Vegely v. Robinson

• Decision Date: 04 January 1886
• Citation: 20 Mo.App. 199
• Parties: ADELE VEGELY, ADMINISTRATRIX, Respondent, v. JAMES H. ROBINSON, Appellant.
• Court: Kansas Court of Appeals

20 Mo.App. 199

ADELE VEGELY, ADMINISTRATRIX, Respondent, v. JAMES H. ROBINSON, Appellant.

Court of Appeals of Missouri, Kansas City.

January 4, 1886

APPEAL from the Buchanan Circuit Court, HON. JOSEPH P. GRUBB, Judge.

Reversed and remanded with directions.

The case and facts are stated in the opinion of the court.

ALLEN H. VORIES, for the appellant.

I. The petition is for use and occupation, and recovery must be based on the contract of the parties, and the actual occupancy of the premises. Cohen v. Kyler, 27 Mo 122; Hood v. Mathis, 21 Mo. 308; Warner v Hale, 65 Ill. 395.

II. The case made by the evidence consists of occupying premises under a verbal lease, and quitting without giving notice, and it was error in the court to permit any recovery. A party must recover on the case stated in the petition, and not that made by the evidence. Camp v. Helan, 43 Mo. 591. There was also evidence of a verbal waiver of notice to quit; but this testimony was rejected.

III. Possession of the house rented, being given on November 1, 1882, defendant had a reasonable time to remove fixtures after his term expired. Dostal v. McCadden, 35 Iowa 318; McCracken v. Hall, 7 Ind. 30.

IV. The defence pleaded in recoupment was a valid one, and the court erred in rejecting the evidence offered to sustain it. The plaintiff's intestate, impliedly covenanted with defendant, in making the lease, for the quiet enjoyment of the premises. Maule v. Ashmead, 20 Pa.St. 482; Mack v. Patchen, 42 N.Y. 167; Berrington v. Casey, 78 Ill. 317; Barney v. Keath, 4 Wend. (N. Y.) 502. The breach of this covenant was specially averred in the answer and denied in the reply, and the burden of proof was on plaintiff. Wood's Landlord and Tenant, ch. 33, sects. 364-367.

V. The time agreed on for leaving, and the actual removal and delivery of the keys, amounted to a surrender of the premises. Prentiss v. Warner, 10 Mo. 601; Kerr v. Clark, 19 Mo. 132; Livermore v. Eddy, 33 Mo. 547; Mathews v. Tobener, 39 Mo. 115.

VI. The verbal agreement to continue the former lease, for a similar period, and the continuance of defendant in the premises, with the express contract of plaintiff, amounted, in law, to a renewal of the lease for three years, on the same terms as before. And it terminated without any notice to quit. Wood's Landlord and Tenant, sect. 25, et seq.

RAMEY & BROWN, for the respondent.

I. Even under the common law the common counts for use and occupation were supported if there had been a legal tenancy, although the tenant to whom let did not occupy then. Chitty on Pleadings (9 Ed.) 344.

II. Defendant had a right to remove his fixtures during his term, otherwise he is presumed to have abandoned them. McCracken v. Hall, 7 Ind. 30.

III. The statute of this state makes the tenancy in this case a tenancy from month to month, from the time of the expiration of the written lease in 1879. Rev. Stat., sect. 3078; Hammon v. Douglass, 50 Mo. 442; Gunn v. Sinclair, 52 Mo. 327.

IV. The court properly excluded all evidence on defendant's counter-claim. It does not fairly come within the statute. Sect. 3522, Rev. Stat.; Edgerton v. Page, 20 N.Y. 281; Loundsberry v. Snyder, 31 N.Y. 514; Durham v. Presby, 120 Mass. 284.

PHILIPS P. J.

This is an action for rent. The facts, as disclosed by the record, are substantially as follows: In October, 1876, plaintiff's intestate let, by contract in writing, to defendant, a certain store house in the city of St. Joseph, for a term of three years, to begin on the first day of November, 1876, and to end on the first day of November, 1879, at a rental at the rate of $166.66 per month, payable monthly. Defendant entered thereunder and occupied the premises during the specified term. At the end thereof the lessor and lessee had a parol understanding by which the term was renewed on the same conditions. Defendant continued to so hold for the succeeding three years, making the monthly payments according to contract, except for the month of October, 1882. In January, 1882, as claimed by defendant, the plaintiff notified him verbally that he would not continue the lease to defendant after the end of that current year, to-wit, November 1, 1882; that accordingly he, defendant, made arrangements to discontinue the occupancy as requested, and began as early as September, 1882, to get his goods out of the house, so that by the first day of November he had removed all his goods therefrom, except as to some fixtures, which he did not entirely remove until the third day of November, when he sent the key to plaintiff. Plaintiff, however, then declined to take the key, but did, however, proceed about the middle of the month to take possession of the house by making certain improvements or repairs, and on the twentieth executed a lease thereon to a third party.

The petition asked judgment for the months of October, November, and December, 1882. The answer admitted that defendant owed the rent for the month of October, but set up the facts, hereinbefore stated as a defence to the other months claimed, with the further claim of damages for the interference by plaintiff with the full enjoyment of the premises during a certain period of the term by reason of plaintiff occupying the street immediately in front of the premises with building material, etc.

On behalf of plaintiff the court gave the following instructions:

" 1. That from and after the expiration of the written lease in evidence, on the thirty-first day of October, 1879, the defendant occupied the premises in question as the tenant of the plaintiff, from month to month, and could only terminate such tenancy at the expiration of a month, and by giving plaintiff notice in writing of his intention to terminate the same thirty days before such termination, and that by holding over said premises until the third day of November, 1882, without giving notice, defendant becomes liable to pay the rent agreed on therefor up to and including the thirty-first day of December, 1882, unless after the abandonment of the premises by the defendant as aforesaid, plaintiff acquiesced in said abandonment, and took possession of said building, in which last named event plaintiff is entitled to recover up to the time he took such possession of said premises."

The court gave no other declarations of law. The jury returned a verdict for plaintiff in the sum of $277.77.

From this judgment...