Boefer v. Sheridan

Rombauer, P. J. This action was brought before a justice of the peace. The plaintiff, in his statement, •charged that the defendant, on sundry occasions, maliciously, wilfully, unlawfully and voluntarily broke, injured and damaged certain parts of a building, property of the plaintiff. On the trial of the cause in the circuit court, the plaintiff gave evidence tending to show that the defendant was his tenant from month to month, and, as such, •occupied the premises in question for a blacksmith’s ■shop ; that, during such occupancy, the freehold was •inj ured by horses, tied to the shop, gnawing the woodwork and pulling out rings fastened in the walls, and thereby inj uring and tearing out part of the walls, also by horses breaking through the flooring in one place. The plaintiff also gave evidence tending to show that, at one time, the defendant and his employes materially injured a door on the premises by throwing large rocks .against it in playing at quoits ; also that the defendant’s employes broke the hinges off the outside door and injured its lock, in order to get into the shop when the key was lost or mislaid ; also that the defendant on one ■occasion negligently broke a pane of window glass ; and that the defendant agreed to repair the damages thus caused, but failed to do so. At the close of the evidence, the plaintiff was compelled to take a nonsuit, under an instruction of the •court that he could not recover. He appeals, and assigns this ruling of the court for error. The plaintiff’s statement does not aver that the defendant was his tenant. While we are not advised, [229] on the one hand, on what theory the plaintiff brought his action, we are not advised, on the other hand, on what theory the court nonsuitéd him. It is evident, however, that if the plaintiff’s statement set out any cause'of action, though inartificial!y, and'there was not an entire failure of proof of such action on his part, the ruling of the court was erroneous.,, The plaintiff’s statement shows a cause of action in trespass, and part of the evidence adduced by him shows a cause of action for commissive or voluntary waste. Now, while these two actions are different, and the plaintiff’s statement, if filed as a petition in a court of record, would have been fatally defective as a petition in an action of waste, it is a sufficient statement for either action before a justice of the peace, where no formality of pleadings is required. It advises the defendant of the nature- of the complaint, and bars another action for the same injuries. In Coughlin v. Lyons, 24 Mo. 533, it was held that a statement in the following form: “L. & S. to P. J. C., Debtor. To 41 hams, 464J lbs. at 10 cents $46.45 ; 2 bbls. whiskey, 77^ g'als., at 28 cts, $21.70 ; total $68.15,” was made good by proof, that the articles enumerated, being the property of the plaintiff, P. J. C., had been wrongfully seized at the instance of the defendants, L. & S., in an attachment suit against a third person. The liberal rule, thus announced, touching the requirements of. statements before justices has been approved and commented on in the analogous case of Hale v. Van Dever, 67 Mo. 732, and in subsequent cases, and is still the recognized rule in this state. That a tenant at will or sufferance is not liable for permissive waste, either at common law or under the statute, is conceded. As section 3107 of the Revised Statutes of 1879 mentions only tenants for life or years, it may also be conceded that a tenant from month to month, as the defendant was, under the provisions of section 3078 of the Revised Statutes of 1879, is also not [230] liable for permissive waste. In this case, however, the evidence had a tendency to show that the defendant was guilty of s'ome acts of voluntary or commissive waste, for which every tenant is responsible to his landlord, regardless of the duration of his term. It results that the court was not warranted to withdraw the case from the jury, either on the ground that there was such a variance between the allegata and probata as amounted to a failure of proof, or on the ground that the defendant, by virtue of his tenure, was not responsible for any of the damages caused to the freehold. The judgment will be reversed and the cause remanded. All the judges concur.