Champ Spring Co. v. B. Roth Tool Co.

96 Mo. App. 518 | Mo. Ct. App. | 1902

GOODE, J.

1. It appears from the foregoing-statement there was • a direct adjudication, in the former case, of the B. Roth Tool Company against the Champ Spring Company for an injunction; that according to the provisions of the lease and the notice given by the Champ Spring Company on the thirtieth day of March, 1901, the Roth Tool Company’s term did not end until the thirtieth day of September, 1901, but did end on that day. This judgment was submitted to by the respondent and affirmed by this court, and settles the issue as to when the lease terminated.

2. Another point made by the respondent is that the complaint in the present case stated two causes of action in the same count, to-wit: an unlawful detention of the premises after September fifteenth, and also for their unlawful detention after October first, and this was true; but as no objection was made to the complaint on that score before going to trial, the point was waived. This was expressly adjudicated in a similar case [Snyder v. Parker, 75 Mo. App. (K. C.) 529] and is in harmony with the general rule as to objecting to two causes of action in one count. Wilson v. Railway, 67 Mo. App. 443; Murphy v. St. Louis Transit Co., 96 Mo. App. (St. L.) 272. The statement could have been amended in the circuit court, had appellant questioned it. R. S. 1899, sec. 4079.

3. Respondent likewise objects to the complaint because it fails to state the premises were unlawfully ■detained on the date the suit was brought, but only states they were unlawfully detained on preceding dates. In order to make a case of unlawful detáiner, the plaintiff must show the premises were wrongly detained at the institution of the action [Loan v. Smith, 76 Mo. App. (K. C.) 510] and it is the better pleading to aver that fact;.but a complaint substantially like the one before 'us has been held good [School Dist. v. Holmes, 53 Mo. App. (St. L.) 487] "and is unquestionably good unless a point is made against its sufficiency at the trial. The only objection urged by the respondent to this complaint in the court below was that an amendment had been permitted in the circuit court by interlineation, increasing the amount of damages- claimed, and objections to other formal deficiencies were thereby foregone. The evidence conclusively showed the possession of the respondent at the time the suit was brought, and at the time of the trial; also that its possession was unlawful, as we think, and the omission to plead the detention on the date the complaint was filed, even if it was a serious defect, was cured by the judgment.

4. We think the amendment increasing the amount of damages claimed was properly permitted in the circuit court as it in no way altered the issues to be tried. E. S. 1899, sée. 3391.

In view of the fact that it had been previously adjudged in an action between these identical parties that the respondent’s term ended September 30, 1901, its retention of the premises thereafter was wrongful and entitled the appellants to maintain an action of unlawful detainer. The entire evidence conclusively shows its right to recover possession, and the instruction that it could not recover was erroneous.

The judgment is reversed and the cause remanded.

Bland, P. J., and Barclay, J., concur.