Opinion
Opinion delivered February 7, 1949.
1. — Landlord and Tenant — Eviction — War. Where tenant under written lease for 21 months held over after its expiration, tenant became a tenant from month to month subject to terms of the written lease, and was subject to eviction under Emergency Price Control Act for violating obligations of tenancy.
2. — Landlord and Tenant. Where tenant removed partitions which constituted a maid's room in corner of basement of leased premises, such removal of partitions constituted an alteration of basement of premises violating provisions of lease that tenant could not make any alterations, amendments or additions without written consent of landlord, and whether alteration was in nature of a betterment was immaterial.
Appeal from Circuit Court of Jackson County. — Hon. Allen C. Southern, Judge.
AFFIRMED.
Charles V. Garnett for appellant.
(1) The trial court erred in refusing to enter judgment for defendant, because removal of the temporary partitions in the basement of the leased premises did not constitute an "alteration" of the building, nor afford legal grounds for eviction. The action of unlawful detainer is purely statutory, in derogation of the common law, and subject to the rules of strict construction. Rust v. Dames (Mo. App.), 142 S.W.2d 797; Y.W.C.A. Ass'n. v. LaPresto (Mo. App.), 169 S.W.2d 78; State ex rel. Brown v. Bird (Mo. App.), 73 S.W.2d 821. (2) Removal of the temporary partitions in question did not constitute a substantial change in the building, and cannot legally be regarded as an "alteration" thereof. Loan v. Gregg, 55 Mo. App. 581; Mayer v. Texas Tire Rubber Co. (Tex.), 223 S.W. 874; Cawker v. Trimmel (Wis.), 143 N.W. 1046; Kresge v. Maryland Casualty Co. (Wis.), 143 N.W. 668; Briggs v. Sherman (Calif.), 223 P. 581; 3 C.J.S. 899.
Charles N. Sadler for respondent.
(1) The court did not err in entering judgment for respondent. The rule of strict construction in unlawful detainer cases applies to the procedure only, about which there is no question raised by appellant herein. It has nothing to do with construction of contracts or leases involved in the proceeding. State ex rel. Brown v. Bird, 73 S.W.2d 821-824. (2) The admitted acts of appellant in tearing out the maid's room, and refusing to replace same upon demand by respondent, was a "violation of the obligation of his tenancy, other than an obligation to pay rent, etc.," clearly entitling respondent to terminate his tenancy and evict him. Longmoor Corporation v. Jeffers, 205 S.W.2d 234, and cases cited; 50 U.S.C.A. Appendix, Sec. 901 et seq.; Housing and Rent Act 1948, Sec. 209 (a) paragraph 1; 3 Words and Phrases (Permanent ed.) 1948 Supp., p. 56. (3) The fact that appellant replaced the maid's room after the case was tried in Magistrate's Court and before it was tried in Circuit Court is no defense to this action. Home Trust Co. v. Shapiro, 64 S.W.2d 717, l.c. 726; Walters Commission Co. v. Gilleland, 73 S.W. 295, l.c. 296.
Plaintiff sued defendant in unlawful detainer and had judgment for possession and for $325 damages. Defendant appeals.
Plaintiff is the owner of a residence which he leased to defendant for a period of 21 months, beginning July 15, 1941, and which defendant held over, under the lease, from month to month, after the Emergency Price Control Act (50 U.S.C.A. Sec. 90 et seq.) came into existence. The lease provided that defendant should not, without the written consent of plaintiff, "make any alteration, amendments or additions to any of the buildings on said premises, or fixtures therein, * * *." In 1943 defendant, without plaintiff's knowledge, removed two wooden partitions in the basement which, before removal, constituted a maid's room. Plaintiff learned of this action in August, 1947, and immediately notified defendant to replace said partitions on or before September 1st. Defendant refused to replace same and plaintiff served notice to vacate. Defendant failed and refused to vacate and this suit followed.
Defendant's contention is that removal of the partitions did not constitute an alteration, amendment or addition to the building.
The facts are not in dispute. The partitions were made of wood, and were nailed to 2x4 pieces lying on the basement floor. They were 6 feet high and did not come to the ceiling but are attached to the joists thereof. They were so placed, in the corner of the basement, as to constitute a room. Plaintiff had installed this room, for a previous tenant, to be used as a maid's room. Defendant has, since this action was instituted, replaced said partitions in their original position, and testified to the effect that the job occupied him for one day, and required about $34 worth of material. Defendant stated that he removed the partitions that constituted a small room, 8x8, because the room was too small to be of any utility for his purposes, and because it tended to obstruct the stairway leading up from the basement. He wanted the entire basement space for use as a workshop.
Upon the expiration of the term of the written lease defendant became a tenant from month to month, subject to the terms of said written lease. Longmoor Corporation v. Jeffers, 205 S.W.2d 234, l.c. 237. He was subject to eviction, under the terms of the Price Control Act, for "* * * violating obligations of tenancy * * *." Longmoor Corporation v. Jeffers, supra, l.c. 236. It is plaintiff's theory that removal of the partition was a violation of the terms of the contract of lease.
In the Longmoor case, supra, the rental contract specifically provided that the tenant should not keep a cat, parrot, or other pet, in the apartment. The court sustained a judgment of eviction on the grounds that defendant had kept a cat in his apartment. The theory of both parties here is that if removal of the partition constituted an alteration, amendment or addition to the house, the judgment must be affirmed.
In Session v. State, 41 S.E. (Ga.) 259, l.c. 260, it is said:
"`Alter' has been defined: To make a change; to modify; to vary in some degree. Black, Law. Dict. To alter means to make a thing different from what it was. 2 Am. Eng. Enc. Law (2d Ed.) p. 179. To cause to be different in some respect; to make change in; vary in some degree, without making an entire change. Stand. Dict. To make otherwise; to change in some respect, either partially or wholly. Webst. Int. Dict. `Amend' has been defined: To improve; to make better by change or modification. Black, Law Dict. To make better; to change from bad to better. 2 Am. Eng. Enc. Law (2d Ed.) p. 305."
In Words Phrases, Vol. 2, page 284, the following appears:
"To alter a thing is to change its form or nature, without a destruction of the existence of the thing altered or changed, or a loss of its identity. Haynes v. State, 15 Ohio St. 455, 458; Davenport v. Magoon, 4 P. 299, 301, 13 Or. 3, 57 Am. Rep. 1; Heiple v. Clackamas County, 25 P. 291, 292, 20 Or. 147; City of Hannibal v. Winchell, 54 Mo. 172, 177; Black River Imp. Co. v. Holway, 59 N.W. 126, 128, 87 Wis. 584."
In Cross v. Nee, 18 F. Supp. 589, l.c. 494, Judge Reeves said:
"It might be said that to amend is to change for the better by removing defects or faults. It refers to that which falls short of excellence. To modify is to make different by change of quality. To alter is to change partially. But to change is to make a thing distinctly other than it has been. Again, in distinguishing between the words `change' and `alter', Webster says: `To change (the more general and stronger term) is to render something essentially different from what it was, even to loss of identity, or the substitution of one thing for another. To alter is to make different in some material respect, as in form or detail, without implying loss of identity."
From the words used in the contract it is apparent that defendant was bound to keep the property in statu quo, so far as its form and structure was concerned. He was not even permitted to improve it by "amendments or additions." Nor was he permitted to alter it, i.e., to vary it so as to make it otherwise, or to change it in some respect.
Defendant stated that he removed the partitions so as to make the basement more suitable for his use. Removal of the partitions made the basement into one large room, instead of two rooms, and removed an obstruction from in front of the stairway. Removal of the partitions constituted an alteration of the basement of the building. Whether or not the alteration was in the nature of an amendment, a betterment, is not material. Any amendment or alteration that he made was in violation of the terms of his contract.
The judgment should be affirmed. Boyer, C., concurs.
The foregoing opinion of SPERRY, C., is adopted as the opinion of the court. The judgment is affirmed. Cave, P.J., Bland, J. concur; Dew, J. not sitting.