Verlinden v. Godberson

• Decision Date: 17 December 1946
• Docket Number: 46944.
• Citation: 25 N.W.2d 347,238 Iowa 161
• Parties: VERLINDEN v. GODBERSON.
• Court: Iowa Supreme Court

25 N.W.2d 347

238 Iowa 161

VERLINDEN v. GODBERSON.

No. 46944.

Supreme Court of Iowa

December 17, 1946

Rehearing Denied Feb. 14, 1947.

C R. Jones, of Sioux City, for appellant.

Chas M. Gasser, of Sioux City for appellee.

MANTZ Justice.

The action is one of forcible entry and detainer wherein Ben Verlinden, the owner and plaintiff, brought suit against Martin S Godberson, a tenant to recover possession of certain property owned by plaintiff in Sioux City, Iowa.

Plaintiff based his action on the claim that the tenant, holding under an oral lease, had committed waste, damaging and injuring the property. The defendant denied that he was a tenant and alleged that he was simply holding the property for his two sons and that they were tenants under a written lease with plaintiff. Defendant did not deny plaintiff's claim that waste had been committed. Plaintiff did not reply to defendant's answer. The trial court held for the plaintiff on the grounds that defendant had injured and damaged the premises and thereby reduced the value thereof, contrary to the terms of the lease, and gave judgment for plaintiff against defendant for the premises and provided that a warrant of removal issue as provided by law. Defendant has appealed.

I. The litigated issue was the claim of appellee that under the terms of an oral month to month lease with appellant, the latter had committed waste; also the pleaded claim of appellant that he was not a tenant of the appellee but was simply a caretaker or custodian of the property and that his two sons were tenants under a written lease with appellant. At the time the case was started and tried neither son was in Iowa--one was at Sandstone, Minnesota, and the other was in the United States Army in Japan. Neither son was a party. No pleadings were filed by or for them and no continuance was asked in their behalf.

II. The appellant complains that as appellee did not answer or deny the allegations of appellant's answer to his plea that the true tenants were sons of appellant, then such failure should be deemed an admission. He relies upon Rule 102 of Civil Procedure which provides: 'Every fact pleaded and not denied in a subsequent pleading, as permitted by these rules, shall be deemed admitted.'

We are unable to agree with appellant on such claim under the record herein. Appellee specifically pleaded that he had leased the premises by oral lease to appellant. The appellant pleaded a written lease on behalf of his two sons. It seems to us that those two pleadings clearly made an issue between the parties--an oral lease, or a written lease. Under the record, we see no merit to the claim.

III. The action brought was to secure possession of the leased premises pursuant to the terms of Chapter 648, Code of 1946. Section 648.1 of such chapter sets forth the grounds for such action. Par. 3 of said section 648.1 sets forth one of such grounds: '3. Where the lessee holds contrary to the terms of his lease.'

In this case appellee claimed that appellant was holding contrary to the terms of his lease in that he had committed waste. This court has held that a tenant is entitled to put the premises to whatever lawful use he may choose, not materially differing from that for which they have been specially designated or constructed, so long as he commits no waste therein. Chamberlain v. Brown, 141 Iowa 540, 120 N.W. 334.

In the case of Scott v. Pinkerton, Iowa, 168 N.W. 117 the question involved was whether the tenant had forfeited his lease by committing waste. Preston, C. J., speaking for the court in that matter used the following language: 'So that, as said, the real controversy in the case is as to the forfeiture of the lease. This is a question of fact. We shall not set out the evidence. An examination of the record satisfies us that the trial court rightly held that the lease had been violated by defendant, and that the plaintiff was entitled to the possession of the property for that reason.'

In the present case, appellant claims that the action of forcible entry and detainer is not the proper remedy. We call attention to the case of Denecke v. Henry F. Miller & Son, 142 Iowa 486, 119 N.W. 380, 19 Ann.Cas. 949. The action was one of forcible entry and detainer where it was claimed that the tenant had forfeited his lease. The court held that the evidence sustained the claim of the landlord that the tenant had violated the terms of the lease and had therefore forfeited his rights thereunder and that the action of forcible entry and detainer was a proper remedy.

In the case of Schultz v. Lidtka, 179 Iowa 652, 161 N.W. 682, 683, it was sought to obtain relief on the grounds that waste had been committed and a forfeiture had ensued. In this case, in denying the relief sought, the court said: 'We have not attempted to set out the evidence in full. It is not our practice to do so in fact cases. But, taking the record all together, we are satisfied that the plaintiff did not make out a case for reformation or forfeiture of the lease on account of waste or damage, and that the trial court properly decided the case.'

While the lease sued upon was oral, yet certain covenants as to the use of the premises will be implied. The rule is stated in 36 C.J., p. 84. 'Where the contract of lease is silent on the subject * * * the law implies an obligation on the part of the tenant to use the property in a proper and tenantlike manner * * * and not to expose the buildings to ruin or waste by acts of omission or commission.' See also C. J. Vol. 35, p. 1221.

It seems to us, under the authorities, the committing of waste on leased premises will work a forfeiture of the lease and that the landlord can bring an action to recover the premises by an action of forcible entry and detainer. Under the record we hold that the action was properly maintainable and that the evidence of waste, justified a finding that the tenant (appellant) was holding contrary to the terms of his lease.

Appellant complains in argument that there were no allegations of waste in appellee's petition. The petition does not in express terms allege waste. It does allege that the defendant (appellant) holds over after the termination of the lease and also that he holds contrary to the terms of the lease. To this petition was attached and made a part thereof a thirty day notice to quit; also, a three day notice to quit. The thirty day notice alleged that appellant had injured and damaged the property, thereby reducing the value thereof, contrary to the terms of the lease. This petition was duly verified. Appellant did not attack the petition or challenge its sufficiency by motion or other pleading; neither did he object to the introduction of the thirty day notice, or the three day notice when offered in evidence. When appellee offered evidence to show waste, no objection was made that such evidence was not within the pleaded issue. Having gone to trial on the petition, and having litigated the issue raised without objection, and not having objected to evidence offered to establish such claim of waste, we do not think that the...