150 P. 121 | Okla. | 1915
Defendant in error brought suit in the district court of Tillman county against plaintiff in error First National Bank of Frederick to recover the sum of $500, alleged to have been deposited with the bank. The bank answered, admitting that it held the money, and that it claimed no interest therein, but was holding as trustee in pursuance of a contract with plaintiff in error Hargrove, and asked that Hargrove be interpleaded, which was done, *486 and the case was tried, the burden of proof being fixed on plaintiff in error Hargrove, and at the close of her evidence a demurrer thereto was sustained, and judgment rendered in favor of defendant in error against both plaintiffs in error for $500, from which judgment this appeal is brought.
The plaintiffs in error present their reasons for reversal under two propositions: (1) That the court erred in sustaining the demurrer to the evidence, and (2) for the exclusion of evidence offered by plaintiffs in error.
Under the first proposition it is urged that the demurrer should have been in writing, and should have set out the deficiencies in the evidence wherein it failed to show a cause of action or defense. Counsel cite a number of authorities from other states in the Union which hold, under the practice prevailing in those states, that a demurrer should be in writing, and should set out in detail the evidence, and they cite a number of other cases where, from a reading of the opinion, it appears that the demurrer was in writing, and in some of the cases set out the evidence in detail, as it is urged should be done in this case. The record does not show whether the demurrer was in writing or not, but, assuming that it was not written out by counsel, it was dictated to the court reporter, and by him included in his notes of the trial, and was afterwards, evidently at the request of counsel, transcribed and made a part of the case-made. This is in accordance with a custom that has prevailed in this state to such an extent that it is well nigh uniform; and certainly, in the absence of any specific request that same be reduced to writing, and exceptions reserved to a failure to so require, there can be no prejudice to plaintiffs in error from this cause. The record fails to show that any objection was made to the demurrer on the ground that same was not in writing, or any exceptions saved for failure to reduce *487 same to writing, and therefore this objection, if it be well taken, was waived.
Section 5002, Rev. Laws 1910, provides:
"3. The party on whom rests the burden of the issues must first produce his evidence; after he has closed his evidence the adverse party may interpose and file a demurrer thereto, upon the ground that no cause of action or defense is proved. * * *"
From this statute it will be seen that the demurrer may be interposed on the ground that no cause of action or defense was proved, and the demurrer in this case is in the exact language of the statute, and upon this point we think is sufficient.
This, then, brings us to the question whether the evidence was sufficient to take the case to the jury. Where the evidence as a whole, with all of the inferences that can properly be drawn therefrom, would not support a judgment in favor of the party offering it, a demurrer should be sustained thereto.Pringey v. Guss,
It is true that after premises are wrongfully abandoned by the tenant the landlord may take possession of the premises for the protection and preservation thereof, in which case his measure of damages would be the agreed rental as fixed by the terms of the contract; or he may let the premises stand vacant, and in that event would be entitled to collect the rent according to the terms of the lease; or he may give notice to the tenant of his refusal to accept a surrender, when such notice can be given, and sublet the premises for the unexpired term for the benefit of the tenant to reduce the damages.Higgins v. Street,
If, however, upon a surrender of the leased premises by the tenant the landlord re-enters and takes unqualified possession of the demised premises, and deals with them in a way wholly inconsistent with the continuance of an already existing and unexpired term, there is a surrender by operation of law. 2 McAdam, L. T. 1283; 1 Woodfall, L. T. 302; 24 Cyc. 1367; 2 Wood, L. T. 1173; Rice v. Dudley,
It is not necessary to effect a surrender by operation of law that the parties enter into a formal express agreement to that effect, but this intention may be inferred from their conduct (24 Cyc. 1373; White v. Berry,
The testimony of plaintiff in error herself showing conclusively that she had entered upon the premises and taken unqualified possession thereof and reopened the hotel, was conducting the same in her own name and for her own benefit, the law will construe her acts and determine her intention therefrom, and hold her to the effect of her conduct, which amounted to a termination of the lease and an acceptance of the surrender of possession.
The stipulation in the lease which required the deposit of $500 in the bank was, in effect, the requirement of a penalty for non-performance, and if said sum be claimed by plaintiff in error Hargrove as a penalty for breach of the terms of the lease contract, her claim cannot be maintained, for the reason that said stipulation would be void under section 974, Rev. Laws 1910; and, if it be claimed as damages for breach of the contract, then same could not be recovered, because prohibited by section 975, Rev. Laws 1910, which provides that every contract by which the amount of damages to be paid or the compensation to be made for breach of an obligation is determined in anticipation thereof is to that extent void, except as expressly provided in the next section, and this case does not come within that section. We have already seen that the true measure of damages would be the rent agreed upon for the premises, which by the contract was fixed at $137 per month, and, plaintiff in error having accepted a surrender of the lease by her conduct, her right to this rent terminated as of the date she re-entered and took possession and opened the hotel on her own account.
Certain questions were asked and objections sustained thereto, and it is urged that this case should be reversed for this reason. The record does not show what the answer of the witness would have been, nor does it show what counsel expected to prove by said witness, but, judging from the questions, the purpose of the inquiry was to elicit information as to whether the hotel had been conducted *491
by plaintiff in error Hargrove at a profit or a loss to her. Where the record does not show what the answer of the witness would have been or what counsel expected to prove, we are unable to determine whether the evidence would have been admissible, because we cannot say whether the hotel was conducted at a loss, and, if so, what loss. Offutt v. Wagoner,
In any event, under our view of the case, this evidence would have been irrelevant to any issue, for the reason that, when plaintiff in error Hargrove took possession of the hotel and conducted same in her own name, thereby terminating the lease, she was not entitled to recover damages thereafter, and therefore her evidence would have been irrelevant, and the action of the court in excluding the same was proper.
The judgment of the court below is, therefore, affirmed.
All the Justices concur, except BROWN, J., absent and not participating. *492
