Messerly v. Mercer , 45 Mo. App. 327 ( 1891 )

Ellison, J.

— This action is for a month’s rent of a room. The judgment below was for plaintiff. The ■defendant did not occupy for the month sued for, and he was held liable on the theory that he was a tenant, and that he failed to give the statutory notice of his intention to quit. There was evidence tending to show that plaintiff leased the building, in which was the room in controversy, for a term of years, and that he ■occupied the lower part as a general store; the other floors were divided into rooms, which, including the room in question, were in charge of a female housekeeper employed by plaintiff; the rooms were furnished with carpet and bedchamber furniture; that they were daily cared for and kept in order by this woman; that fires were made and fuel furnished, as was, also, fresh water, towels, soap and other things needed in such apartments ; that the rooms were used .and occupied only for sleeping and lodging, and that the key to the room in question was kept by the woman in charge; that there was a sign on the stairway, in large letters, “Furnished Rooms.” The court refused an instruction stating in effect that if such testimony was believed by the court that thirty days’ notice of an intention to quit was not necessary; and found for plaintiff on the theory that such notice should have been given.

The cause having been tried by the court, instructions need only be considered in order to ascertain the theory upon which the cause was decided. We are satisfied from the refusal of the one asked by defendant that the theory as contended for by defendant did not have consideration. This was error. If the evidence for defendant is to be believed, he was a mere lodger and not a tenant. If such was the case no notice of intention to quit was necessary, as the statute of landlord and tenant does not apply, and the remedy between the parties would be governed by their contract. White v. Maynard,, 111 Mass. 250; Cochrane v. Tuttle, 75 Ill. 361; Monks v. Dykes, 4 M. & W. 567; Wansey v. Perkins, 7 M. & G. 151; Pitts v. Smedley, 7 M. & G. 85; Brewer v. McGowan, L. R. 5 C. P. 239; Smith v. Lancaster, L. R. 5 C. P. 246. Defendant’s testimony shows not only the house to have been under the direct-control and supervision of plaintiff, but that the room in question was furnished and attended by plaintiff, whose servant retained the key thereto. Defendant makes himself a lodger, and not a tenant. The issue is whether he be a lodger or tenant, and, if instructions are given at all, both hypotheses should be submitted.

It is, however, suggested that the court made a finding of facts which show defendant to be a tenant, and that his testimony was not believed. But the difficulty with this contention is that important points made in defendant’s testimony are not disputed by anything in the case,- and are yet ignored. So, also, some important controverted points ai’e ignored in the specific finding. As far as the record shows, it leads us to the conclusion that defendant’s theory, in its entire scope, has not received consideration in the court’s conclusions.

The judgment is reversed and the cause remanded.

All concur.