109 P. 141 | Mont. | 1910
delivered the opinion of the court.
This ease originated in a justice of the peace court in Silver Bow county. It comes to this court on appeal from an order of the district court of that county refusing to grant the plain
It is alleged in the complaint that the plaintiff, by an oral lease made on or about the tenth day of July, 1908, leased and let to the defendant the said building or storeroom for one month, and from month to month thereafter, at a rental of $40 per month, payable in advance; that on September 11, 1908, ■the terms of the lease were, by written notice served on defendant, changed, and the rent increased to $200 per month, the change to take effect October, 10, 1908; that defendant continued in possession of the premises, and on October 13, 1908, plaintiff demanded the increased rental or the possession of the premises, but defendant failed to vacate the storeroom or pay ■the rent. The defendant by answer admitted being in possession and the service of the two notices mentioned in the complaint, and denied all other allegations thereof. He alleged affirmatively that on the tenth day of July, 1906, he hired the building in controversy from one Sam De Poli, a prior owner, •at a monthly rental of $40, for a period of one year; that De Poli, on January 31, 1907, conveyed the premises to one Golubin, subject to said lease, and Golubin agreed that defendant • should retain the possession of the premises upon the same terms and conditions; that plaintiff accepted rent for the months •of July, August and September, 1908, at the rate of $40 per month, and was tendered the same sum for the month beginning •October 10, but refused to accept the same. These issues were made up in the justice of the peace court. During the course •of the trial in the district court the defendant was allowed, ■over plaintiff’s objection, to amend his answer by interlinea
The allowance of the amendment was a matter within the sound legal discretion of the district court, and we find no abuse of such discretion. It is, however, argued by counsel for the plaintiff that, as the statute requires the pleadings in actions of forcible entry and unlawful detainer to be verified, this amendment was improperly allowed, because not verified. The objection of want of verification was not made, however, until after the order allowing the amendment had been entered. It was then too late. In any view of the matter, we do not think the plaintiff s offered prejudice from the action of the court, for the reason that the amendment of the answer was unnecessary.
The testimony on the part of the plaintiff tended to show that when her agent, H. Giovanetti, collected of the defendant the sum of $40 as rent for said premises in the month of July, he then informed the defendant that the rent for the succeeding months would be at the rate of $50 per month; that the defendant assented thereto; that the latter, however, refused to pay $50 the following month, and she finally accepted $40 as the rent for the month of August; that on September 11 the defendant again refused to pay $50, whereupon he was served with notice that from and after October 10 the rent would be $200 per month; and that on the eleventh day of October the defendant tendered the sum of $40 as rent, which was 'refused.
The defendant testified: “My first dealing for that building was on the tenth day of July, 1906, and was with Sam Depolie. My lease from Mr. Doublin was the building. It was a year to year lease. He said I could have the building as long as I paid him $40 on it; he would give me the lease every year from year to year at $40 per month. My agreement with Mr.
H. Giovanetti, the agent of plaintiff, stated that the defendant never told him that he had a lease from Mr. Guibilon at $40 per month, for one year from the 10th of July, 1908; and that he never stated to the defendant that he could remain in possession as long as he wanted to, at the rate of $40 per month under the same terms as he had with Mr. Guibilon.
Guibilon testified that he did not lease the premises to the defendant on the tenth day of July, 1908, for one year at the monthly rental of $40 per month, and that he never at any time leased the premises to the defendant for the term of one year. He also testified that he knew of no lease from Mr. Doublin, the prior owner, to the defendant, and that he never told him that he had such a lease.
It is contended by counsel for the appellant that the matter of the agreement between defendant and Guibilon, for the purchase of the building, in May, 1908, should not have been brought to the attention of the jury; but we find no timely objection to the questions which called out the testimony. We regard the evidence on that point as immaterial, and think the court was correct in limiting the cross-examination on the subject. However that may be, appellant now maintains that the agreement to purchase terminated any lease the defendant may have had up to that time. He may not make use of the testimony for this purpose and still insist that it has no proper place in the record. We shall refer to the contention hereafter.
It is urged that the evidence is insufficient to justify the-verdict. Appellant’s position is that the testimony discloses a lease from month to month, which could be terminated or changed on fifteen days’ notice; while respondent argues that there is testimony to warrant the jury in finding that defendant had a lease for a year or from year to year.
It may be conceded that, if the defendant held under a lease from month to month, the plaintiff was entitled to recover and the jury should have rendered a verdict in her favor in accordance with instruction No. 1, wherein the court instructed them to that effect. Section 5228, Revised Codes, reads as follows: “A hiring of real property, other than lodgings and dwelling-houses, in places where there is no usage on the subject, is presumed to be for one year from its commencement, unless otherwise expressed in the hiring.” The property in question was not a lodging or dwelling-house. There is no testimony of any usage on the subject. Therefore, when defend
It is also urged that the evidence shows that defendant’s-lease from Guibilon had been abandoned by mutual consent,.
The order of the district court is affirmed.
Affirmed.