145 Ind. 51 | Ind. | 1896
— The appellant owned a building in the city of Elkhart, a part of which he leased to the appellee for hotel purposes, with the privileges of conducting a saloon in one of the basement rooms. At the same time one Kaskel occupied, as appellant’s tenant, one of three storerooms on the first floor of
Appellee’s demurrer to this amended complaint was overruled and an exception was reserved. Issue was formed, and upon the trial the court entered its finding as follows: “Come now the parties,and the court,after hearing the evidence adduced and the arguments of counsel, and being well and sufficiently advised in the premises, now finds for the plaintiff, that the material allegations of his complaint are true and proven; that he is entitled to a perpetual injunction against the defendant, Wilbur R. Cushman, restraining him from removing or interfering with the furniture described in the complaint, to-wit: shelving, partition,' flooring, and counter, in room formerly occupied by Mike Kaskel, as described in the complaint, and also from conducting or operating a saloon for sale of intoxicating liquors at retail in quantities less than a quart at a time, to be drank on the premises, in said room, prior to the building of an extension to said room by plaintiff. And the defendant now moves the court in arrest of judgment.”
The court sustained the motion in arrest of judgment, and dismissed the cause. This action of the trial court is assigned as error, and the action in overruling appellee’s demurrer to amended complaint is assigned as cross-error.
Counsel for the appellee make no defense of the court’s action in dismissing the appellant’s suit, and we are at a loss to know how it can be sustained. Conceding the insufficiency of the complaint, against the demurrer and upon motion in arrest of judgment, the right to amend and proceed, further could not be denied. Upon the theory that the complaint alleges a letting of the room by the appellant to the appellee,
Nor is it true that the allegations disclose a written lease of the room, either to Kaskel or to Cushman. The presumption, therefore, would be that the letting was by parol, and it would not be necessary, as counsel insist, that a copy should be made a part of the complaint.
Counsel are in error also in the position that the complaint alleged only an opinion as to the necessity for removing counters, shelving, partitions, floors, and the plumbing, and that no threat of the appellee to remove them was alleged. ■ It was expressly alleged that it would be necessary to remove them, “all of which the defendant now threatens to do.” The appellee’s threat to remove them, for the purposes of the allegation in question, would be quite sufficient without an allegation as to the necessity therefor.
It is probably true, as counsel urge, that it is a. right of a tenant to use leased premises for any lawful purpose, not forbidden by the expressed or necessarily implied construction of the lease. Gear Landl. and Ten., section 97, p. 296; Reed et al. v. Lewis et al. 74 Ind. 433. This proposition, however, has application only to the possible theory of the complaint, denying the right to use the room for the sale of intoxicating liquors, and not to the theory that the appellee was about to commit waste in the removal of counters, shelving, partition, plumbing, and floors. The latter theory is all that
The judgment is reversed, upon the error of the trial court in dismissing the appellant’s suit, with instructions to reinstate the suit and to sustain the appellee's demurrer to the complaint, with leave to amend and for further proceedings.