Centennial Brewing Co. v. Rouleau, 49 Mont. 490 (1914)

There is another feature of it, however, to which we venture to call the attention of counsel, though they have not referred to it in their brief, vis., the absence of a specific allegation that [3] the holding over by the defendants was without the permission of plaintiff. A holding over without the permission of the landlord is an essential element of the wrong defined and denounced by the statute; hence we think that to state a cause of action, the complaint should allege specifically the character of the holding, or state facts sufficient to furnish a clear inference that it is contrary to the landlord’s wishes or unlawful. The character of the defendants’ possession in this case is inferable— if at all — from the allegation in the latter part of the complaint that “since the commencement of the plaintiff’s lease, defend*501ants have failed and refused to surrender possession of said premises.” Whether this allegation renders the complaint sufficient to withstand attack by general demurrer is, to say the least, doubtful. We refer to this feature of it in order to avoid the implication that we deem direct allegations on this subject unnecessary.