Bennett v. Hollinger ( 1909 )

Miller, President :

In unlawful detainer, begun before a justice, plaintiff obtained judgment on appeal in the circuit court for possession of the property, and $132.00 damages; the damages demanded in the writ being only $100.00.

The first point made is that the original summons and complaint, as amended, are too indefinite and uncertain in description of the property shed for. It is described as "a part of Lot No. 166, as shown on the recorded plat of Chester, Hancock County, West Va., and described as follows: The West side of said lot fronting 36 feet on Indiana Avenue, thence along said lot No>. 166 — 68 feet to an alley, along said alley .34 feet, thence across said lot No. 166 to place of beginning.” The verdict and judgment were for the property described in 'the summons as amended. ' We' think the amendment was proper and the description sufficient. Simpkins v. White, 43 W. Va. 125; Thorn v. Thorn, 47 W. Va. 4; Drinkard v. Heptinstall, 55 W. Va. 320; Billingsley v. Stutler, 52 W. Va. 92.

The complaint charges a renting by the month, and a breach of the contract to pay rent. This is the cause of action stated, .The evidence shows, or tends to show, a renting by the month, and not a tenancy from month to month. A tenancy from month to month, which may be determined on notice, is said to be in the nature of a tenancy at will. It is created by agreement, or it may be implied from the manner in which the rent is paid. A lease for an indefinite term with monthly rent reserved, creates a tenancy from month to month; it is a continuing one, and not a new tenancy by renewal at the beginning of each month. 24 Cyc. 1034; 1 McAdam on Landlord and Tenant, section 40. Such a tenancy is distinguished front a tenancy by the month in that the latter is for a definite period, to-wit, one month, while the former is for an indefinite period. A tenancy from month to month requires notice to quit before action brought for possession; and, if the ground of the action be a breach of the contract to pay rent, rent must also be demanded at the time and place stipulated. But where the tenancy is by the month, terminating at the end’ of each month, no notice to quit is required. 24 Cyc. 1034, 1035; 1 McAdam] on Landlord and Tenant, section 179. Our statute, section 3398, Code 1906, says notice is unnecessary where the term is to end at a certain time. This was the law applied in Drinkard v. Heptinstall, supra, point 3 of the syllabus.

But though no notice to quit is required where the tenancy ends on a day certain, as in case of a monthly renting, thé authorities are agreed that demand for possession and refusal to renew is a condition precedent to right of action. Drinkard v. Heptinstall, supra; Hays v. Altizer, 24 W. Va. 505, 507; Hukill v. Guffey, 37 W. Va. 425, 454; 6 Ency. Dig. Va. & W. Va. Rep. 171; Bowyer v. Seymour, 13 W. Va. 13. There is not a particle of evidence in this case showing any demand-for possession or payment of rent. Plaintiff does say that about the end of the first month defendant notified him that Mrs. Bloom, from whomi plaintiff claimed to have purchased the property, but who had made him no deed, had notified him to pay no more rent to plaintiff; that was in July, 1907, eight months or more before suit brought. But he does not pretend to have then made any demand for rent, or possession of the property. On the contrary, he practically admits an agreement with defendant that he should pay Mrs. Bloom, talcing receipts from her. No cause of action, therefore, had accrued to defendant when he instituted this suit.

Another point of error relied upon is that the judgment for damages exceeded the amount sued for, and that it is excessive. There was absolutely no proof of any damages, except non-payment of rent, which the uncontradict'ed evidence' shows ' was, with consent of plaintiff, paid to Mrs.' Bloom. Section 3397, Code 1906, provides that: “The attornment of a tenant to any stranger shall be void, unless it be with the consent of the landlord of such tenant,” etc. The evidence is flat that the plaintiff not only consented that the defendant should attorn to Mrs. Bloom, but that he practically directed him to do so, and to take receipts therefor. Wherefore the jury was unwarranted in .finding damages for plaintiff, by wajr of rent accrued under the lease. We held at this term, in Salem Traction Co. v. McGraw, 66 W. Va. 321 (66 S. E. 463) that in an action of assumspsit on a contract, the jury cannot, for damages, allow an amount beyond the amount laid in the declaration, except where the verdict over that amount may be lawfully attributed to interest. Inasmuch as plaintiff in this case was not entitled to recover rent, and there was no proof of any other damages, the verdict for damages was also unwarranted, and the verdict should have been set aside.

Our judgment here will be that judgment below be reversed, the verdict set aside, and a new trial be awarded.

'Reversed.