Lund v. Ozanne

OPINION OF THE COURT. ABBOTT, J. (After stating the facts.) — Of the grounds of error assigned, the brief for the plaintiff in error specificalty presents for the consideration of the court the following: 1 First. That notice to quit and surrender possession of the demanded premises was not given to the plaintiff in error as required bjf section 3347 of the Compiled Laws of 1897. It is not denied that what purported to be such a notice was seasonably served on him, but it is alleged that it was not sufficiently definite to inform him that it came from the defendant in error and did not bear her signature. The statute in question does not require that such a notice shall be signed. Unquestionably, however, it should be so definite as to inform the party to whom it 1- directed, of its source and meaning. The notice was directed to Fletcher M. Lund, and besides describing the premises he occupied under the lease, less the portion deeded to Henry A. Ozanne, as what he was required to’ surrender, contained this language: “This demand is made by me as the owner and lessor against you, as the occupant and lessee of said hotel and premises.” There were no other persons or premises to whom those words should have referred. Their meaning was unmistakable and could not have left the plaintiff in error in doubt as to the meaning and origin of the notice. 2 Second. That the plaintiff in error was released from liability for at least a part of the rent stipulated in the lease to him by eviction under a paramount title from a portion of the leased premises, and so was not in default, and if liable for any part of the rent in this cause could not be held for the entire rental of twenty-five dollars per month. The deed from the lessors to Henry A. Ozanne of a portion of the leased premises referred to in the statement of facts, in connection with the notice received by the lessee purporting to come from the grantee in the deed, it is claimed, had the effect of evicting him from the premises conveyed by the deed, which was absolutely in form and not in terms, subject to the lease held by Lund.- The record does not show that this question was raised by a request for an appropriate instruction to the jury or by an exception to any instruction that was given, or to anything done or committed by the court prior to or at the time of trial. Such being the ease, it is not open to consideration by this court. Territory v. Watson, (N. M.) 78 Pac., p. 504, and cases cited; Territory v. Eaton, (N. M.) 79 Pac., p. 713. 3 Third. That the rent was not demanded on the leased premises on the day when due. The rigor of the common law rule, which is here invoked, no longer prevails as far as we are aware, in any jurisdiction. If the lease is silent as to thé place of payment, the practice of the parties may establish it. In the - case at bar, it appeared that the rent had invariably been paid- at the residence of the lessors, and an offer to pay so much of the rent for which the plaintiff in error was held liable in the present cause as he admitted to be due, was made there in his behalf, and refused on the ground that it was less than the amount claimed and then stated to be due. ' We think the lessee must be held to have waived the right, if it at any time existed, to have demand made on the leased premises. 4 Fourth. That permission to file’a complaint in place of one alleged to have been lost was given by the district court. We think it was „a proper exercise of the discretion of the court to permit a copy of the complaint which had been lost to be substituted for it, under section 2685, sub-sec. 116 of the Compiled Laws of 1897. 5 Fifth. That the justice of the peace before whom the cause was originally tried had no power to try it for the reason that, as alleged, his oath of office had not been recorded, as required by section 3226 of the Compiled Laws of 1897. The oath of office itself, and not the record of it, is made a condition precedent to the right to act as justice of the peace and there was no evidence that such oath had not been taken by the justice in question. The judgment of the district court is affirmed. William J. Mills, C. J., John E. McFie, A. J., Frank W: Parker, A. J., Edward A. Mann, A. J., concur! Pope, A. J., having tried the case did not participate in this decision.