298 P. 363 | Idaho | 1931
Lead Opinion
Appellant sued respondent for $1,840 under a lease for thirty months, from January 15, 1929, at $70 per month for the first twelve months, and $75 per month for the balance of the time.
Appellant alleged that an oral lease as above, was entered into with the understanding that later a written lease was to be drawn to the same effect, but when so prepared, respondent refused to sign it, and refused to pay after the expiration, June, 1929, of his five months' occupancy of the premises, having paid therefor $70 per month from January, 1929.
Respondent denied the above agreement, and claimed that he had leased the premises for only the five months, the unexpired period of the lease of a former tenant. The appeal is from a directed verdict in favor of respondent.
If reasonable inferences may be drawn from the evidence sustaining appellant's contention, the motion was *488
improperly granted (Keane v. Pittsburg Lead Co.,
Appellant testified that she and respondent agreed on a three-year lease, and that she so instructed her scrivener, but the written lease as drawn by her agent and submitted to respondent, was for thirty months.
The scrivener who handled appellant's rental business, testified respondent told him the written lease was to be drawn for thirty months. Thus appellant's own witness contradicts her, and either there was no meeting of the minds, or if we take appellant's testimony for full value, and she may not urge that we disregard it, and it would be unreasonable to do so, the oral agreement was for three years, but appellant alleges, and relies on a thirty months' agreement, an impasse with the burden of proof on appellant, therefore no support of the essential allegation. (McDonnell v. Jones,
To sustain the allegations of the complaint, the evidence must lead reasonably to the inference that the minds of the parties met upon the oral agreement stated, i. e., thirty months. (Gaskill v. Jacobs,
Respondent denied either a thirty months or three-year lease, and his direct or cross-examination does not aid appellant's allegation of a thirty months' lease. From the testimony no reasonable inference may be drawn that appellant and respondent agreed to a lease for thirty months as alleged and sued for, and the motion was properly granted. (Crabill v. Oregon ShortLine R. R. Co.,
It is not a question of variance, but failure of proof to establish the lease alleged. (Holt v. Spokane Palouse Ry.Co.,
Judgment affirmed. Costs to respondent.
Lee, C.J., and Budge, Varian and McNaughton, JJ., concur.
Addendum
In a petition for rehearing, appellant contends we have fallaciously and illogically differentiated between failure of proof and variance.
The complaint alleged a certain definite specific oral lease, to be reduced later to writing, and the evidence failed to reasonably show that the minds of the parties met on the terms of the lease alleged. The authorities clearly recognize this as failure of proof. (36 C. J., sec. 1335, p. 417; 36 C. J., sec. 1348, p. 427; 49 C. J., sec. 1204, p. 816.) *490
In Locke v. Kennedy,
"While the evidence did not show a variance, it did not prove the allegations of the count as they were laid. It is yet the rule that material descriptive averments must be proved as laid, and the allegations that the indenture bore date November 13, 1893, that the term was for three years from that date, and that the unpaid rent which the defendant owed was for seven months from that date, were descriptive averments, which identified the contract sued on, and which we think must be proved as laid to enable the plaintiff to recover upon the count as the declaration then stood. Stanwood v. Scovel, 4 Pick. 422; Whiting v. Withington, 3 Cush. 413; this objection to the plaintiff's recovery could easily have been removed by an amendment. Birnbaum v. Crownshield,
No motion to amend the pleadings to conform to the proof was made herein.
Petition for rehearing denied.
Lee, C.J., and Budge, Varian and McNaughton, JJ., concur. *491