285 P.2d 1093 | Kan. | 1955
The opinion of the court was delivered by
This was an action for damages of a punitive nature alleged to have resulted from the wrongful cancellation of a lease.
On June 4, 1952, Terry L. Haddock and Emmett P. Cain, hereinafter called plaintiffs or referred to individually, filed a petition in the district court of Shawnee County against David Keller and Norma Keller, his wife, hereinafter referred to as defendants or Keller. His wife was made a party simply because she had signed the lease. In this petition plaintiffs gave their residence as Burlington, Coffey County, Kansas. The petition alleged that about August 15, 1951, Haddock resigned his employment with the Maytag Company of Newton, Iowa, for the purpose of opening a retail appliance store with the plaintiff Cain as a partner; that about September 15,
That on November 10, 1951, plaintiffs delivered to defendant Keller a check which check was accepted as the rent payment for November; that about November 17, the check was returned to plaintiffs in a letter addressed to them and signed by defendants’ attorney; that during the period from November 1 to November 17, while plaintiffs were in possession under the lease, the defendants, or persons unknown to plaintiffs, acting under their direction removed the locks from the entrances to the leased premises and installed new locks thereon and thereby deprived plaintiffs of the possession and enjoyment of the premises; that plaintiffs made numerous demands for repossession of the premises but defendants at all times refused; that plaintiffs leased the premises and paid the rent thereon for the purpose of establishing a retail appliance store; that they had been promised a franchise by the Maytag Company of Newton, Iowa, giving them the right to receive a quota of merchandise from that company, except said promise of the Maytag Company was conditioned upon the •plaintiffs having their retail store located on the premises described in the lease and in no other location. That defendants were notified by plaintiffs of the investment in time and money in preparation of opening their store. The petition then set out certain items of expense alleged to have been caused by the acts of defendants. The prayer was for judgment for $5,027.50.
The defendants’ answer admitted the making of the lease substantially as alleged by plaintiffs but alleged their negotiations were
It was further alleged that about November 9, after the agreement with plaintiffs to the cancellation of the lease and after defendants had leased the building to the Miller Drug Company, relying upon the statements and agreements of plaintiffs, plaintiffs came to the residence of defendants and asked defendants to give them another 24 hours in which to procure new financial backing for their proposed business. That the defendant Keller stated to plaintiffs that he had already leased the building to the Miller Drug Company and could not enter into additional agreements with plaintiffs. That about November 10, plaintiffs came to defendant Keller’s office again and insisted that defendants let them have the building but Keller again informed plaintiffs the building was leased to the Miller Drug Company and that if the Dawson Realty Com
To this answer plaintiffs filed a reply consisting of a general denial and a specific denial of the paragraphs in the answer which set up defendants’ defense.
The case went to trial on March 8, 1954, with the result that the jury found for the plaintiffs in the sum of $3,027.50, and answered special questions.
Defendants’ motion to set aside answers to certain of the special questions as not being supported by the evidence, and for judgment for defendants upon the answers to the other special questions was overruled, as was their motion for a new trial. The defendants have appealed.
In this court the principal question argued is whether, under the facts shown by the evidence, defendants’ motion to strike answers to certain questions and for judgment on the others should have been sustained.
As pertaining to this question, the special questions and answers are as follows:
“1. Did the defendants deprive plaintiffs of possession of the leased premises by causing the locks on all entrances to the building to be changed? Answer. Yes.
“2. Did the plaintiffs, at any time, while they had possession of the leased premises, offer to cancel their lease and surrender possession of the premises? Answer. Yes.
“3. If you answer question number two in the affirmative, state whether the offer was oral or written? Answer. Oral.
“4. If you answer question two in the affirmative state whether the offer was accepted by defendants before it was revoked or withdrawn by plaintiffs. Answer. No.”
Number 5 not pertinent here.
“6. After the lease, dated September 30, 1951, was entered into between plaintiffs and defendants, did plaintiff Cain, about November 1, 1951, advise*303 defendant David Keller that plaintiffs could not carry out the terms of the lease and request Keller to release plaintiffs from the obligations of the lease and procure another tenant? Answer. Yes.
“7. Did defendant David Keller consent to the cancellation of the lease and procure another tenant at plaintiffs’ request? Answer. No.
“8. Did plaintiffs spend any money in preparing the room they had leased for their occupancy between September 15th 1951 and November 1, 1951? Answer. No.”
Number 9 not answered.
“10. Did plaintiffs ever procure a franchise from the Maytag Company to sell Maytag products in the room leased from defendants? Answer. No, but it is apparent that they could procure franchise.”
Defendants filed a motion to set aside the answers to special questions Nos. 4, 5, 7 and 10 for the reason that the answers were contrary to the evidence and not supported by the evidence, and to render judgment for defendants on the answers to questions Nos. 2, 6, 8, 9 and 10. This motion was denied. We think it should have been allowed.
Question No. 4 inquired whether the offer mentioned in question No. 2 was accepted by defendants before it was revoked or withdrawn by the plaintiffs. The jury’s answer was no. The evidence respecting that matter may be summarized as follows: The last week in October both of the plaintiffs saw Mr. Keller and told him in substance that the man whom they had relied upon to furnish the money to finance the business had declined to do so and they might have to give up the lease; that they would tell him definitely about that on November 1, which was the date the next lease payment was due. On that day Cain called Keller and told him they had not been able to make any other financial arrangements and that they would surrender the lease and keys. Keller told him to bring them to his place at his convenience. When Cain and Haddock had talked with Keller in the latter part of October Keller spoke of a Mr. Blaylock, who had a drugstore down in the business part of the city, who might want to rent it. On November 1, Cain called him and told him they would surrender the lease and keys; they talked again about Mr. Blaylock and Cain suggested that Keller see him and ask him if he would care to lease it. Keller did contact Mr. Blaylock who looked at the property on November 2; thought the room too small for the fixtures he planned to use, and said he wouldn’t take it. Keller called Cain that same evening and reported that fact to him, and also placed the property in the hands
We think the jury’s answer to question No. 5 should have been stricken because it followed an erroneous instruction of the court as to the measure of damages. Plaintiffs had requested an instruction in substance to this effect: That if the jury found the terms of the lease to be fair and reasonable rental value of the property (there is no contention it was not) that plaintiffs in any event could recover only nominal damages of $1. plus any necessary expense incurred by plaintiffs and within the contemplation of the parties in preparing the leased premises for the use of the plaintiffs. (In answer to question No. 8 the jury found they had spent nothing in getting the place ready for occupancy.) The court refused to give the requested instruction but gave one much more liberal to plaintiffs, which the jury followed in its answer to question No. 5. We shall not reverse the case for this reason, however, for if the motion
The answer to question No. 7 should have been stricken for very much the same reason given in our discussion of question No. 4. But, more than that, the evidence distinctly discloses that at the time of plaintiffs’ talk with defendant in the latter part of October Mr. Blaylock was spoken of as the man who might care to lease the property and when Cain talked with Keller on November 1, Keller was asked to contact Blaylock to see if he would lease it, which Keller did, and when Blaylock declined to lease the property Keller placed it in the hands of W. T. Dawson and Company to get a tenant for him. So, it is clear from the evidence that Keller was willing to have plaintiffs surrender the lease if they could not get another financial backer. It must be remembered plaintiffs had signed a written contract to pay the rent for three years. Legally speaking, Keller could have insisted upon those payments. His offer to cancel the lease if he could get another tenant was favorable to plaintiffs rather than otherwise.
The jury’s answer to question No. 10 was fully answered by the word “no.” The remainder of the answer should have been stricken as being surplusage. More than that, it is inaccurate as further discussion will disclose.
The facts leading up to the execution of the lease between plaintiffs and defendants may be summarized as follows: The Maytag Company of Newton, Iowa, manufacturers of washers and other household appliances, sells to local retail dealers throughout the country to whom it has issued franchises. It has a general sales manager in Newton, branch managers in various states, and regional managers over certain specific territories. In 1951, and for several years prior thereto, Mr. Ernest F. Philpy was regional manager of the Maytag Company for an area of 22 counties in northeastern Kansas, including Shawnee. A part of his business was to select one or more retail dealers in each city of his territory who, in his judgment, would make good retail dealers for the Maytag products, make inquiry into their location, financial status, and other matters that would determine their fitness for an exclusive franchise for the sale of Maytag products in that locality. The company had issued two franchises in Topeka; one to Ed Marling, who had two large stores, one in the 600 block on Kansas Avenue and the other in North Topeka, and the other to Jones-Mack, Inc., who had a large
The answers to the other special questions clearly show that defendants should have judgment. The answer to the first question, not discussed here by either party, was a finding of what any landlord would do when changing tenants.
This was not an action brought to force the continuance of plaintiffs’ lease; indeed, perhaps the best thing that happened to plaintiffs was to be able to surrender the lease rather than to have to continue payments of rental for three years. This action was one brought more than six months after the lease was tenninated, for damages which really arose from plaintiffs’ lack of getting financial help to start and maintain a business. Keller was not responsible
The result is that the judgment of the trial court should be reversed, with directions to sustain defendants’ motion to strike the answers of the jury to questions Nos. 4, 5, 7, and the surplusage in the answer to question No. 10, and to render judgment for defendants upon the answers to the other special questions notwithstanding the general verdict. It is so ordered.