86 Neb. 326 | Neb. | 1910
In March, 1908, Mr. W. A. Eddy was the representative of the Atlas Oil Company in Omaha, and one Smith represented the Weber Gas & Gasoline Engine Company at that place. On the 28th of March of that year Mr. Eddy and Mr. Smith executed a contract of lease with the plaintiff, whereby the plaintiff leased a certain building in Omaha for the term of one year for the agreed rental of $100 a month. This lease was signed by Mr. Smith as “Mgr. Weber Gas & Gasoline Engine Co.”, and was signed by Mr. Eddy individually. It also recites that the Weber Gas & Gasoline Engine Company and W. A. Eddy are the lessees. The building was occupied and used by the Weber Gas & Gasoline Engine Company and the Atlas Oil Company, and other parties. Eight hundred dollars of the rent was paid, and this action was brought by the plaintiff to recover the remaining $100 of the year’s rent, with interest thereon. Both of the above named companies were made defendants, as was also Weston A. Eddy, who signed the lease, as before stated. There was no service on the Weber company, and at the close of the evidence the plaintiff dismissed the action as to Mr. Eddy. The petition alleges that the plaintiff and the Weber Gas & Gasoline Engine Company and W. A. Eddy entered into a contract of lease, whereby the Weber company and “the said W. A. Eddy, as appears on the face of said lease, did rent and lease” the building, etc. It sets out the terms of the lease and the payments, as above stated, and contains the allegation that “with reference to the
1. Upon the trial of the case the plaintiff introduced in evidence a letter, purporting to come from the Atlas Oil Company, which is as follows: “The Atlas Oil Company, Miners’ Lard and Lubricating. Office, 1050 Rose Bldg. Works, Junction C. & P. & N. Y. P. & P. R. R.’s. A. E. Roblee, Secy. & Manager. Cleveland, O., Mar. 30, 1904. Mr. O. C. Rosewater, Prop. Omaha Bee, Omaha, Neb. Dear Sir: Our western representative, Mr. W. A. Eddy, has advised ns that he has entered into a lease with you for the building now occupied by us at 916 Farnam St., Omaha, Neb., and that you wished to have a statement from us as to whether such lease had our approval. We beg to advise you that Mr. Eddy is our authorized representative, and that the lease which he has made is in the name of the company, and is assumed by us. We have a contract, with Mr. Eddy, as our representative, which will not expire until Jan. 1st, 1905. Yours truly, The Atlas Oil Company, per A. E. Rob-lee, Secy. Diet, to S.” Thereupon, on behalf of the Atlas Oil Company, it was offered to prove that upon the execution of the lease, at the request of Sir. Rosewater, who was the agent of the plaintiff in the transaction, Mr. Eddy wrote the following letter to the Atlas Oil Company: ' “The Atlas Oil Co. Miners’ Lard and Lubricating. W. A. Eddy, General Western Sales Agent. 1308-10-12 Izard street. Phone, Douglas
2. The court instructed the jury: “For the purposes of this case you áre instructed that you are to consider as established that by reason of the use .of plaintiff’s premises by defendant, the Atlas Oil Company, that the Atlas Oil Company became indebted to the plaintiff in the sum of $400 as rent money. The theory of the defense of the Atlas Oil Company that is submitted to you is that Mr. Eddy assumed said debt of $400 and paid the same to the plaintiff by his promissory note for said amount, and that thereby the obligation of the Atlas Oil Company to pay said sum ceased.” This instruction is seriously complained of in the brief. It was indeed quite
The last part of the instruction presented to the jury the remaining issue that was in fact controverted by the parties. It was alleged in the answer that Mr. Eddy had paid the debt, and he testified that in payment of the balance due upon the lease he gave, to the company his promissory note and that the company received it in payment of the same. ITe also introduced in evidence the plaintiff’s receipts which upon their face showed that the rent had been paid' in full. The company’s agent denied that Mr. Eddy ever gave a promissory note to the company. He testified that there was a writing given by Mr. Eddy by Avhich he promised to pay the company the balance of the rent. That writing was produced and was received in
3. When the letter of March 30 from the company was presented in evidence it was objected to by the defendant. The foundation for the introduction of the letter in evidence was not very satisfactory. The signature thereto was not shoAvn to be that of the company’s secretary, nor was it shown that the letter was received in the regular course of mail in answer to a former letter of inquiry. The plaintiff’s agent, however, swore specifically that “it was a communication from the Atlas Oil Company”, one of the defendants in this case, and Avas received from him about or soon after this date, and that it was the original letter. While the objection to this evidence contained the statement that it was “irrelevant, incompetent and immaterial”, the whole objection taken together indicates that it was predicated wholly upon the supposition that the writing was not sufficiently connected with or identified by the contract of lease to make it relevant to the issue presented, and the brief of defendant discusses it wholly in that light. We do not think therefore that the irregularity in its introduction, if any, ought now to be considered important. No other matters are suggested and discussed in the brief, and we have found no errors requiring a reversal of the judgment.
The judgment of the district court is therefore
AFFIRMEBfe