Corby v. Brill Book & Stationery Co.

76 Mo. App. 506 | Mo. Ct. App. | 1898

Gill, J.

This is an action by a landlord to recover $112.50 for the monthly rent of a store room in St. Joseph. The pleadings admit that defendant occupied the building on a tenancy from' month to month beginning with April 1, 1897, and that defendant paid the rent for April, May and J une. On the first day of June however defendant gave plaintiff written notice that it would vacate the building on or before July 1, 1897. Defendant did abandon the building before July 1 and the keys were taken to and left at the office of plaintiff’s agent. This suit was brought for the July rent — it being insisted by plaintiff that the notice served June 1 was not sufficient to terminate the tenancy on July 1, as it was not the one month’s notice required by statute. R. S. 1889, sec. 6371.

"kfenan?fnoUce to monthly6 tenancy. This contention must be sustained. It is now the settled law of this state, that where one of the parties to a monthly renting attempts to terminate the tenancy, the written notice must be served on the other party before the beginning of the succeeding or last rental month. Gunn v. Sinclair, 52 Mo. 327; Combs v. Midland Transfer Co., 58 Mo. App. 112.

In the case first cited it is said: “If either party desires to terminate the tenancy, he must give a month’s notice of his intention. If he suffers a new month to commence, he can not terminate the tenancy till the end of the next month; and in order to do so, he must give the required notice at or before the end of the current month.” In the ease at bar the new or last month began with the first day of June, while the last day of May was the end of the preceding current month; the notice therefore should have been given on or before May 31. Hence such notice served June 1 was insufficient.

_ . It does not, however, follow that, because of the technical insufficiency of the notice served on plaintiff she can recover in this suit. Under the circumstances attending and following such notice we think plaintiff should not recover. The •evidence establishes a waiver; it shows that within a day or two after the notice was served (which, as already stated, was June 1) plaintiff’s agent visited defendant’s officers and tried to persuade them to withdraw the notice and to continue their tenancy; made no objection whatever to the sufficiency of the notice (although at the time he knew it) and in effect conceded defendant’s right to vacate the premises. The agent offered a reduction in rent, to repair and make such changes in the building as defendant’s officers should desire. Plaintiff’s agent never even intimated that he considered the notice insufficient until about the last days of June, when the keys were offered him and that after defendant had contracted for and gone into other quarters. In a similar case from Massachusetts, Boynton v. Bodwell, 113 Mass. 531, this pertinent language was used:

“If the plaintiff, knowing that the notice was intended to terminate the tenancy on that day, waived any objection to its formality, or by his words and conduct led the defendant reasonably and properly to ■understand that he waived such informality, he can not now object that the notice was insufficient.” See also Drey v. Doyle, 99 Mo. loc. cit. 470, 471. It was also competent under the pleadings for defendant to prove such waiver. Boynton v. Bodwell, supra.

On the undisputed facts, the judgment is for the .right party, and will be affirmed.

All concur.