35 Neb. 766 | Neb. | 1892
This is an action somewhat in the nature of a bill of peace. It is alleged, in substance, in the petition that William Haynes is the assignee of a lease made between
The lease provides that the lessor or assigns should keep the premises in repair; and that on the expiration of the lease and before surrender of possession the lessor should purchase and pay for all furniture, fixtures, and pictures put in the premises by the lessee; and in the event of a dispute as to the value thereof the lease provided for the selection of arbitrators to determine such value. The exact words of this provision are as follows:
“Upon the expiration of this lease, and before the surrender of the possession of said premises by said parties of the second part, said party of the first part shall purchase and pay for all the furniture, pictures, and fixtures, put into said premises by parties of the second part. If said parties cannot agree upon price of said furniture, then party of the first part shall select one man and the parties of the second part shall select one man, and the men chosen shall select a third, and said three men shall act as arbitrators, and determine the price of said furniture, pictures, and
The value of this property is alleged in the petition at $28,000. The petition alleges failure to repair, after repeated demands for making such repairs; that plaintiff had made repairs to the value of $14.88; that other repairs were then needed; and that plaintiff was damaged by failure of lessors to make the same to the amount of $500; that on or about July 20, 1890, he offered to pay rent for ■the month ending July 20, less the amount so paid for repairs, and was informed by Moore, trustee, that a Mr. Marsh, whose business it was to look after repairs, was absent from the city, and requested the plaintiff to wait until his return. On the 20th day of August he called again •on Moore, tendered and offered to pay $400 more, being rent due for the month ending August 20, 1890, when he was informed by the trustee that he had been instructed to receive no more rent from the plaintiff. u
The petition further alleges that Marsh not having returned to the city, and that plaintiff being in doubt as to ■his legal rights in the premises, then tendered to said Moore $800, being rent in full for the months ending July 20 and August 20, 1890, which was also refused. Notice •to quit was served upon the plaintiff on the same day, signed by the defendants by their attorney.
The petition also alleges that no demand was made on the plaintiff for any rent at any time; that no offer was •ever made to pay for the property in the hotel according to the terms of the lease, nor any offer to arbitrate as to the
The petition also alleges a conspiracy on the part of the Union Investment Company and Moore to injure the plaintiff in his financial reputation and standing ; that the suit was instituted for the sole purpose of harassing and •annoying the plaintiff; and alleging that the plaintiff had no adequate remedy at law in the premises; that if the suit in the county court was allowed to proceed it would result in the prosecution of numerous suits to ascertain the value of the property in the hotel, to ascertain the amount of plaintiff’s damage in the premises from defendants’ failure to repair, and value of repairs already made, and praying a temporary order of injunction; and that in the event the plaintiff’s right to the possession had been forfeited, that the value of the furniture, fixtures, and pictures might be ascertained by the court, and the defendants compelled to pay for the same before possession should be surrendered by the plaintiff; that his damages by reason of the failure to make the repairs might be ascertained and defendants compelled to pay the same; that he might also recover cost and value of all repairs made by him, and that on the final hearing the suit in the county court might be forever enjoined; and praying for general relief.
A general demurrer was sustained to the petition in the court below, and the plaintiff not desiring to amend, the action was dismissed.
In Hopkins v. Gilman, supra, Gilman, although known to be a man of great wealth, was not permitted to recover possession of the premises until he had paid for the improvements which, on the termination of the lease, he had agreed to pay for. The same rule applies where the lessor agrees to purchase and pay for the furniture, fixtures, etc., of the lessee. This is a part of the contract which, in order to justify ejectment, must be fulfilled on the part of the lessor. In the last case cited from Wisconsin it was held that a court of equity will protect the lessee in possession of the property until he is paid for the value of the improvements. So in the case at bar, equity will protect the lessee in possession until the property which the defendant agreed to purchase is paid for.
It is alleged in the petition that no demand for rent has been made, and this is admitted, for the purpose of the action, by the demurrer. Such demand is necessary in order to predicate forfeiture on the failure to pay. Under the decisions of this court a demand may be made by a notice to quit. (Hendrickson v. Beeson, 21 Neb., 61.) If this is a sufficient demand it is probable that a tender of payment at that time would defeat a recovery.
It is claimed that a court of equity has no jurisdiction. In our view this position is untenable. Many other questions are in dispute beside the mere naked right to pos
Reversed and remanded. .
