108 Ind. 202 | Ind. | 1886
On the 18th day of August, 1884, Morgan Andis and Amos M. Personett entered into the following agreement in writing:
“ This lease, made and entered into by and between Morgan Andis, of the first part, and Amos M. Personett, of the second part, witnesseth that the said Morgan Andis has this •day leased and rented, and to farm let unto said Personett, the farm on which the said Andis now resides, in Brandywine •township, Hancock county, Indiana, containing about one hundred and fifty (150) acres. Said Personett is to have
On the 1st day of October, 1884, Personett filed his complaint in the court below, founded upon the foregoing lease, in which he averred that he had executed a note to Andis for the sum of $500, with interest at the rate of eight per cent., conformably in all respects to his agreement to execute-a note in that sum, bearing date tire 6th day of September, 1884, and procured one Daniel Snider to sign the same as surety thereon; that said Snider was at the time, and has-since continued to be, the owner of real estate, in Hancock and Madison counties, in this State, of the value of $20,~ 000, and free from every encumbrance whatever; that the-said Snider was worth, over and above all his indebtedness,, the sum of $20,000; that after said note was so executed he, Personett, tendered the same to Andis, who refused to either receive or accept such note, “without cause;” that he, the said Personett, at the time of tendering said note, and at divers times thereafter, demanded from the said Andis, possession of so much of the farm as was necessary to enable him to sow wheat, as was provided by the lease he might do-in the autumn of 1884, but that the said Andis had refused at all times to permit him, the said Personett, to take possession of, or to have access to any part of the farm, and had absolutely refused to allow him to sow wheat thereon. Upon these and other facts charged, both general and special damages were demanded.
At the succeeding October term of the court below, a demurrer to the complaint was overruled, and a trial resulted in a verdict and judgment for Personett, the plaintiff.
Error is assigned upon the overruling of the demurrer to the complaint, and upon the denial of a motion for a new-trial, which was, at the proper time, interposed.
■ As against the sufficiency of the complaint, it is urged that as no time was specified within which Personett was to execute a note to Andis for the rent of the farm, it was requisite
As we construe the lease, the execution of a note for the rent was not a condition precedent to Personett’s right to a partial possession of the farm for the purpose of sowing wheat. For that purpose he was to have possession “ at once,” while all the other agreements and stipulations of the lease were of a character which required some intervening time for their performance. ,
There was a reason for not requiring the execution of the note to be a condition precedent to the right to sow wheat, as Andis did not bind himself to give full possession' of the farm until the 25th day of December following, and as the sowing of a part of the farm in wheat, in the meantime, by the labor and means of Personett was not likely to entail any loss upon Andis, Andis evidently had until the 25th day of Decembei', 1884, in which to complete the repairs which he agreed to make, and the inference is plain that all the provisions of the lease were not to go into full effect until that day.
This inference leads us to hold that the execution of a note for the rent by Personett was only a condition precedent to his right to full possession of the farm on said 25th day of December, 1884, and that he was not absolutely required to •execute such a note previous to that time. As has been seen, the note was not to begin to bear interest until that day, and hence it was not' to become a profitable security until the time fixed for interest to begin. This fact strengthens our con
The further inference from the averments of the complaint is, that the note was executed and tendered previous to the time at which the complaint was filed; and we regard that as having been in ample time to prevent a forfeiture of any of Persouett’s rights to possession under the lease.
It is further urged that the provision of the lease which obligated Personett to procure a “ good and approved freehold surety ” to sign the note with him, conferred upon Andis the right, as he might see fit, to approve or disapprove any person who may have been offered as surety under that provision, and that hence Andis had the right to reject any note tendered by Personett on which the surety was, for any cause, unacceptable to him. Wo are unable to agree to such a construction of the lease. The word “approve” has several' shades of meaning. One of the definitions which Webster gives of it is, “to make*or show to be worthy of approbation or acceptance, to commend,” and it is in that sense we-construe the word as it was used in connection with the surety which was to he furnished by Personett. The phraseology used in the provision in question was equivalent to saying that Personett should execute a note, with “ good freehold surety worthy of approval.” ' In view of the nature of the transaction as evinced by the entire lease, any less liberal construction than this would scarcely seem reasonable, and might have been made to work great injustice to Personett. We consequently see no objection to the substantial sufficiency of the complaint.
At the trial the circuit court instructed the jury that whether the note was tendered within a reasonable time, was a question of fact for their determination under all the circumstances of the case in evidence before them, and it is still further urged that the circuit court erred in so instructing the-jury, upon the ground that such reasonableness of time was-a question of law for the court, and hence not one of fact for
Some questions upon the evidence are suggested in argument, but in response to these objections the point is made' that the bill of exceptions, purporting to contain the evidence, is not properly in the record, and that the evidence is, in legal contemplation, not before us.
On the 7th day of November, 1884, sixty days time was given within which to prepare and file a bill of exceptions in the cause, and the transcript shows that the bill of exceptions, purporting to contain the evidence, was not presented to the judge for his signature until the 7th day of January, 1885, and that it was not filed until the 14th day of that month. The bill of exceptions was, therefore, neither presented to the judge nor filed in time, and hence is not a part of the record. E. S. 1881, sections 629 and 1849; Corbin v. Ketcham, 87 Ind. 138; LaRose v. Logansport Nat’l Bank, 152 Ind. 332; Shulse v. McWilliams, 104 Ind. 512; Robinson v. Anderson, 106 Ind. 152.
The judgment is affirmed, with costs.