiff had given such a lease, there was no unlawful holding over. Plaintiff, however, denied having executed this lease; and upon the issues thus raised the jury found for plaintiff.

Defendant asked instructions telling the jury that a written demand was necessary before plaintiff could recover, but these were refused, and their refusal is complained of as error. Of course, upon such a case as disclosed above no demand in writing was necessary. Witte v. Quinn, 38 Mo. App. 681, 688.

However, the contention, now raised for the first time is that the complaint does not state an unlawful detainer under the first clause of section 2995, R. S. 1919, but is based wholly on the second clause thereof. Under such clause a demand in writing is necessary. The complaint is somewhat inartistically drawn; and, while it contains some words that are applicable to the second clause of the section, yet taking the complaint as a whole, it is sufficient to support a case under the first clause. It specifically charges defendant with continuing "in the possession of said premises after the termination of the time for which they were let to him." The complaint contains the substance of every element required by section 2998, R. S. 1919. Since it does this,...