21 S.D. 194 | S.D. | 1907
Whether appellants have stated facts sufficient to constitute a cause of action against respondent Treber is the only question presented by this appeal from a judgment entered in his favor on sustaining a general demurrer to the following complaint: “(i) That on or about April 5, 1901, they leased in writing unto the defendants Thomas Riley and John W. Ryan lot three (3), in block fourteen (14), in the city of Deadwood, 'for the term of three years, with privilege of two years additional, from and after the first day of July, A. D. 1901/ at the monthly rental of one hundred and fifty dollars ($150.00), to be paid monthly in advance on the first day of each and every month, commencing July 1, 1901, which rental the defendants Riley and Ryan agreed to pay therefor. (2) That thereupon, and before the delivery of said lease the defendant John Treber executed and signed the following agreement upon the back of said lease, to-wit:, 'In consideration of $1.00 in hand paid me, receipt of which is acknowledged, I guarantee payment of within rent promptly at times it shall become due during term of within lease. Dated April 5th, 1901,’ (3) That thereupon possession of said premises was delivered to the said lessees, who have remained in the possession thereof ever since; that at the expiration of three years from the execution of said lease, the said lessees, Ryan and Riley, exercised their privilege of two years’ additional time thereon, and remained in the possession of said premises without any new or different agreement or lease with these plaintiffs than the one heretofore set out, and that said lessees are still occupying the said premises under said lease of April 5, 1901. (4) That the said lessees, Riley and Ryan, have paid the rental of said premises stipulated for in said lease up to the 20th day of September, A. D. 1904, and no more, and that there is now due and owing from the said lessees and from the defendant John Treber the rent for said premises since the date last named, September 20, 1904, at the rate of one hundred and fifty dollars ($150.00).”
The language employed by the contracting parties, aided by the presumption that they intended to> avoid absurd consequences, renders unavailable the contention of counsel for respondent that, according to the terms of the lease, the occupancy of the tenants
It being thus demonstrated that the lessees were not holding over within the meaning of the statute herein quoted, but were legally occupying the premises under their lease, and by virtue of the iac-t that the term prescribed therein and for which respondent became liable for the payment of rent had not expired, there is no escape from the conclusion that the complaint states facts sufficient to constitute a cause of action against him; and the judgment appealed from is reversed.