158 Iowa 426 | Iowa | 1913
Defendant is a resident of Adams county, and on or about December 13, 1905, he rented of plaintiff;.a certain tract of land in Adams county for the term of one year. The lease was in writing, and by the terms thereof defendant agreed to pay for the use of the land the sum of $425 as follows: “Notes as follows: $212.50, December 1, 1906; $212.50, February 1, 1907, with 8 per cent, interest from maturity.” Notes were executed contemporaneously with the lease, and each of these contained a provision that payment should be made at the “Union County Savings Bank, Kent, Iowa”; Kent being in Union county. Defendant promptly paid these notes as agered, and, according to the
Section 3501 of the Code provides that all personal actions, save as otherwise provided, must he brought in the county in which some of the defendants actually' reside, and section 3496 provides, in substance, that when, by its terms, a written contract is to be performed at a particular place, action for the breach thereof may, except as other
Plaintiff contends that this action is brought upon a written contract in which the place of performance is expressly stated to be in Union county, and that in any event defendant waived the error in the ruling, if any there be, by expressly pleading in a substituted answer on the day of trial: “That the defendant admits that he used and occupied the lands of the plaintiff as set out in Exhibit A attached to the plaintiff’s petition, for the year ending March 1, 1908, on substantially the same terms as set out An the plaintiff’s petition, and that the agreed rental therefor was the sum of $425, which was payable at the Kent Savings Bank, or the Union County Savings Bank of Kent, Iowa.” It will be observed that action cannot be brought in a county other than that of defendant’s residence, except it be upon a written contract which expressly provides that it is to be performed at some other place; and the pivotal question in the case is: Is this action brought upon such a written contract? If upon a contract implied as of law or of fact, the statute does not apply, and, if there be a written contract, the agreement to pay or perform at a given place must be express, in order to give a court at that place jurisdiction of the person. A contract arising from implication will not suffice. Wayt & Son v. Meighen, 147 Iowa, 26; Baily v. Birkhofer, 123 Iowa, 59; Ft. Dodge Co. v. Willis, 71 Iowa, 152; Manley v. Wolfe, 24 Iowa, 141; Hunt v. Bratt, 23 Iowa, 171. It is quite evident that there was no written contract between these parties for the year 1907-08. The written agreement of which the notes constituted a part, was for the previous year, and defendant is to be held, if at all, because of his conduct after the expiration of the written
' In virtue of a statute of this state (Code, see section 2991) a tenant holding over is presumed to be a tenant at will until the contrary is shown. But where he holds over for an entire year and the landlord received a part of the rent and recognizes the tenancy, perhaps a tenancy for the year is to be implied, upon the terms and conditions of the old lease, so "far as applicable. But even this last statement is doubtful. See O’Brien v. Troxel, 76 Iowa, 761, from which we quote the following: “The contention of the plaintiff is that when a tenant for years holds over after the termination of the tenancy with the assent of his landlord, and pays rent according to the terms of the lease, a tenancy from year to year is thereby established. Counsel for the defendant "concede that, in the absence of a statute, ‘ the preponderance of authority is to this effect; but such, he claims, is not the universal rule in this country. His contention is that there is a statute which changes or modifies the common-law rule; Such statute is as follows: ‘Any person in the possession of real property with the assent of the owner is pre
Again in German Bank v. Herron, 111 Iowa, 25, we said: “At the expiration of the term, Berner, who continued in possession with the assent of his landlord, became, under our statute, a tenant at will. O’Brien v. Troxel, 76 Iowa, 760; City of Dubuque v. Miller, 11 Iowa, 583. There is no reason, however, for extending the statute beyond its terms. Under the law as it formerly stood, a tenancy from year to year, or for less time, when definitely fixed, as the term in the lease, was implied from the tenant holding over with the assent of the landlord; and this under the same conditions as specified in the contract, in so far as applicable to the new situation. Herter v. Mullen, 159 N. Y. 28, (53 N. E. 700, 44 L. R. A. 703, 70 Am. St. Rep. 517); Mason v. Wierengo’s Estate, 113 Mich. 152, (71 N. W. 489, 67 Am. St. Rep. 461); Crommelin v. Thiess, 31 Ala. 412, (70 Am. Dec. 499); Goldsborough v. Gable, 140 Ill. 269, (29 N. E. 722, 15 L. R. A. 294); DeYoung v. Buchanan, 10 Gill & J. (Md.) 149, (32 Am. Dec. 156); Diller v. Roberts, 13 Serg. & R. (Pa.) 60, (15 Am. Dec. 578). This doctrine has even been extended to leases void as against the statute of frauds, where evidence may be introduced establishing them. Laughran v. Smith,
To the same effect, see Andrews v. Marshall Creamery Co., 118 Iowa, 595.
No matter which view obtains, it is perfectly clear that the tenant, if bound at all, is held under an' implied contract, as is pointed out in the German Bank case, supra. And the action is upon an implied contract. Ellis v. Paige, 18 Mass. (1 Pick.) 43; Brewer v. Knapp, 1 Pick. (Mass.) 332.
Plaintiff, in his petition, recognized this rule, for he did not seek to recover upon a written contract, but pleaded facts upon which an implied contract arose. True, the terms of that contract are presumed to be the same as the written one; but it is none the less a parol contract arising by implication. As the action was not and could not have been upon a written contract, there was no written agreement that it be performed at a particular place, and the motion to change the place of trial should have been sustained.
II. Defendant did not waive the error by going to trial. Foss v. Cobler, 105 Iowa, 728; Moyers v. Nursery Co., 125 Iowa, 672; Baily v. Birkhofer, 123 Iowa, 59; Hunt v. Bratt, 23 Iowa, 171; Kell v. Lund, 99 Iowa, 153.
For the error in overruling the motion to change the venue, the judgment must be, and it is, Reversed.