69 W. Va. 94 | W. Va. | 1911
The Fairmont Brewing Company sued out this writ of error to review a judgment against it in an action of assumpsit for rent, alleged to be due the plaintiff Koen, under a written contract of lease of a certain room in the city of Mannington for saloon purposes. . ^
Befusal of the trial court to quash the summons-/for misde-scription therein of the action is the basis of the first assign
The declaration is subjected to criticism which might avail if a demurrer had been interposed, but we find none in the record. It contains the common counts, a special count on the contract and one on an account stated, all of which, except the last, are defective for omission to allege promises to pay the debts therein described. The conclusion negatives pajunent of all the several sums described and says the defendant did not regard “its said several promises and undertakings”, but this does not supply the omitted facts. It is a mere assumption of that which is non-existent. The count on the account stated, the only good one in the declaration, is wholly unsustained by proof, there being no evidence of an accounting or agreement upon any sum as one due and payable. The written contract, demising the room and stipulating for the rent, constituting the only evidence offered by the plaintiff, was clearly not admissible under that count. As all the others are defective, we have an inquiry as to whether the verdict has cured the defects under the operation of,the statute of jeofails, section 3 of chapter 134 of the Code of 1906. •
Good pleading requires direct and distinct statement of essential facts. Patton v. Elk River Co., 13 W. Va. 259; Burton v. Hansford, 10 W. Va. 470. In assumpsit, the promise is the gist of the action, and, therefore, an essential element or factor. 4 Minor’s Inst. 697. As the count for rent, the only one according in character with the evidence, contains no express allegation of a promise to pay the rent, it would have been bad on demurrer. The promise, if any at all, is not well pleaded, but the absence of a demurrer carries our inquiry further. We must say whether there is a defective count for rent due under an express contract, for, if there is, the statute cures the defect.
The next complaint stands upon the allowance of an amendment of the declaration at the trial and refusal of a continuance on the motion of the defendant. The count for rent stated a rental for one year. The contract, when offered in evidence, proved to be one for three years. Thereupon the court permitted the plaintiff to alter one of the dates by way of amendment. This the court had a clear right to do. Code (1906) chapter 131, section 8. But it is urged there was error in overruling the motion to continue, made on the allowance of the amendment. We do not think so. The right to a continuance as a matter of course, if requested, is asserted as an obiter diclwn in Travis v. Insurance Co., 28 W. Va. 593, but not decided, since the question did not arise in that case. There had been a continuance.. What was challenged was the right to amend at the trial so as to avoid a variance, and the affirmance of that right was the matter actually decided. The statute allowing such an amendment does not give an absolute right to continue on the allowance thereof. Fairly construed, its terms impliedly negative such right. It says “And if it be made to appear that
The sole defense was deprivation of the beneficial use, by the lessee, of the property. The lease demised and let the property from May 1, 1907, until May 1, 1910, “for the operation of a saloon therein, and for that purpose only.” It was so used during the first year and the rent paid. Before the expiration of that year, an election was held in the city to .determine by popular vote under a local option provision of the charter, whether any license for the sale of intoxicating liquor should be granted after May 1, 1908, at which an adverse majority was recorded. The lessee having refused to pay rent after May 1, 1908, on the assumption that the impossibility of using the property for the purpose for which it had been used, relieved from the agreement to pay the rent, this action was commenced to recover the rent from that date until Nov. 1, 1908, amounting to $450.00. Granting, for the purposes of the discussion, deprivation of the beneficial use of the property on the part of the lessee, illegality of the contract on the adoption of prohibition does not follow. As intoxicating liquors could be legally sold, when the agreement was entered into, it cannot be said to have been originally made for an illegal purpose. Nor can we assume the existence of intent to violate law in the event of the cessation of power to grant licenses. It is not a contract of or for sale of liquors. It is one to pay rent. If it became uneiiforcible, it did so, because the parties are deemed to have impliedly agreed that, in the event of loss of right to carry on the business, occasioned by acts or occurrences beyond their control, the obligation of the contract should cease or become voidable, under principles adverted to in Griffith v. Boom & Lumber Co., 55 W. Va. 604. Whether the contract becomes wholly void or only
Inability of the lessee to make beneficial use of the property could have conferred nothing more than an option to avoid the contract by a surrender of the lease or abandonment of the property. If it claimed such right and attempted to avail itself thereof, the evidence does not show it. Continuance of possession of the propertjr, which is presumed in the absence of anything indicating the contrary, prior possession on the part of the lessee being admitted,’ carried with it the obligation to pay the rent. The lessee could not take the benefit of the contract and repudiate its burden.
We are of the opinion, therefore, that the intermediate court did not err in refusing an instruction to find for the defendant, if the jury believed it was deprived of the use of the property
This conclusion relieves us from inquiry as to whether the contract prcqierly construed, restricted the lessee to a particular use of the property, -whether the beneficial use thereof under the contract was wholly or substantially destroyed by inability to obtain a license to sell intoxicating liquors, and whether such inability, occasioned in the manner indicated, rendered the contract voidable. Upon all these questions, the authorities are conflicting. See Burgett v. Loeb, 88 N. E. 346; Houston &c. Co v. Keenan, 99 Tex. 79; Brewing Ass’n v. Brent, 39 Tex. Civ: App. 443; O’Byrne v. Henley, 50 So. 83; Kerley v. Mayer, 31 N. Y. Supp. 818; Hooper v. Mueller, 123 N. W. 24; American Mer. Ex. v. Blunt, 102 Me. 128, 10 L. R. A. (N. S.) 414 and notes; Heart v. Brewing Co., 113 S. W. 364.
Seeing no error in the judgment, we affirm it.
Affirmed.