Flournoy v. Everett

JAMES, J.

Appeal taken by the defendants from a judgment entered in favor of the plaintiff. Judgment was for the possession' of certain described premises and for the sum of $268.50 damages, together with costs.

[407]

Plaintiff alleged in her complaint that defendants were tenants occupying a certain apartment in a building controlled by the plaintiff, and that the rental required to be paid was the sum of $35 per month, payable on the thirteenth day of each month in advance; she alleged the nonpayment of the rental accruing on the thirteenth day of December, 1919, and the thirteenth day of January, 1920; she alleged that on the 20th of December, 1919, she had served written notice on defendants requiring them to pay the rent then due or deliver up possession of the apartment; prayer was for restitution of the premises, for damages in the sum of $70, and that such damages be trebled in amount. Defendants answered, claiming that they had tendered the amount of rent due and that the plaintiff, in .violation of a written lease agreement, had attempted to increase the amount of rent: The cause came on for trial and was determined by findings of fact filed April 28, 1920. Judgment was entered on the same day.

It is the contention of appellants that a certain writing introduced in evidence was in effect a written lease for a term from September 13, 1919, to September 13, 1920. That writing was a memorandum which contained no statement of a definite term, but merely fixed the amount of rental to be paid. If in fact it was the intention of the parties to make the writing express a lease agreement for a definite term, the language is not certain enough to import such an agreement. We think that the trial judge properly held that the tenancy was one from month to month.

It is the further contention of appellants that certain findings are not within the issues made by the complaint and that the findings do not support the judgment as entered. We confess that we are utterly at a loss to understand how a part of the items included within the court’s findings were arrived at. In that portion of the findings wherein the amount of rental which had accrued is determined, the court’s language is as follows: “Installments due December 13th, 1919, $36.00; January 13th, 1920, $36.00; February 13th, 1920, $75.00; March 13th, $75.00; April 13th to April 26th, 1920, $32.50; 1920, $75.00; April 13th to April 26th, 1920, $32.50.” The court further determined that the plaintiff had suffered damages on account