150 Mo. App. 141 | Mo. Ct. App. | 1910
This is an action of unlawful detainer. At the conclusion of the testimony for plaintiff, the court instructed a verdict for defendant and plaintiff prosecutes the appeal.
It appears defendant was plaintiff’s tenant, occupying a residence in the city of St. Louis from month to month, and plaintiff sought to terminate the tenacy by giving the statutory notice to that end. The court instructed a verdict for defendant on the theory that plaintiff had failed to show the tenancy had been terminated by competent service of the notice required.
The first question for decision, therefore, relates to the sufficiency of the service of such notice, which, in the particular instance, was had upon defendant’s wife at his residence, the same tenement involved in the alleged unlawful detainer. Another or second question is also presented which will be hereinafter stated and considered.
As above mentioned, the evidence for plaintiff tended to prove that defendant was his tenant and occupied a certain residence or tenement in the city of St. Louis at a rental of $12.50 per month under a verbal agreement; that plaintiff, desiring to terminate the tenancy, caused a sufficient written notice to thát effect to be served upon defendant’s wife at their residence more than thirty days before the termination of the next succeeding monthly period for which rent was paid. Our statute, section 4110, Revised Statutes 1899, section 4110, An. St. 1906, provides that all agréements for the leasing or occupation of tenements in cities, not made in writing and signed by the parties or their agents, shall be held and taken to be tenancies from month to month. On the proof made, there can be no doubt that the tenancy here disclosed was one from
However, in the interests of justice, where it appears to be impossible to serve the notice on the tenant .himself, it is said to be sufficient if notice is left with the husband or wife at the usual place of residence, whether upon the demised premises or elsewhere, and its nature and contents explained at the time. In such circumstances where personal service cannot be affected, a delivery of the notice to the wife, if its contents are explained, at the time, will be sufficient whether the tenant received it or not. [Taylor’s Landlord and Tenant (9 Ed.), sec. 484; Wood’s Landlord and Tenant (2 Ed.), sec. 41; De Giverville v. Stolle, 9 Mo. App. 185.] In this view the court declared in Gerhart Realty Co. v. Weiter, 108 Mo. App. 248, 83 S. W. 278, that where it appeared the tenant himself was absent from the state and personal service could not be effected, a service of the notice on his Avife in charge of the place of business, which was the leased premises involved, was sufficient. As the service of the notice is to the end of forfeiting
To the end of showing defendant’s wife was his agent for the purpose of receiving the notice, plaintiff sought to prove that she had paid the rents for defendant as they fell due. This evidence was excluded by the court, and we believe properly so, for the mere fact that the wife paid the rent at the instance of her husband is not sufficient to indicate she was the person in possession of the property and her husband’s agent for the purpose of receiving a notice which sought to forfeit his estate. In respect of this matter, the statute seems to contemplate service on the person in possession or the tenant’s agent in those cases where the tenant himself may have placed the party in possession as his agent during an absence sufficient to prevent service from being had on the tenant himself. In the sense of the statute, defendant, and not his wife, was-the person in possession of the property for it appears he was the head of the house, and only absent therefrom in the performance of the daily duty of an ordinary citizen. Not a
After the court ruled the service and notice were insufficient, plaintiff introduced evidence tending to prove that since this litigation was instituted defendant had denied he was the tenant of plaintiff. An argument is based on this evidence to the effect that by denying the tenancy, defendant waived his right to any notice whatever. In other words, it is argued that by denying the relation of landlord and tenant existed defendant rendered himself amenable to an action for possession of the premises on mere demand and without notice to quit. There can be no doubt that the argument would be sound had the present action assumed another form in the first instance but this action proceeds under the first clause of our statute defining unlawful detainer, section 3321, Revised Statutes 1899, section 3321, An. St., 1906, which authorizes the proceeding against a person Avho shall willfully and without force hold over tenements after the termination of the time for which they were demised or let to him. The petition counts upon the cause of action as though the relation of landlord and tenant existed between the parties and that it had been terminated by the giving of the thirty days’ statutory notice above referred to and, besides an ouster, a recovery is sought for rents at the rate of $12.50 I>er month in accordance with the agreement relied upon to create the relation of landlord and tenant. Unless the relation of landlord and tenant existed between the parties, no recovery could be had for rents as for use and occupation. [State ex rel. Armour Pkg. Co. v. Dickmann, 146 Mo. App. 396, 124 S. W. 29.] Indeed, plaintiff must recover on the cause of action stated in Ms petition. He may not sue as though defendant is Ms tenant and then recover on the theory that he wrongfully entered and continued, in the possession of the premises in Avhich event no notice to quit would be re
The judgment should be affirmed. It is so ordered.