8 Kan. App. 421 | Kan. Ct. App. | 1898
The opinion of the court was delivered by
Under his first assignment of error, the plaintiff has not complied with the rule of this
Under the second assignment of error, plaintiff contends that there was sufficient evidence to go to the jury upon the contention that there was a forfeiture and determination of the lease by a reentry for nonpayment of rent. It is well settled that no forfeiture can be declared for non-payment of rent without a demand therefor, and it is admitted that no such demand was made. There was an attempt to reenter, but it was without lawful authority and resulted in nothing. The supreme court decided, in Kellogg v. Lewis, 28 Kan. 535, that a justice has no equitable jurisdiction or power and can only determine the rights of parties as they appear at law, and that the jurisdiction of the district court on appeal is the same as that of the justice, the title to the premises not being in dispute ; hence, the district court has no jurisdiction to decree a forfeiture in such a case.
The next contention is that there was sufficient evidence to go to the jury on the claim that there was an election on the part of the defendants not to avail themselves of the extensions provided for in the lease. It is not put squarely on this ground by counsel, but this is the legal effect of the contention. It is doubtless the law that such election may be exercised before the last day of the term expressed in the lease. There was evidence that ought to have been submitted to the jury that the defendants had elected to terminate the lease on the 1st day of August, or rather not to take advantage of the extension provided for. There was evidence tending to show that the plaintiff had relied on this election, to the knowl
Because of this exclusion of evidence, the judgment of the district court must be reversed, with instructions to award to the plaintiff a new trial.