176 Ind. 321 | Ind. | 1911
Action by appellant against appellee for rent due under a written lease. The questions presented arise upon exceptions to the conclusions of law upon the facts found.
The material facts are that on November 19, 1906, appellant leased to appellee, through one Gabriel, its agent, the premises described in the lease, for the term of three years from January 1, 1907, at $25 a month, with an option for two additional years, upon giving notice of its intention thirty days before the expiration of the term. The first story of the building was to be occupied for a saloon, and the second story for a residence, and for no other purpose. The building was located in the town of Albion, Noble county, Indiana. The lessee was a Michigan corporation, organized to manufacture and sell beer and other malt liquors, and had an agent in Auburn, Indiana, to sell and distribute its products in northern Indiana. Certain changes and repairs were to be made by the lessor, which he made. A clause in the lease provided that if at any time a majority of the
At the time of the execution of the contract, one Gabriel, appellee’s agent, had made arrangements with one Hayes, whereby appellee was to furnish the building for Hayes to use as a saloon. At the December term, 1906, Hayes was to apply for a license to sell intoxicating liquors and to conduct a saloon in the lower story of the building, and was to occupy the upper story as a residence, there being an. implied agreement between Gabriel and Hayes that Hayes should buy defendant’s beer at wholesale, and retail it in the saloon. There was no other consideration between the defendant and Hayes for defendant’s renting and fitting up the building for said purpose.
Defendant, by its said agent, did furnish the building for the use of Hayes. Hayes was unable to procure a license, but at the February, 1907, session of said board of commissioners he procured one Hostetter to make application for license to retail intoxicating liquors in the building.
A remonstrance for canse, alleging the moral unfitness of Hostetter to receive a license, was filed against him, the trial of the remonstrance and application was decided in his favor, and he was granted a license to retail intoxicating liquors in the building for one year from February 5, 1907. Hostetter paid the license fee of $100, gave the necessary bond, to the approval of the auditor of Noble county, Indiana, procured a license, and began and continued to retail liquors at said place until April 25,1907. After Hostetter had procured the license, and begun selling, and within ten days from the time the license was granted, the remonstrators perfected an appeal to the Noble Circuit Court. The next term of said court,
March 1, 1907, a general remonstrance was filed with the auditor of Noble county against granting license to retail intoxicating liquors in Albion township where the premises are situate, three days before the regular March, 1907, session of the Board of Commissioners of the County of Noble, and a like remonstrance was filed July 5, 1907.
In April, 1907, the agent, Gabriel, notified plaintiff that he would surrender the lease and the premises, and would remove the furniture, and that plaintiff could secure a new tenant. On June 24, 1907, Gabriel removed the furniture
Plaintiff did not take possession of, nor assume control over, the building until after February 5, 1908. No rent was paid by defendant after July 1, 1907. Under the contract, the rental value of said building and premises from July 1, 1907, to February 5, 1908, was $179.16, which is unpaid by defendant. The water and light rentals for the premises for the time, which were not paid by defendant, were $12.26, making a total of $191.42. The form of the contract was prepared by plaintiff and submitted to Gabriel, who had it typewritten in duplicate, with a few minor changes therein, but no material changes were made by him.
The court concluded that plaintiff is not entitled to recover any amount, and that defendant is entitled to recover its costs.
The briefs show that the court’s conclusions were based upon two propositions: (1) That the contract was ultra vires and (2) that the lease terminated with the vacation of TIostetter’s license by the appeal, with the protection afforded him under the statute until the expiration of the March term of the Dekalb Circuit Court. Appellant’s contention is that the contract was executed, and hence no question of its being ultra vires is present, that the lease could only be terminated, as to an existing license, by the operation of a general remonstrance, that Hostetter’s license was defeated because he was an unfit person, and that while the lease contemplated its termination in ease no person would be allowed to renew an existing license, it did not contemplate its termination simply because! an unfit person was denied license, that it contemplated that only fit persons would apply for license.
Hostetter was granted a license on February 5, 1907. The first general remonstrance was filed on March 1, 1907, and the second on July 5, 1907. The appeal of the remonstrators vacated the license, with no protection to Hostetter, after March 30, 1907. State v. Sopher (1901), 157 Ind. 360.
In view of our conclusions, it is unnecessary to consider