279 N.W. 194 | Neb. | 1938
This action was begun in the district court for Lancaster county by Frank B. Kimball and Jennie R. Kimball, plaintiffs, against J. H. Cooper, Lincoln Theatre Corporation, a corporation, Paramount-Publix Corporation, a corporation, and A. M. Avery, defendants, to recover damages al
The pleadings and evidence disclose that at all times material to this case plaintiffs owned the real estate in which a theater known as “The Rialto” was operated on O street in Lincoln, Nebraska. On January 31, 1920, the plaintiffs, who then were and prior thereto had been operating said theater, leased the same to Princess Amusément Company for the period of time from February 1, 1920, to February 1, 1935. On June 27, 1921, a new lease for such premises was entered into. By this second lease the prior lease of January 31, 1920, was abrogated and the premises leased to Princess Amusement Company from July 1, 1921, to February 1, 1935. The Princess Amusement Company operated the theater under this second lease until January 17, 1925, when such lease, with the written consent of the plaintiffs, was assigned to the defendant Lincoln Theatre Corporation. This last-named defendant operated the theater under this second lease until some time about
To determine the issues presented it becomes necessary to construe the written contract under which the Lincoln Theatre Corporation, hereinafter called appellant, held the real estate and equipment involved herein. The circumstances surrounding the plaintiffs and Princess Amusement Company at the time of the execution of this contract and the provisions of the written contract itself are not in dispute. None of the acts of the parties to the contract or of the appellant in connection therewith or.with the subject-matter thereof that aid in making an interpretation of such contract is in dispute. When the provisions of a
Omitting the parts thereof that either do not aid in a construction of the provisions that bear upon the issues involved or do not tend toward a different construction than that made by us, the contract is as follows:
“By this indenture witnesseth:
“Whereas, the lease heretofore existing between the parties hereto did not express the contract thereof and did not properly specify the property belonging to the Princess Amusement Company, and
“Whereas, it is desired that the errors be corrected and the dispute as to the property rights and terms be settled and determined,
“Now therefore, in consideration of their mutual promises, of the settlement of such dispute, of the fully setting out of their contract, and of the payments as herein specified, this indenture is made this 27th day of June, 1921, by and between F. B. Kimball and Jennie R. Kimball of Lincoln, Nebraska, parties of the first part, and Princess Amusement Company, * * * party of the second part, and thereby be it
“Witnessed: That said parties of the first part, hereinafter designated as the lessors, joint owners in fee of the property hereinafter described, in consideration of the covenants of the party of the second part, herein set forth, do by these presents lease and demise to said party of the second part, hereinafter designated as the lessee, the following described property, situated in the city of Lincoln, Lancaster county, state of Nebraska, to wit:
“Lot 14, Block 63, S. W. Little’s Subdivision of Lot 30, of the original plat of Lincoln, Nebraska, otherwise known as 1500 0 street, together with all and singular the appurtenances thereunto belonging.
“For the considerations as above set out, and the leasing and demise of said premises, it is further agreed by and between said parties as follows: * * *
“2. That said lease heretofore existing and being under date of January 31st, 1920, shall, from the first day of July, 1921, be abrogated and this lease and agreement be substituted therefor. * * *
“4. That all the equipment (except the fire curtain, together with the heating, lighting, and ventilating systems, existing in said building upon the date thereof, with fans- and other equipment used in connection therewith which it is agreed belong to lessors) including, among other things,, the seats, carpets, fans, furniture, lamps, signs, machinery,, fixtures, pipe organ, musical instruments, pictures, decorations, fixtures and theater and stage equipment of every kind, used in the operation or use of the Rialto Theater is the property of party of the second part and the same, or that with which it is replaced, shall be, and the same is. hereby given as security for the fully performing by party of the second part of the covenants by it hereby to be performed, but .may be removed at any time, provided same is replaced by that which is as good, or better, and the building restored, and upon the expiration of this lease, may, if the covenants thereof have been fully performed, be removed upon condition that the building be restored.
“5. That party of the second part may install in said
“8. That the lessee will carry insurance against loss by fire and tornado, covering all furnishing and equipment of every kind in said theater, in a sum sufficient to replace said furnishings and equipment in as good condition as they existed prior to the fire or tornado, and in any event, no less than $20,000 fire insurance, and $20,000 tornado insurance. * * *
“10. That the lessee will * * * be responsible for and at its own expense keep in repair all plumbing, water pipes, gas pipes, steam pipes, radiators, electric wiring, and sewerage or other fixtures, including plate glass, and window glass, and that said lessee will not suffer or allow any damage to any of the equipment, building or other improvements belonging to said premises. * * *
“12. That, subject to the provisions of paragraph numbered 1 hereof, upon a failure to make payments of rent as herein agreed, or upon the violation or nonfulfilment of any of the covenants of this lease, said lessors may, at their election, either distrain for said rent due and damages sustained, or declare this lease at an end, and recover possession, as if said property together with the furnishings and equipment were held by forcible detainer, the said lessee hereby waiving any notice of such election, or any demand for the possession of said equipment and premises. * * *
“These presents are executed in duplicate as aforesaid.”
The evidence shows without dispute that at the time of the execution of the second lease on June 27, 1921, the plaintiffs were the owners of all the equipment in the theater. The value of such equipment was upwards of fifteen to twenty thousand dollars. The theater business was of such a nature that it was necessary to constantly add new innovations and methods in such business, and in doing so to exchange old equipment for more modern equip
We deem it unnecessary under the view herein taken of the issues involved to determine many assignments of error made by appellant. Questions of whether certain parts of the equipment involved were fixtures and certain parts not fixtures become immaterial. We deem it unnecessary to make any application of the rule relating to the right of a tenant after forfeiture and reentry by the landlord to remove fixtures. See Stevens v. Burnham, 62 Neb. 672, 87 N. W. 546. The trial court submitted the counterclaim of the appellant upon the issue of whether or not the appellant had abandoned the equipment involved, and in doing so gave instruction No. 12. The appellant assigns the giving of this instruction as error. It has been held by this court that error in the giving of an instruction
We have examined all assignments of error made by appellant and find no error prejudicial to its rights.
The plaintiffs have perfected a cross-appeal. By their cross-appeal plaintiffs complain of the action of the trial court in refusing to submit to the jury the question of whether or not appellant had converted a pipe organ, various sets of furniture and scenery which had been delivered to the original lessee and never returned to the plaintiffs. By instructions Nos. 7 and 8 the trial court limited the plaintiffs to recovery for damages to the real estate caused by destruction of brick and plaster in removing the pipe organ, and damages to the heating plant, radiators and electric wiring. Such damages the jury fixed at $2,050. True the plaintiff’s petition sets forth a copy of the second lease and a copy of the assignment to appellant. Nowhere does such petition mention any damages arising from an inability to rent the premises for the unexpired term of the lease for as large a rental as appellant had paid prior to a breach of the lease. Had appellant complied with the terms of the lease, it would have been the owner and entitled to remove from the theater at the expiration of the lease all items of property that plaintiffs now allege it converted. Furthermore, plaintiffs’ petition pleads and the lease provides that appellant could rightfully dispose of and remove from the theater during the term of the lease all articles that plaintiffs now allege it converted. The lease bound the appellant to replace any equipment removed. Is not a failure to do so a breach of covenant and not a conversion? A study of the plaintiffs’ amended petition will disclose that it pleads a cause of action only for waste upon the real estate, as it pleads the appellant’s
The plaintiffs do not seriously contend and could not successfully maintain a contention to the effect that any judgment should be rendered against defendants other than the Lincoln Theatre Corporation. Aside from a determination of the amount of damages for waste, the verdict rendered by the jury is the only verdict that could be supported under the pleadings and the evidence. The evidence would support other amounts than $2,050 for waste, but of this amount no complaint is made.
For reasons above stated, the judgment of the trial court is
Affirmed.