54 So. 831 | La. | 1911
Statement of the Case.
Plaintiff sues the defendant firm and Robert S. and Theodore Mandel, its members, for $2,611.25, balance alleged to be due as rent of certain premises in Shreveport under a lease running from January 1, 1907, to December 31, 1910, and for $171, alleged to be due for beer, and $40 for whisky. Robert and Theodore Mandel answered separately, but to the same effect.
The defenses relied on in this court and which are set up in the alternative are that the premises were leased for barroom purposes, and that the lease ceased to be operative, because, by a vote of the people, the sale of liquor was prohibited in Caddo parish after January 1, 1909; that during said month a fire occurred which rendered said premises uninhabitable, and authorized the cancellation of said lease; that plaintiff consented that the lease should be canceled, and entered into a new contract, whereby it leased said premises by the month to Theodore Mandel, and that Robert Mandel, to its knowledge, withdrew from the firm and the business, and was not a party to said new contract; that the judgment of the district court is erroneous, in that it condemns defendants in solido and was made executory at once for the whole amount due and to-become due under the lease, whereas defendants, in any event, should only have been condemned jointly, and the judgment made ex-ecutory in accordance with the terms of the lease. The lease itself does not specify the purpose for which the premises were to be used, and as a matter of fact portions of the building were either used or rented by defendants for restaurant and boarding house purposes. The building, worth about $5,000. was damaged by the fire to' the extent of $200, and was repaired within 16 days, and an allowance of $5 a day or a total of $80 was made and accepted for deprivation of its use during that time. Whilst the repairs were going on an interview took place between Frank Pugh and J. F. Cunningham (representatives for certain purposes of the plaintiff) and the two Mandéis, at which the latter, or perhaps Theodore Mandel, requested a reduction in the rent, and was told by Cunningham that no change could be made-in the lease, but that the company would reduce the price of beer by $1 per keg, and that such reduction would amount or would be equivalent to- a reduction of the rent; and thereafter the rent ($150 per month) was paid as called for by the lease up to, and inclusive of, the month of September. It appears that Robert Mandel quit the-business at the expiration of the year 1908, and he testifies that he notified Pugh that the firm had been dissolved; and it may be that he did and that as between him and his-brother the business was thereafter conducted by the latter, and that he (Theodore) bought the beer and paid the rent; but for all that the testimony fails to show that either Pugh or Cunningham (for the lessor) ever agreed to release him from his obligation as lessee, or ever agreed to make any change in the lease, though it does show affirmatively that neither of them was author
The judge a quo gave judgment for plaintiff on April 9, 1910, executory at once fox the whole amount of the rent, condemning the defendants in solido, and against Theodore Mandel for $211, as the amount due by him for beer and whisky.
Opinion.
It is therefore ordered, adjudged, and decreed that the judgment appealed from be-amended by reducing the item of $211 for which Theodore Mandel is separately condemned to $192.25, and as amended affirmed,, plaintiff to pay the costs of the appeal.