Larson v. Baker

Mulroney, J. Plaintiff sued in municipal court alleging that he was entitled to the possession of certain premises under a lease signed by the defendant Cora Baker wherein she leased the premises to plaintiff for one year commencing September 1, 1943. The plaintiff alleged that he had not abandoned or forfeited the lease but that the defendant Cora Baker “has since the 1st day of September * * * refused to deliver the (premises) up to plaintiff, and the defendant Cora B. Baker unlawfully keeps him out of possession * * * and (she) has leased the * * * property to the defendants, Mr. Gustaf H. Bliesner and Mrs. G. H. Bliesner who are now in possession of the * * * property.” The prayer was for judgment for possession and damages. The defendants moved to dismiss the petition because (1) it did not state a cause, of action and' showed on its face that plaintiff was not entitled to any relief and (2) because the action was in ejectment and failed to show that plaintiff had title to the premises he sought to recover. Defendants attempted to amend this motion, before submission, to point out that the petition failed to state- a cause of action because it failed to allege performance of the lease contract on the part of the plaintiff. The trial court sustained plaintiff’s motion to strike the amendment as being an attempt to make a second motion, and then overruled the defendants’ motion to dismiss the petition. The defendants’ answers admitted the execution of the lease but alleged it was breached and abandoned by the plaintiff before the property was leased to the Bliesners, and the sum of $50 paid by the plaintiff to Cora Baker at the time of the execution of the lease was' returned to him. Plaintiff’s reply admitted that his check for $50 had been returned to him but that he held a receipt signed by Cora Baker showing' rent paid to October 15, 1943. A motion to strike the reply was overruled but a motion to make it more specific was sustained. The amendment to the reply, in compliance with the sustained motion, set up an agreement on or about September 8, 1943, wherein it was alleged defendant Baker was to deliver possession of *202 the premises by September 15th, return plaintiff’s check for $50, and give plaintiff 'a receipt for rent paid in the sum of $75 or to October 15, 1943, in return for plaintiff’s dismissal of a certain lawsuit he had brought against the defendant Baker after the plaintiff was in possession. This amendment was met with defendants’ motion to strike, because it attempted to change the contract sued upon, and other grounds, but the same was overruled. By agreement of the parties the ease was tried to the court, which found for plaintiff and rendered judgment in his favor for possession of the premises and $50 damages. Defendants have appealed. The testimony of the plaintiff established the execution of the lease which provided for the payment of $50 a month rent in advance, the delivery by the plaintiff of his cheek for $50 at the time the lease was executed, and the failure of the defendant Cora Baker to give possession on September 1st. Plaintiff testified he then instituted an action against Cora Baker for specific performance and thereafter plaintiff and said defendant entered into an agreement under the terms of which defendant Baker agreed to give plaintiff possession on September 15th and credit for $75 rent because of the delay in possession and because of the expense and inconvenience he had been put to. The defendant Baker returned the $50 check to plaintiff and gave him a written receipt for rent up to October 15, 1943. Plaintiff was to dismiss his earlier suit for specific performance after he was in possession. On September 13th defendant Baker informed plaintiff that she was not' going to deliver possession to’ him on the 15th of September, or upon any other date; that she had been told the lease was not any good. The defendants introduced no testimony, but here allege error (1) in the trial court’s order striking defendants’ amendment to their motion to dismiss (2) in overruling defendants’ motion to dismiss (3) in refusing to dismiss plaintiff’s ease because “there was a material variance” between the allegations of the petition and proof and (4) in allowing damages because there was no proof and same were settled by the rent allowance. *203 I. Of course, defendants’ amendment to their motion to dismiss, made before the submission of the motion, should have been allowed. Rule 111, Iowa Rules of Civil Procedure, forbids the filing of more than one motion to dismiss, but it does 'not forbid the allowance of an amendment to a filed motion before its submission. The amendment merely .made specific that which was too general in the original motion. The original motion sought dismissal because the petition “does not state a cause of action.” The amendment was helpful as showing defendants’ position that the petition did not state a cause of action because it failed to allege performance of the lease contract on plaintiff’s part. No possible prejudice could have resulted from this ruling for the issue could have been presented under the original motion and the same issue was raised in the answer and objections to testimony and a subsequent motion to dismiss at the close of plaintiff’s testimony. II. The motion to dismiss was rightly overruled. Defendants are wrong when they state this is a suit upon a written contract. This is a statutory suit known as an action of ejectment, under chapter 517, Code of 1939. Hinman v. Sage, 213 Iowa 1320, 241 N. W. 406. It is not a suit “brought upon an executory contract” wherein plaintiff must allege performance on his part as defendants contend. In this action the petition is sufficient if it meets the' requirements of section 12235, Code of 1939. There it is provided: “The petition may state generally that the plaintiff is entitled to the possession of the premises * * * the quantity of his estate * * * the extent of his interest therein, and that the defendant unlawfully keeps him out of possession, and the damages, if any * * It is enough to state that the petition in this “action of right” meets the statutory requirements. See, also, Jensen v. Nolte, 233 Iowa 636, 640, 10 N. W. 2d 47, 49. III. The oral agreement for possession on September 15th, that resulted in the return of plaintiff’s $50 check and the execution of the rent receipt in settlement of plaintiff’s damages for failure to give him possession on September 1st, in return *204 for plaintiff’s promise to dismiss the specific-performance action, did not result in any variance. The argument advanced by defendants that this is a suit upon a contract where plaintiff declares upon a written contract and seeks recovery upon a different contract is all answered by our earlier observation that this is not a suit upon a contract at all. Clearly plaintiff had a leasehold estate after the execution of the lease and the delivery of his check. The later agreement which resulted in the return of his check and the delivery of a receipt for rent paid did not work a rescission or modification of that estate except as to the date of possession. In fact, it would seem to confirm the granted leasehold interest. IV. The damages allowed were almost nominal. The evidence showed plaintiff had been put to the expense of one move and-the trouble of preparing for another. The amount, $50, is just about what defendant Baker was willing to allow as indicated by the rent receipt for a month’s occupancy rent free. The argument that all damages were paid by the receipt is specious in view of the record that plaintiff was at all times denied possession. V. In an additional brief and argument filed in this court the defendants for the first time raise the question of the jurisdiction of the municipal court to hear this case. Section 10655, Code of 1939, gives municipal courts concurrent jurisdiction with district courts in all civil matters “except * * * those directly affecting the title to real estate.” Defendants argue this action directly affects Cora Baker’s title. We held in Jensen v. Nolte, supra, under identical facts, that the right to possession and not the title was the subject matter of such an action. Plaintiff’s leasehold interest, upon which he bases his right to possession, secures for him the possessory rights he claims only when he recognizes and concedes the defendant Baker’s title. In Jensen v. Nolte, supra, as here, the statement that in ejectment “plaintiff must recover on the strength of his own title” has been urged upon us as a rule of law„ that governs all ejectment cases. It is only a rule of law where plaintiff in ejectment is seeking his right to possession upon allegations that the title is in him. It has no application where, *205 as here, the right to possession is not based on assertions of title. The judgment of the trial court is affirmed. — Affirmed. Mantz, C. J., and Hale and Wennerstrum, JJ., concur. Smith, J., specially concurs. Oliver and Garfield, JJ., dissent.