Newman v. Bird

Morrison, C. J.: Action to recover the possession of certain premises in the [374]complaint described, alleged to have been leased by plaintiffs to defendant. The case comes up on the pleadings and findings—there being no bill of exceptions or statement in the record.

The findings show that the plaintiffs were, on the twenty-ninth day of October, 1878, and ever since have been, tenants in common of the premises; that on that day they leased the same to the defendant for the term of one month; that by virtue of said lease defendant went into the possession thereof, and that he still remains in possession of the same, although the term of the lease has expired; that by virtue of the lease there became due to the plaintiffs, on the twenty-eighth day of April, 1879, the sum of ten dollars, and on the twenty-eighth day of May, 1879, the additional sum of ten dollars; that no part of said sums has been paid; that on the tenth day of June, 1879, demand of the rent was duly made in writing, but the defendant failed, neglected and refused to pay the same within three days; that demand upon the defendant to deliver up the possession of the premises was duly made; that the defendant has neglected and refused' to surrender such possession; that the defendant wrongfully withholds the premises from the plaintiffs; that there was not, at the time of the commencement of this action, any other action pending between the parties to this action, for the same cause mentioned and set forth in the complaint. From the foregoing findings of fact, the Court found, as a conclusion of law, that the plaintiffs were entitled to a judgment for the restitution of the premises in the complaint described.

1. The first point made on appeal is that the demand of the rent was insufficient, under Subdivision 2 of Section 1161, C. C. P. The notice was that “we hereby demand of you to pay the rent of the premises hereinafter described, and which you now hold possession of as our tenant, and which is unpaid, to wit, the sum of ten dollars, which became and was due from you as such rent to us on the twenty-eighth day of April, 1879, for the preceding month of your tenancy, and the sum of ten dollars, which became due from you as such rent to us on the twenty-eighth day of May, A. D. 1879, for the preced[375]