26 Minn. 318 | Minn. | 1879
Moore, owning and being in possession of certain premises, demised the same, by lease under seal, for the term of one year from September 7,1871, to the firm of Howard & Carpenter, composed of John R. Howard and Ira M. Carpenter. Thereupon the firm went into possession, and performed all the covenants and conditions to be performed on their part. Pursuant to one of its provisions, the lease was renewed for .an additional term of four years, and under
At the time of the execution of the lease, there was a two-story building upon the demised premises, the. second story of ■which was used as- a tin-shop, access to which was had by an •outside flight of stairs, upon the demised premises, and on the south side of the building. This flight of stairs furnished “the only public means of access to the tin-shop. In addition to the site of the building mentioned, the lease demised-another portion of the lot upon which the building was situated, which portion was well adapted as a place of deposit for bulky goods, ■such as agricultural machinery. In the latter part of September, 1875, the plaintiff entered upon this portion of the lot, and during October following removed the stairs, and there ■erected a building which he has ever since occupied as a bank. At the same time, .plaintiff put up a flight of stairs at the rear of the building, so as to afford access to the second story and to the tin-shop, and subsequently, at the request Of one of the defendants, cut a doorway in the rear part of the first story of the building, and put in a door, so as to afford the lessees more convenient access to the stairs which he had erected.
Previous t'o plaintiff’s entry upon the above-mentioned portion of lot 7, he informed Howard (of the firm of Howard & Carpenter) of his desire to make such entry, and to make the ■erection and improvements aforesaid, promising Howard that if he would consent to the same, he would obtain for him ■another lot' upon which to store and deposit goods or agricultural machinery, in ease he desired him to ,do so. Howard made no objection then or at any other time to plaintiff’s acts ■or proceedings in the matter, but permitted him to go on with his entry and improvements, and, by his (Howard’s) conduct, led the plaintiff to believe that it was entirely satisfactory to him . - '
Upon the state of facts summarized above, the court below found as conclusions of law: First, that the acts and conduct-of the lessees were equivalent to consent to the plaintiff’s entry and improvements aforesaid; second, that the plaintiff was. entitled to judgment against the defendants for rent, according to the terms of the lease, at the rate of $50 per month, for the six months between March 7 and September 7, 1876, with interest.
We have no doubt of the correctness of these conclusions. The first, however, does not go as far as the findings of fact would have justified the court in going, nor as far as it ought to go. We are of opinion that the facts found by the court make out a case of a surrender to the plaintiff, by operation of law, of that part of the demised premises entered upon and occupied by him as aforesaid. The case appears to us fully to fall within the doctrine laid down by Baron Parke in Lyon v. Reed, 13 Mees. & Wels. 285, a case cited and applied by
Now it is found, in effect, that the plaintiff’s entry upon, and occupation and improvement of, the before-mentioned portion of the demised premises, was with the knowledge and assent of the then lessees, Howard & Carpenter. The plaintiff could not lawfully have made the entry and improvements, or have gone into and continued the occupation, if, as respected the portion so entered upon and occupied, the leasehold estate continued to exist. The validity of the plaintiff’s entry and occupation the lessees were, therefore, estopped to dispute. The plaintiff acted and made expenditures upon the basis of the assent of the lessees, and to permit them to repudiate their assent would prejudice the plaintiff, and work a fraud upon him. See Pence v. Arbuckle, 22 Minn. 417.
As respects the then lessees, Howard & Carpenter, we think the facts found clearly show a surrender of that portion of the demised premises entered upon by the plaintiff. Howard was one of the firm of Howard & Carpenter, and, through the
It is further claimed by the defendants that the plaintiff is not entitled to recover the entire rent reserved, because they are deprived of the enjoyment of a portion of the demised premises. If it were found that, on account of this deprivation, talcing' all the accompanying facts and the circumstances into consideration, the value of the use of the demised premises was impaired, it is possible that this point might present some difficulty. But it is not so found, and there is, therefore, no ground upon which the rent can be reduced.
It is urged that the court below erred in not distinctly and specifically finding upon the question, whether and how much the rental value of the demised premises was diminished by the deprivation spoken of. The answer to this is that, if the finding was defective in these respects, the court below should have been moved to perfect it. ■ Otherwise, any such objection to it is taken as waived. These are all the points which appear to us to require special consideration, and the result is that the judgment is affirmed.