Womach v. Jenkins

• Decision Date: 27 January 1908
• Citation: 107 S.W. 423,128 Mo.App. 408
• Parties: GEO. W. WOMACH, Appellant, v. HENRY JENKINS, Respondent
• Court: Kansas Court of Appeals

107 S.W. 423

128 Mo.App. 408

GEO. W. WOMACH, Appellant, v. HENRY JENKINS, Respondent

Court of Appeals of Missouri, Kansas City

January 27, 1908

Appeal from Buchanan Circuit Court.--Hon. Chesley A. Mosman, Judge.

AFFIRMED.

Judgment affirmed.

Mytton Parkinson & Crow for appellant.

(1) The trial court erred in admitting over the objection and exception of appellant, evidence tending to prove contract alleged to have been entered into in November, 1904, for the rent of appellant's farm to respondent for the fiscal year, 1905-1906, beginning March first. Briar v Robertson, 19 Mo.App. 66; Beiler v. DeVoll, 40 Mo.App. 251; Butts v. Fox, 96 Mo.App. 437; Shark v. Rhiel, 55 Mo. 97. (2) The court erred in refusing to give the declarations of law requested of appellant numbered 1, 3, 4, 5, 6 and 7. Cases cited supra. (3) Upon the undisputed facts, respondent was tenant at will or sufferance of appellant. School District v. Aloys Batsche (Mich.), 29 L. R. A. 576, cases there cited; People v. Annis, 45 Barb. 304; Chartered v O'Donovan, 80 Ind. 20; Church v. Freislie, 37 Minn. 447; Kerrains v. People, 60 N.Y. 221. (4) It is not necessary that tenant expressly agree to pay rent to create the relation of landlord and tenant. Wilkinson v. Wilkinson, 62 Mo.App. 249; R. S. 1899, sec. 4110, 4130.

OPINION

JOHNSON, J.

--Action brought in a justice's court under the provisions of section 4131 et seq., Revised Statutes 1899, by a landlord against his tenant to recover possession of the premises rented on account of nonpayment of rent. When the case reached the circuit court the parties waived a jury and, after hearing the evidence, the court entered judgment for defendant and plaintiff appealed. Plaintiff alleged in his statement that in February, 1905, he rented to defendant "a dwelling house situated on sixty-five acres of land in section three (3) now owned by affiant," in Bloomington township, Buchanan county, "for the term of four months, at the rate of five dollars per month" and that defendant was delinquent in the payment of rent in the sum of ten dollars.

It is conceded by the parties that on or about November 1, 1904, they made an oral agreement under the terms of which defendant moved to a farm of sixty-five acres owned by plaintiff in Bloomington township, Buchanan county, and occupied three rooms of the dwelling house situated thereon and that defendant continued to occupy the place until the bringing of this suit. The real controversy relates to the nature of the occupancy. Plaintiff testified, in effect, that it was under a contract of employment, under the terms of which he engaged the labor of defendant for which he was to pay wages of one dollar per day and house defendant, and that in the following February, he discharged defendant and entered into another agreement with him which provided that defendant should occupy the house until the first of July and pay as rental the sum of five dollars per month. From the evidence introduced by defendant, it appears that when the first agreement was made, plaintiff was operating a butcher shop in a nearby town and was living in the farmhouse; that he wanted defendant to work for him in the butcher shop but defendant refused except on condition that plaintiff would rent him the farm. The agreement and subsequent actions thereunder thus are related by defendant:

"He said that he would furnish me with a house and firewood and rent me the place; and he was to pasture my mare and colt and sow and pigs and furnish me a team and farming tools for to farm with and I was to farm the place and give him half of the crop; he was to get half of the hay, I was to work for him and help him butcher and then I was to move in and take possession right then and have possession until the end of the following year; and I moved in in a few days then I put my mare and colt in pasture and took possession of the place and bought his chickens there on the place and I asked him about a cellar--if he had a cellar--if he had any at all--he said he had not. 'But you can have material to build a cellar if you want to dig it and build it at your own expenses.' I went to work and dug a cellar and built it."

Defendant further testified that it was a part of the agreement that plaintiff should occupy one of the four rooms of the house and that defendant should furnish him board at the rate of fifteen cents per meal. In the following February, plaintiff sold his butcher shop and requested defendant to surrender possession of the farm. Defendant testified "he (plaintiff) said 'I have sold out my butcher shop and ain't got nothing to do at all; I have got to have my place back.' He said 'I ain't got anything to do at all only just sit around and pay board, and I can't do that.' 'Mr. Womach,' I says, 'we have got an understanding--already got a contract. He just went ahead and told me 'I have got to have five dollars a month for the house,' and he said 'I have got to have possession the first of July and you go to work and put in a crop just as I told you you could, just as we agreed to do.' Defendant refused to consent to any change in the contract. On the 8th day of March, plaintiff served a written notice on defendant to vacate the rooms of the house within thirty days and no attention being paid to the notice, brought this suit on the 22d day of April, 1905. Other witnesses introduced by defendant corroborated his testimony relative to the terms of the agreement made in November and it is evident the learned trial judge in rendering judgment for defendant resolved the contested issues of fact in his favor.

The decisive question of law for our determination is whether the facts most favorable to defendant disclose that the relation of landlord and tenant was created between the parties with respect to the farm by the oral agreement made in November, 1904, and in considering this question and those incidental to it, we shall accept as proved the facts adduced by defendant.

While it was a part of the agreement that defendant should work for plaintiff in the butcher shop of the latter and receive wages for such service, we do not think the part of the contract which related to the renting of the premises in any sense was incidental to that employment. Where the occupation of the master's house by the servant is directly connected with the service or if it is required expressly or impliedly by the employer for the necessary or better performance of the service, the relation of the parties with respect to the property is not that of...