Finch v. Moore
52 N.W. 384
Minn.
1892
Check Treatment
Collins, J.

As the holding of plaintiff’s .premises by defendant was from month to month, without any limitation as to the time when the estate was to be determined, either party was entitled to notification, as provided in 1878 G. S. ch. 75, § 40, of the determination of the estate by the other. Sanford v. Johnson, 24 Minn. 172. See, also, Petsch v. Biggs, 31 Minn. 392, (18 N. W. Rep. 101;) Hunter v. Frost, 47 Minn. 1, (49 N. W. Rep. 327;) Brownell v. Welch, 91 Ill. 523; Hollis v. Burns, 100 Pa. St. 206; Hilsendegen v. Scheich, 55 Mich. 468, (21 N. W. Rep. 894.) The trial court found that such notice had not been given by defendant, and that, therefore, plaintiff was entitled to recover the rent for at least two months. This finding of fact could not have been otherwise on the evidence. A mere tender of the keys by á third party was not equivalent to nor could it be allowed to take the place of this notice. Nor did the plaintiff waive her right to a notice, nor accept the premises, by going into the house with the person who had been sent by defendant to remove a few articles left there by him, nor by entering aft-erwards, as cold weather approached, to see that the water was properly turned off.

The defendant had occupied the premises as plaintiff’s tenant from month to month, for several months. There was no controversy over the amount which he had agreed to pay for each month, and, if there was anything due as rent, there was no good reason *118why its payment should not be enforced in this action, although the plaintiff had alleged in her complaint that the premises were leased to defendant for the period of one year, and had failed to prove a valid lease under the statute of frauds. Defendant’s motion to dismiss on this ground was properly denied.

(Opinion published 53 N. W. Rep. 384.)

Judgment affirmed.