McClung v. McPherson

Decided 28 August, 1905.

On Motion for Rehearing.

Mr. Justice Moore

delivered the opinion of the court.

8. A petition for a rehearing having been filed, it is insisted by defendant’s counsel that in the former opinion a legal principle for which they contend was overlooked, to wit: That as the lease under which the defendant held the premises provided that the sum of $100, as rent, should be paid in advance on the 1st of each month, and also stipulated that in case of a sale of the real property a notice of 60 days should be given to determine the tenancy, and *86as the notice given by the Savings & Loan Society was served on the defendant February 3, 1904, no action to recover the possession of the land could have been maintained until the end of a rent period then next ensuing after the expiration of the time specified in the notice, or prior to May 1 of that year, but, this action having been commenced April 16, 1904, the notice was insufficient. The doctrine invoked is to the effect that a notice to determine a tenant’s estate in real property must require him to quit the demised premises at the end of one of the recurring periods of holding: 2 Taylor, Land. & Ten. (8 ed.), § 477; Baker v. Adams, 5 Cush. 99; Hendry v. Squier, 126 Ind. 19 (25 N. E. 830, 9 L. R. A. 798); Dix v. Atkins, 130 Mass. 171; Hart v. Lindley, 50 Mich. 20 (14 N. W. 682); Steffens v. Earl, 40 N. J. Law, 128 (29 Am. Rep. 214); Finkelstein v. Herson, 55 N. J. Law, 217 (26 Atl. 688). Whether or not such a rule is applicable in this State is not deemed ■ necessary to a decision herein; for, if the principle-is controlling, it was waived by the defendant. The point now insisted upon amounts to no more than an objection that the action was prematurely brought, and hence it should be dismissed. If so, the defendant’s remedy was to interpose a plea in abatement; but, not having done so, his answer to the merits relinquished the right, if it exists : Winter v. Norton, 1 Or. 43; Hopwood v. Patterson, 2 Or. 49; Derkeny v. Belfils, 4 Or. 258; Chamberlain v. Hibbard, 26 Or. 428 (38 Pac. 437).

9. It is also argued that the burden was imposed upon plaintiff to prove what notice was given to terminate the lease and to authorize the bringing of this action ; that permitting the notice, to which plaintiff’s name was evidently subscribed by his attorneys, to be offered in evidence, without objection, did not admit its sufficiency ; and that the distinction between the competency of evidence and the legal effect thereof was not maintained by this court. *87The rule is quite general that where the validity of a private writing, purporting to have been signed by an agent on behalf of his principal, is challenged, the document is not admissible in evidence without proof of the agent’s authority, express or implied: Fadner v. Hibler, 26 Ill. App. 639; Swaine v. Maryott, 28 N. J. Eq. 589; Darst v. Doom, 38 Ill. App. 397.

10. Where, however, the adverse party permits such paper to be offered in evidence without interposing an objection, he thereby admits the agent’s authority. Thus, in Bartlett v. O’Donoghue, 72 Mo. 563, it was held that the failure of a party to object to the admission in evidence of an unacknowledged deed conceded its execution, the court saying: “The-failure of the defendant to object to the introduction of this instrument in evidence, when offered, would dispense with any proof of its execution, but it could not impart to it any efficacy as a conveyance which it would not otherwise have. Being admitted in evidence as a genuine instrument, signed by the parties named therein as grantors, its legal effect was still to be determined, as much so as if it had been objected to when offered.” So, too, in Lowe v. Bliss, 24 Ill. 168 (76 Am. Dec. 742), a promissory note having been received in evidence, Mr. Justice Walker, in referring thereto., said : “When the defendant permitted it to be read-without objection, he must be held to have admitted that it was in evidence, and that it was duly executed, but not that it was sufficient evidence to warrant a recovery.” In Birney v. Haim, 2 Litt. 262, it was held that, when a deed was offered in evidence purporting to have been executed by trustees of a town, the person against whom it was offered might object to its being read without proof that they were trustees, but that moving the court, after it had been read, to instruct the jury that nothing passed by the deed, was not the way to take advantage of the want of such evidence.

*8811. Permitting the introduction of evidence unchallenged does not admit it to be legally sufficient for the purpose for which it was offered : State v. Kaufman, 45 Mo. App. 656. In the case at bar, the failure of the defendant to object to the introduction in evidence of the notice signed by plaintiff’s attorneys concedes their authority to subscribe his name to the writing; but it does not admit the sufficiency of the document, which it was the province of the court to determine and is the only question involved on this branch of the case.

12. A notice to quit must be in writing: B. & C. Comp. § 5756. It should describe the premises with reasonable certainty for identification and require the tenant to remove therefrom on a specified day: Gear, Land. & Ten. § 191; Taylor, Land. & Ten. (8 ed.), § 488. An examination of the notice served upon the defendant April 5, 1904, will show that it complies with these several requirements, and was, therefore, legally sufficient.

Believing that the former opinion correctly states the law applicable to the facts involved, we adhere thereto.

REVERSED ; REHEARING DENIED.