174 Iowa 103 | Iowa | 1916
From the somewhat lengthy statements of the facts by both parties, and from the record, it appears that on October 5, 1906, and for some time prior thereto, F. M. Hubbell & Son (Inc.) owned the store rooms before mentioned, including the cellar under the north 100 feet of Rooms 614 and 616, and F. E. Goodwin and F. J. Goggins were using and occupying the premises as lessees of the Hubbells under a lease dated August 22, 1906, which ran until October 1, 1908. The Hubbells leased to Goodwin and Goggins the
‘ ‘ The within lease is hereby assigned by Buck Auto Car*107 riage & Implement Company, lessee, to Leslie H. Tietge from and after April 1, 1910, and the said Leslie H. Tietge hereby accepts said assignment and agrees to pay the rental therein agreed to be paid as the same becomes due to the lessor hereof.”
(Signed by the plaintiff, by its president, and by the defendant.)
The second instrument just referred to is a collateral agreement, whereby defendant agreed to store certain automobiles and other property for certain periods free of charge; and the third a bill of sale signed by the plaintiff alone, by which plaintiff, in consideration of $2,000 paid by the defendant, sold to the defendant substantially all the personal property owned by it in connection with its garage.
It is the contention of plaintiff that the possession of the restaurant room was reserved, but without the right or power to sublet the same, and without the payment of rent therefor, and they claim that the assignment should be reformed so as to except from the operation thereof the restaurant room in the northwest corner.
It should be also stated, if it has not already been done, that indorsed upon the renewal lease before referred to was an assignment by Goodwin and Goggins to the plaintiff of all right, title and interest in the same from and after November 1,1907. In addition to paying the rent- of $138.33 per month, plaintiff paid a bonus of $10 per month for 18 months to the original lessees. After the deal between plaintiff and defendant, April 1, 1910, defendant took possession of the personal property so purchased by it, and also took possession of all the demised premises except the restaurant room. Possession of the restaurant room was continued by the original lessees, free of rent, and without the right to sell or sublet. Plaintiff continued the automobile business from November 1, 1907, to April 1, 1910, during which period it paid the rent of $138.33 per month to Iiubbell. The original lessees continued in possession of the restaurant room free of rent, and when the
The first and second interviews between Mr. Buck, president of plaintiff company, and the defendant, when negotiating for the purchase by defendant of the automobile business, were held in the garage part of the premises, which, as stated, was separate and distinct from the restaurant room. During the negotiations, defendant was shown generally over the premises that were occupied by plaintiff. Mr. Buck testifies that it was mentioned that it would be a nice thing if the restaurant room belonged to the rest of the premises, because there was no light in that part of the store, there being no windows there. Defendant testifies that during the negotiations they did not do anything in the restaurant corner; that there was no part of the automobile business in the restaurant, and they did not go in there at all; that Buck told him they wanted to sell; that the automobile business was not paying, and he wanted to get rid of it. It would seem that, if defendant is correct in his present contention that he was to receive possession of the restaurant corner, he should have included that in the inspection of the premises. There is evidence, also, that, during negotiations at the garage, Mr. Buck reserved the restaurant, and that defendant consented thereto. Mr. Buck testifies that he told defendant, during the negotiations for the sale of the lease and the property, that the restaurant room had always been an eyesore to them, but that they could not get hold of it unless Goodwin sold out, and in that ease, according to the agreement they had with
“The restaurant room was partitioned off from the remainder of the space, and the party running the restaurant was in possession doing business as a restaurant, both upon my first visit and upon my second visit there. I had no interview with the man running the restaurant before. April 1st, nor before I closed up with Mr. Buck, to see what rent he was paying. I agreed to pay rent on the whole place. I knew I did not get the restaurant, because it was partitioned off, and the people were in there. Although knowing that I did not get the restaurant, and also that I agreed to pay the full rent, I made no inquiry as to how much they were paying. I supposed he was paying his proportion of the rent, but never asked him what he was paying; I do not remember whether I paid the first payment of rent under the lease, to Mr. Hub-bell or to Mr. Buck. I think I paid my first payment of rent about the first of April, 1910. It was after the first of May before I went to see the restaurant man. I waited over a month after I had paid the rent for the restaurant man before I went and asked him how much he was to pay. I did not go to him when I made the April payment, to see how much I was going to get back, simply because I did not think anything about it. I paid the May rent about the 15th of May. That was the second month’s rent I paid for the restaurant man, and then I went to him and learned that he claimed he had no rent*111 to pay. I knew from tbe start that I was not going to occupy the restaurant room. I knew in May I was not going to get any rent for the restaurant room, but I did not notify Mr. Buck until the 6th of June. In the meantime, I had received from the plaintiff the whole of this original invoice, $499,64.
When I made my deal with Buck, I understood that the restaurant man was leasing from Hubbell. I thought he was, and I distinctly understood that I would not get it. I used this language in a letter, ‘After looking over the lease carefully, which you turned over to me, I find that it calls for 612, 614 and 616, Mulberry, and nowhere does it mention the lunch room.’ I used that language because there should have been some exception made in the lease. The fact is that in the meantime I had discovered there was no exception in the assignment of the lease to me, and because there was no such exception, I stood upon the letter of the assignment, although I knew I was not to get that corner.”
Another circumstance having a bearing is that defendant took possession April 1, 1910. Thereafter, and down to June 23, 1910, and after he had been informed that the restaurant people were not to pay rent, he purchased, from time to time, merchandise from the plaintiff, to the extent of $499.64. He claims to have discovered the mistake or wrong that he claims Buck perpetrated upon him, about the middle of May, 1910. Thereafter, though corresponding frequently with plaintiff, he makes no mention thereof until the letter of June 6, 1910. From this it appears that he did not become inquisitive until someone asked him who owned the restaurant, and then he learned that the restaurant people were not renting from Hubbell. He then calls attention to the fact that the lease calls for the whole of the three rooms. He then says that since plaintiff had turned the lease over to him, plaintiff-should see that he have full possession at once. In this he does not claim that he understood at the time of the negotiations that he was to have possession of the restaurant, but makes his demand for possession because the lease and plain
Plaintiff offered in evidence a contract between plaintiff and Goodwin & Goggins, and it is said by appellant that such contract and the evidence in connection therewith should be disregarded, and they say that the trial court acted upon such testimony. The case was in equity, and we have no means of knowing whether the trial court did act upon it or not. But, without discussing this feature of the case, we are satisfied from evidence other than the contract that the evidence is sufficient to sustain the decree.
We conclude, therefore, that the judgment and decree of the trial court was right, and it is affirmed on both appeals.— Affirmed.