88 Neb. 754 | Neb. | 1911
The plaintiff and defendant had occupied the premises in controversy as a partnership in the name of Keed & Knapp under a lease from the owner. In the year 1908, while so occupying the premises, owing to a disagreement between them, it was found that the partnership must be dissolved, and each of the parties attempted to procure from their landlord a lease of the premises. The plaintiff, having procured such lease executed to him individually,
It appears that for some time prior to the year 1906 the defendant had been engaged in the real estate, brokerage and insurance business, and had occupied the premises under a lease with the owner. About the 1st of December, 1907, the plaintiff and defendant formed a partnership in the firm name of Reed & Knapp to continue said business, and as such partnership they leased the premises in question for the term of one year from the 1st day of December, 1907. In the spring of 1908 their landlord agreed to repair the office room by putting a steel ceiling thereon, and to renew their lease for three years from the date at which it expired according to its terms. The plaintiff testifies that this Avas upon condition that the partnership should paint the ceiling, and that they did perform this condition at the expense of the partnership of $25. The defendant testifies that the painting of the ceiling was optional with the partnership, and that after it was put on the partnership did cause the ceiling to be ■painted at the expense of from $12 to $25. Soon after-wards disagreements arose between the parties, and before the termination of the lease it became apparent that a dissolution of the partnership was unavoidable. On the same day each of the parties applied to the landlord for a lease of the premises, and the plaintiff finally succeeded in obtaining such lease in his individual name. The landlord, knowing of the dissension between the parties and that each partner was desirous of obtaining the possession of the premises, proposed to execute a lease to the one who would pay the largest rental. The plaintiff offered a larger rental than had been contemplated in the promise for the renewal of the lease, and he'procured the lease in
1: It is first contended in the defendant’s brief that the action of forcible entry and detainer cannot be maintained unless the relation of landlord and tenant exists, and the case of Gies v. Storz Brewing Co., 75 Neb. 698, is cited in support of that proposition. The first paragraph of the syllabus in that case is: “To authorize an action for forcible entry and detainer, the relation of landlord and tenant must be established between the plaintiff and defendant at the time the action is instituted.” In that case the plaintiff was not the owner of the premises, and the question raised was whether the defendant was a tenant of the plaintiff or of the owner of the premises. It was recognized that that question must be determined as of the time when the action was begun, and the statement of
2. The controlling question in this case is as to the right of partners, upon the dissolution of a partnership, in the assets, privileges and good-will of the partnership business. The court instructed the jury to render a verdict for the plaintiff. If, therefore, there was evidence substantially conflicting upon a material issue, it must be considered that that issue is established by the evidence in favor of the defendant. For the purposes of this lease, then, we must consider that the partnership obtained the verbal agreement from the landlord to renew the lease for the further term of 'three years and to renew the ceiling, upon the condition that the partnership should pay a part of the expense of renewing the ceiling, and that the partnership complied with that condition at -the expense of $25. The right to the renewal of the lease then became a partnership right. It appears that this right was necessary to preserve the good-will of the business which is shown to have been valuable. The partners had concluded to dissolve the partnership, but they had not separated, and there had not been any agreement between them in regard to the terms of the dissolution and the
The defendant offered to prove that he established this business a good many years ago, and that in 1904 he employed the plaintiff, who had just finished his course in the law school, as clerk, and that later he gave the plaintiff a share of the profits of the business as compensation for his services, and still later took the plaintiff in partnership, giving him a third interest in the profits of the business, and, finally, formed a partnership with the plaintiff upon equal terms, and that during all of the time that the defendant had been in this business he had occupied the premises in question. This evidence, upon objection, Avas excluded by the court. In a proper action to try the rights of these parties, such evidence would appear to be material, but in this case it probably was unnecessary in view of the conditions shown by the evidence that was received. It appears that the rental of the premises had been continually $65 a month. The landlord was anxious to continue the tenancy upon those terms. He proposed a renewal of the lease for five years and for three years at that rental. There is no evidence that the use of the premises was worth more than that amount. The plaintiff, to procure this renewal of the lease, agreed with the landlord upon the rental of $1,000 a year, thereby paying a bonus of $220 for the first year to obtain this advantage. This is convincing evidence that the -lease and good-will of the business were of substantial value. It must be
What, then, was the effect of the action of this plaintiff in taking this lease in his own name? This is the controlling question in this Case, and we think that it is well settled by the authorities. The case of Mitchell v. Read, 61 N. Y. 123, was twice before the court of appeals of the state of New York, was thoroughly considered, and reviews many of the authorities. From this case it appears that there is but very little, if any, conflict in the authorities upon the general principle which must control in the case at bar. Upon its first appearance in that court it was said in the syllabus: “A lease so taken by one partner in his own name inures to the benefit of the firm, and the partner in whose name it is taken can be required to account to his copartners for its value. It is not material that the landlord would not have granted the new lease to the other partners or to the firm.” The parties were copartners in conducting a hotel in the city of New York, under several leases which by their terms expired May 1, 1871. The copartnership also by its terms expired at the same time. Before the term expired the defendant
When the case was in court the second time (84 N. Y. 556.), an additional point was stated in the syllabus, as follows: “The fact that a lease of premises, used by a firm for copartnership purposes, is to one of the copartners does not authorize him to take a renewal lease in his own name and for his own benefit; and a renewal will inure to the benefit of the firm.” The principal question determined upon this second appeal of the case was whether, in an action brought by the partners who had been deprived of the benefit of the lease by the action of their co-partner in taking a renewal lease in his own name, the plaintiff could recover the value of the good-will and leases as a part of the damages, and the court held that these were proper elements of damages in such an action. The
We will not extend this opinion to refer to more than one other case of the many cited justifying this conclusion of the court. In Johnson’s Appeal, 115 Pa. St. 129, the law is declared in the syllabus as follows: “A tenant’s right of renewal, although it may not be enforceable against the will of the landlord, is a property or asset, incident to an existing lease. When a lease is held by a partnership, the chance or opportunity of renewal is in itself a distinct asset of the partnership, in which all the partners have an interest. One partner in a firm cannot. therefore take a new lease, or a renewal of an existing one of the firm, in his own name, or for his own benefit, without being liable to account for it to the partnership. The dissolution of a partnership does not annul or change the relation of former partners in relation to the right of the renewal of a partnership lease. After the dissolution, the original leases remain partnership property, for the purpose of liquidation. The obligation of each partner to deal with them, not for his individual benefit, but for the common or joint interest, remains. Where, after the dissolution of a partnership, one of the partners secures for himself, without the permission of his copartner, a renewal of the premises in which the business of the partnership had been carried on, he will be compelled to account for the value of this renewal, in a settlement of the partnership business. If the parties fail to agree as to its value, it will be fixed by a master.” It follows, then, that this new lease which the plaintiff took for these premises inured to the benefit of the partnership. A lease and possession constitute an interest in real estate. This was an-
And, again, an action of forcible entry and detainer is a possessory action. The court must determine whether the plaintiff had the right to the possession of the premises and to exclude the defendant therefrom. In Dawson v. Dawson, 17 Neb. 671, which was an action of forcible entry and detainer, this court said: “To maintain that action the contest is limited to the naked right of possession of the premises. If the testimony shows that the defendant has an equitable interest in the premises, one that can be protected only by a court of equity, the action will not lie.” The rule is that a justice of the peace has no jurisdiction to adjudicate a right of possession that depends upon an equitable interest in the premises. This renewal lease being in equity the property of both parties, one party has as much right to possession as the other. A justice of the peace cannot partition the matter and assign the lease to either party; he cannot authorize a sale of the lease allowing these partners, if they desire, to bid at the sale as a court of equity might do, nor apply in any way the general principles of equity to an adjustment of the controversy between the parties. In all of the cases cited, the actions were in equity to settle the rights of the contending parties. It is doubtful whether a case ca-n be found where it was attempted to adjudicate such a question as was here presented in an action of forcible entry and detainer. The reason for this is plain. It is not necessary that a defendant should be able to establish by a preponderance of the evidence an equitable right to the possession of the premises in order to defeat the summary process of forcible entry and detainer, A justice of the peace cannot weigh and determine such evidence. It is sufficient if the defendant shows that he has in good faith an equitable claim of right of possession
The judgment of the district court is therefore reversed and the cause remanded.
Reversed.