40 Neb. 722 | Neb. | 1894
This action was brought by plaintiff in error to recover rent alleged to be due upon a written lease made by him to the defendants in error. The petition alleges, substantially, that on the 10th day of .March, 1889, plaintiff, by a lease in writing, demised and let to the defendants certain premises in the city of Omaha, known as the “Omaha Stables,” and situate on lot 5, block 149, of the said city, for the term of one year from said date, for which said lessees agreed to pay as rent the sum of $195 per month, payable upon the first day of each month during the' term; that defendants entered into possession of the said premises on the date of said lease and have paid the stipulated rents .until the 1st day of July, 1889, but of the sums becoming due since said date no part has been paid, except there was received on the date last aforesaid $150, a like sum on the 1st day of August, and $150 on September the 1st. The defendant Gustave B. Hengen did not answer, but made default. The defendant Norman H. Brown, for his sep
The judgment cannot stand as to the defendant Hengen, since he confessed the averments to the petition by failing to answer, and allowing his default to be entered. (Hardy v. Miller, 11 Neb., 391.) Besides, plaintiff read on the trial the deposition of Hengen, which established every material allegation of the petition, and the liability of not ■only Hengen, but that of his co-defendant Brown. Under the pleadings, as well as by Hengen’s own positive testimony admitting his liability, plaintiff was entitled to a verdict against him. The evidence adduced on the trial was conflicting. That given on behalf of the defendant Brown tended to establish the defense set up in his answer, namely, that the lease described in the petition was surrendered and canceled about the first of July, 1889, and that defendants were released from all liability for rent under
“ 3. The jury are instructed that if you believe from the evidence that plaintiff, at the time he-made‘a contract of sale of the premises in controversy, knew that defendants were also selling their livery business to the same party, and that said party so purchasing afterwards paid the rent, or any part thereof, to said Bouscaren, which rent was accepted by him as coming from said party, knowing he was in possession of said premises, such acts would release the defendants.”
Undoubtedly it was competent for Bouscaren, by an express agreement, or by his acts, to have released Brown and
It cannot be successfully maintained that Bouscaren assented to the surrender of the premises by plaintiffs in error by agreeing to sell the barn to Walker. As previously stated, this contract was not absolute, but conditional. It was expressly stipulated in the contract that the title to the stable or barn should remain in the plaintiff until the consideration was paid in full. The purchase price was
Reversed and remanded.