132 Minn. 189 | Minn. | 1916
The action is one for damages against lessors for refusing to fulfil an agreement to give tlieir written consent to a lessee’s assignment of a lease. Verdict for plaintiff, and defendants appeal from the order denying their motion in the alternative for judgment notwithstanding the verdict or a new trial.
We think the evidence justified the jury in concluding that, before the trade between plaintiff and Valentine was consummated, defendants indicated such assent thereto that plaintiff could rightfully rely thereon. It is probably true that the testimony does not show an express agreement to consent in writing to an assignment of the lease, but that was not necessary in order to give plaintiff the right to be regarded as assignee. The covenant was for the lessors’ benefit and could be waived by them. The jury were justified in finding a waiver as to plaintiff of the lessors’ written consent to the transfer. Aldrich v. Shoe Mart Co. 108 Minn. 15, 131 N. W. 422.
The doubtful question in the case is whether eviction has been proven. It is undisputed that plaintiff obtained the key to the premises and took possession. He then had considerable property in the building which he has suffered to remain ever since. There is evidence of an attachment several months after plaintiff took possession and that a padlock was placed on the door of the building, but no testimony to the effect that the padlock was placed there at the instance of the lessors. No doubt, proof of constructive eviction would have been sufficiently established, had plaintiff acted upon the notice of July 1, and vacated, removing his property. But he did not. By retaining the key and letting his property remain in the building plaintiff kept possession. In Boreel v. Lawton, 90 N. Y. 293, 43 Am. Rep. 170, the court says: “But we know of no case sustaining the doctrine that there can be a constructive eviction, without a surrender of the possession.” “The propositions that there can be retention of demised premises, and an eviction, are logically and legally contradictory.” Mortimer v. Brunner, 19 N. Y. Sup. Ct. (6 Bosw.) 653. In New State Brewing Assn. v. Miller, 43 Okla. 183, 141 Pac. 1175, it was held that the constructive eviction did not occur until the date upon which the tenant surrendered possession. 3 McAdam, Landlord & Tenant, p. 1385, states: “But where the eviction is constructive merely, it is' no eviction in law unless followed by a complete abandonment of possession by the tenant.” To the same effect are Cohen v. Conrad, 110 Minn. 207, 124
This disposes of the appeal, and other errors assigned need not be considered. Judgment cannot be ordered notwithstanding the verdict, for the record docs not show that a motion for a directed verdict was made at the close of the testimony. Sayer v. Harris Produce Co. 84 Minn. 216, 87 N. W. 617.
Order reversed and a new trial granted.