5 S.D. 561 | S.D. | 1894
This is an action to recover rent alleged to be due from appellant, as lessor, to respondent, as lessee. From a judgment in favor of respondent, and from an order overruling a motion for. a new trial, appellant brings this appeal. The facts seem to be as follows: On July 13, 1888, appellant leased from one Isaac Emerson a part of the building known as the ‘ ‘Emerson Block, ’ ’ in the city of Sioux Falls, for a term ending May 1, 1890, at the monthly rental of $25 per month. Under the lease with Isaac Emerson, appellant occupied the demised premises as a telegraph office, and continued such occupation during the term of the lease. After the expiration of the lease with Emerson, on May 1, 1890, appellant continued in possession of the premises, and-for the following two months paid to Emerson rent at the rate of $25 per month. Some time prior to July 1, 1890, respondent became the owner of the Emerson block, and came into possession of the property upon July 1, 1890. Upon July 1, 1890, respondent went to the office of appellant, in Sioux Falls, and signed a renewal of the Emerson lease for one year. This renewal was indorsed upon the back of the Emerson lease, and had been executed by the vice president and secretary of appellant in New York City, under date of May 19, 1890. Subsequently, and upon the same day that he signed the renewal, or upon the next day thereafter, respondent' went a second time to the office of appellant, and inquired of the then manager of appellant whether he had yet forwarded the lease to the officers of appellant. The manager replied that he had not yet forwarded it, and respondent then requested to be allowed to erase his name from the renewal, upon the ground that the adjoining office was rented at a larger amount than appellant had been paying, and that appellant should pay $35 per month, instead of $25, as, under the Emerson lease, it had previously paid. Appellant’s manager consented to allow respondent to erase his name from the renewal, and, after respondent’s signature had been so erased, gave respondent
This statement of facts, conceded or plainly proved beyond contest, should be qualified by saying that appellant claims that the evidence does not show an executed verbal lease, but simply an agreement for a written lease, to be subsequently executed, and that, such lease never having been executed, it never became operative, but the transaction remained an unexecuted verbal agreement for a lease, We think there is no question as to the legal effect of the evidence,. The testimony
Neither do we think the further contention of appellant tenable that, if the agreement constituted a lease, it was a lease from month to month. Appellant’s argument is that respondent’s letter to appellant saying. “Shall therefore require $35 per month if you occupy the premises longer,” was a proposition to rent by the month at that rate, and that appellant simply accepted the proposition on condition that respondent would make the repairs. While the letter itself does not suggest a renting for a year, it did not deprive the parties of the power to subsequently make such term and terms as they could agree upon. No one can read the testimony of respondent and not understand from it that, if any lease at all was made, it was for a year. His evidence was explicit, unambiguous, and undisputed that appellant’s manager agreed, if respondent would make certain repairs, which he then and there assented to and proceeded at once to make, appellant would take the premises for one year, at $35 per month. No other term than one year was talked about.
It is next contended by appellant that it is not shown that appellant’s local manager or agent had authority to make the lease. The following facts are in evidence: The local agent gave respondent the address of the superintendent, and suggested that, if he insisted upon an increase of rent, he should write to him. He did so. Shortly after, the agent advised respondent that he had heard from the company, and that, if certain repairs were made, they would take the premises for a year. If he was not authorized to say this, it did not bind the appellant; but, from first to last, his authority in fact has not been denied by appellant. If he did not have it, a word from appellant would have proved it. All the circumstances go strongly to show he was authorized. The silence of appellant upon such question of authority or want of authority, conclusive evidence upon which was peculiarly in its possession, goes
We do not think that, upon the record presented, there was any question for the jury, but, if there was, it would seem that appellant waived it. It moved the court to direct a verdict in its favor. This was a concession that'there was'no question in the case but one of law, which it was the duty of the court to decide. The court adopted the very theory which’ appellant asked it to adopt, and took the case from the jury. That it decided the law question adversely to it ought not to put appellant in position to now assert, as against the ground and theory of his motion, and without any request to have the case submitted to the jury, that there was a question of fact for the jury, and that it was error for the court to grant its motion, and decide the case as a question of law only. In Barnes v. Perine, 12 N. Y. 18, the facts as to this question were similar to those here presented. There the defendant moved the court to direct a verdict in its favor. It overruled the motion, but directed a verdict for plaintiff. In answer to appellant’s claim on appeal that the case should have been submitted to the jury, the court says: “But having treated the question as purely legal, and acquiesced in the disposal of them by the court as such, he cannot now be heard to object that facts were involved which should have been decided by the jury.” See, also, Winchell v. Hicks, 18 N. Y. 565; Leggett v. Hyde, 58 N. Y. 275. We think appellant presents no sufficient reason for a reversal of this judgment, and it is affirmed. All the judges concur.