Mastin v. Metzinger

99 Mo. App. 613 | Mo. Ct. App. | 1903

ELLISON, J.

This is an action for unlawful detainer in which the judgment in the trial court was for the defendant.

It appears that defendant leased of. plaintiff, at $60 per month in advance, a building situated in Kansas City for the space of one year. Defendant alleged in his answer that the lease expired July 1, 1901; and so both parties understood. On that day, or the next, plaintiff’s agent entered the premises intending to collect the rent for July when the defendant informed him that the lease had expired, and on the agent saying he did not know it, or think of it, defendant showed him by producing the instrument. Defendant demanded a reduction in the rent to $50 per month. The agent stated he would see the landlord. In a day or two he returned and told defendant that he could not reduce the rate but would have to increase it. He, however, offered to extend the old lease for two months, which defendant refused. He saw defendant shortly after-wards and informed him that he had leased to another party. Defendant did not pay any rent beyond the expiration of the lease and there was no agreement extending the letting. Defendant, however, testified that because the agent said he would see the landlord about the reduction he asked, he would be allowed to stay until the question was settled. Plaintiff asked a peremptory instruction, which the court refused. The question is, whether defendant held over with plaintiff’s consent and was thereby entitled to notice to quit.

The law is that a tenant for a definite time is not entitled to notice to quit. But if lie holds over by the express or implied consent of the landlord it is evidence of a new contract, and notice to quit, of a nature to suit the character of tenancy, is necessary. In this case there was no evidence whatever that plaintiff consented to defendant’s holding over. There was no evidence of an ipxplied consent; indeed, the implication is to the contrary. It is true that the agent did not bodily eject him from the premises, nor did he, immediately on the expiration of the lease, institute an action against him; but there was at no time the slightest indication that he consented to a continuance of the tenancy. It would be a strange condition of affairs if a landlord, in order to avoid implied consent to a continued tenancy under an expired lease, would be compelled to refuse to listen to a proposition of further lease and set about, immediately to eject the tenant. The authorities cited by defendant do not apply to the facts of this case. But the law as herein stated, is laid down in Grant v. White, 42 Mo. 285. The judgment should have been for plaintiff instead of defendant, and it will therefore be reversed and remanded.

All concur.