57 P.2d 595 | Okla. | 1936
The defendant Mrs. H.B. Kyle owned a tract of farm land. On November 15, 1933, she executed a written agricultural lease thereof to L.E. Massey. Massey was to have possession on January 1, 1934, and the lease was to expire on January 1, 1935, unless extended for a period of one year under provisions contained in the lease which are unnecessary to discuss, due to the fact that the lease could not be construed as being for a period of time in excess of two years. Massey did not demand possession on January 1, 1934, but on January 18, 1934, assigned the lease to his father, who is the plaintiff in this case. Plaintiff was unable to obtain possession from Mrs. H.B. Kyle, the owner, and he thereafter recovered a verdict and judgment against her and her husband for damages by reason of that fact. There are several meritorious contentions made by defendants, but it is necessary to consider but one of the propositions.
In appealing, the defendants bring to our attention section 10906, O. S. 1931, reading:
"No tenant for a term not exceeding two years, or at will, or by sufferance, shall assign or transfer his term or interest, or any part thereof, to another, without the written assent of the landlord or person holding under him."
The evidence does not reveal that the defendants gave written assent to the assignment. Plaintiff does not contend that there was any such written assent, but prevailed in the trial court upon the theory that the defendants waived the required written assent. On this question there was considerable evidence. The plaintiff testified that subsequent to the assignment he went to a drug store operated by the defendant William Kyle, husband of the other defendant, that the said William Kyle was acting as the agent of his wife, and there orally promised plaintiff that when the defendants should succeed in dispossessing a tenant by the name of Drew, who was then occupying the place, it would be satisfactory for plaintiff to enter and take possession. The plaintiff testified that William Kyle made such statements to him on several occasions. The plaintiff's testimony, however, is wholly devoid of any statement that the husband ever unconditionally promised plaintiff possession of the place, or recognized the validity of the assignment. In every instance referred to in plaintiff's testimony it appears that the question of his anticipated possession of the premises was expressly hinged upon the contingency of ousting the tenant then in possession. It appears that a lawsuit was at that time pending between the Kyles and that tenant, Drew, and that this fact was brought to plaintiff's attention on every occasion when he conversed with Kyle. The lawsuit which was pending at that time was won by the tenant, Drew, and it was only by compromise and settlement of the differences between Drew and the Kyles, subsequent to Drew's victory in that lawsuit, that the defendants induced him to leave the premises. By that time the defendants had "investigated" the plaintiff, and refused him permission to farm the land. Neither he nor his son ever occupied the farm.
The foregoing statement of facts is the narrative thereof which would be most favorable to the plaintiff. We assume that they are the facts, and that the jury ignored or disbelieved the testimony of the defendants and others to the effect that no promise or assent of any kind, conditional or otherwise, was ever made to plaintiff.
The sufficiency of the evidence on the question of waiver is ordinarily left to the determination of the jury. But in cases where the facts relating to the question are admitted, the question of whether there was a waiver no longer remains a question of fact but becomes a question of law. Smith v. Minneapolis Threshing Machine Co.,
"Waiver" has been defined as a voluntary and intentional relinquishment or abandonment of a known existing legal right. Smith v. Minneapolis Threshing Machine Co., supra; Liverpool, etc., Ins. Co. v. T. M. Richardson Lmbr. Co.,
It is to be expected that under circumstances similar to those involved herein the parties would radically differ as to the nature of the oral agreement. In the absence of some evidence of that which would really constitute a waiver, it should not be held that the statute is inapplicable. For that reason we deem it our duty to be guided by the statute law. The judgment is reversed and the cause remanded, with directions to enter judgment for the defendants.
McNEILL, C. J., OSBORN, V. C. J., and RILEY, BUSBY, WELCH, CORN, and GIBSON, JJ., concur. BAYLESS, J., absent.