58 So. 63 | Ala. Ct. App. | 1911
The following is a summary of the allegations of count 9 of the complaint, as amended:
There is an assumption on the part of the defendant in the grounds of demurrer assigned, and in the argument of counsel made in support of them, that the plaintiff’s right to recover on either of those counts must rest upon what is alleged to have occurred between the defendant and the tenant, who' surrendered possession to it, and much stress is laid upon the claim that the averments do not show that the effect of t-he transaction between the tenant and the defendant was to impose upon the latter, in favor of the plaintiff, the obligations which the rental contract imposed upon the tenant. To indulge such an assumption, it is necessary to ignore material features of the state of facts set out. It is patent" from the plaintiff’s averments that her claim upon the defendant may be rested, not alone upon the transaction with the tenant who had been in possession, as claimed to have the effect of creating a privity of estate-without a privity of contract between the plaintiff and the defendant (Bonetti v. Treat, 14 L. R. A. 151, note), but also upon a contract entered into by the defendant directly with the plaintiff, and possession by the defendant under that contract. The real ground of the liability asserted is that the defendant itself entered into a contract with the plaintiff which had the effect, upon its superseding the former tenant under an arrange
In the case of Morgan v. McCollister, 110 Ala. 319, 20 South. 54, the facts were that McCollister, who was a tenant in possession under a written lease for 20 years, made a parol sale of the remainder of his term to one Morgan, surrendered possession to him, and told-Moses, his landlord, that thereafter he must look to Morgan for the rent, and thereupon Moses made a new lease of the premises to Morgan. The court held that the acts of McCollister in making the parol sale of his lease and consenting to the landlord’s accepting Morgan as his tenant constituted a surrender by McCollister of his lease, and terminated his interest in the leased premises. This was a plain recognition of the right of an original tenant under a written lease, by acts resting in parol, to extinguish his intex’est under the lease, without any written or formal assignxnent of it.
Differences between that, case and the present one are that in that case a new lease was made to the person who acquired possession from the original tenant, while in this case the landlord consented to a continuance of the old lease, upon the assumption by the party in whose favor the possession was surrendered of the obligations of the tenant who had been holding under the lease; and that in that case the former tenant notified the landlord to look thereafter to the party in possession for the rent, while here the termination of the former tenant’s interest under the lease was evidenced by
This case involves .no question as to the effect of the'acts set forth in the complaint upon any claim of the landlord against the tenant who relinquished the possession. The averments of the count showing that the defendant agreed with the plaintiff, the lessor, to assume the lease and pay the rent, and that it has had the possession and enjoyment of the premises pursuant to that agreement, it is in no position in this, suit by the lessor to raise a question as to whether the'former tenant made an effectual assignment of the lease to it. It is liable under the averments of the count, because, by contract with the plaintiff, it assumed the obligations of a tenant under the lease, and has enjoyed the benefits
The demurrers to the two special pleas interposed to the counts for use and occupation were properly sustained. Those pleas merely negative the passing of the interest of the original lessee by an assignment of the lease, and do not show that that interest had not otherwise been terminated, as it might have been, for instance, as the result of a surrender, or that it was still .outstanding. Besides, if the defendant was entitled to any benefit from the matter set up in those special pleas, it could have been availed of under the general issue.
What has been said in considering the demurrers to counts 9 and 10 sufficiently indicate the grounds of the court’s opinion that there was no error in sustaining the demurrers to the special pleas interposed to those counts.
The only, ground stated in the objection made by the defendant to a question asked the witness Marx in reference to a trade between the defendant and the Shindler Saloon Company was “that the witness had said he was not there, but had heard about it.” The bill of ex
The evidence sought to be excluded by the objection to the question to the witness Wilson, as to what Mr. Trousdale said, was not admitted, as the witness did not testify to anything said by Mr. Trousdale. The evidence called for by the question not having been elicited by it, the defendant could not have been prejudiced by the overruling of the objection to the question. It is assigned as error that the court erred in overruling defendant’s motion to exclude the answer of the witness Wilson to the question just mentioned. The bill of exceptions does not show that such a motion was made. Following the answer of the witness is the statement, “Thereupon the defendant moved to exclude the answer of the defendant as a mere conclusion,” etc. We cannot, with the possible result of putting the trial court in error in respect of its ruling in this connection, presume that the motion was to exclude the answer of the Avitness, when the statement of the bill of exceptions is not to this effect.
It is the rule, recognized in this state, that, in the construction of written contracts, the situation and circumstances of the parties may be looked to, when necessary, to aid in arriving at the meaning of what they have written.—Strouse v. Elting, 110 Ala. 132, 20 South. 123; White v. Breen, 106 Ala. 159, 19 South. 59, 32 L. R. A. 127. Applying that rule, the effect, if any, upon the defendant of its name being signed upon the back of the rent notes by a person who at the time was its agent, certainly for some purposes, of the indorsement made by the plaintiff on the lease at the instance
No provision of the statute of frauds can affect the validity of a contract of tenancy which is made binding upon the party, not only by his accepting and acting upon the written consent of the landlord to the existence of the tenancy upon stated terms (Nelson v. Shelby Manufacturing & Improvement Co., 96 Ala. 515, 525, 11 South. 695, 38 Am. St. Rep. 116; Chambers et al. v. Alabama Iron Co., 67 Ala. 353), but also by the written admission of the tenant, Avhile in possession of the rented premises, that he holds them under the lease referred to by the landlord in consenting to accept the defendant as the tenant under that lease.
In view of the circumstances attending the indorsement by the defendant’s agent in its name of rent notes made by another, when that act was ratified and adopted by the defendant, as there was evidence tending to show was the fact, it may be given effect as constituting the defendant a maker of the notes, and binding it
The conclusion is that there was evidence to support each of the four counts upon which the case went to the jury, and that there was no error in the refusal of written charges requested by the defendant, or in the giving of written charges requested by the plaintiff.
By consent, the plaintiff has made a cross-assignment of errors. From the conclusion of the court that there was evidence to sustain the averments of counts 9 and 10 of the complaint, as amended, and to show that the defendant was substituted as the tenant under the lease formerly held by the Shindler Saloon Company, and became bound by all the provisions and obligations of that lease, it follows- that the trial court was in error in giving written charge 3, requested by the defendant, to the effect that the plaintiff would not be entitled to recover attorney’s fees in the case; the payment of a reasonable attorney’s fee in the event of the nonpayment of a rent note at maturity being an obligation which, there was evidence tending to prove, was assumed by the defendant.
On the appeal in chief, we find no error. On the cross-assignment of error by the plaintiff below, the judgment must be reversed.
Reversed on plaintiff’s assignment of error, and remanded.