17 Ind. App. 585 | Ind. Ct. App. | 1897
Lead Opinion
This cause was transferred to this c-ourt by the Supreme Court.
Appellant sued appellee to recover certain rent alleged to be due for the use of a store building. The appellee answered in seven paragraphs; the first was a general denial; the fourth, payment; and the seventh, a plea of surrender. Demurrers were sustained to the fourth and fifth paragraphs. The second paragraph of answer avers, in substance, that while the appellee was occupying the premises he and the appellant entered into an agreement whereby, in con
The first assignment of error discussed by appellant’s counsel is the overruling of the motion for a venire de novo.
By the special verdict the jury found that the defendant should have damages in the sum of $267.50, if the law was with him; and then by a general verdict the jury found for the defendant, and assessed his damages at $190.00.
The jury had found that the appellant had agreed to repair the cellar, and that it had not in fact been repaired, and that during the time appellee occupied the premises after that agreement was made, the rental value of the building was $80.00 per month, and if the repairs had been made the rental value would be $100.00 per month.
If there was, in fact, an agreement to repair the cellar, then the measure of damages would be the difference between the rental value of the premises with the repairs and the rental value without the repairs. The jury found that the agreement to repair the cellar was made on the — day of March, 1893, and that the repairs were to be made at once. The new year of the tenancy begun on April 1, following the date of the agreement, and from the facts found the building was worth $20.00 per month less for the time appellee occupied the building until he moved out, or a total of $380.00. The jury further found that the rent for November, 1894, if due, was $112.50, and that it had not been paid. The difference between these amounts is the amount named by the jury in the special verdict.
The jury further found that “the value of the attorney fees for plaintiff in prosecuting this cause is $75.00,” and this finding is with’in the terms of the lease, which, was filed with the complaint as an exhibit, and it is contended by appellant’s counsel that the attorney fee and the month’s rent, with interest,
Construing the finding as- a whole, its effect is, that when appellant filed her complaint there was nothing due her from the appellee. There being nothing due for rent which appellant could recover in an action against the appellee, no attorney fee could be allowed. The same would be true of interest.
In the case of Dawson v. Shirk, 102 Ind. 184, Mitchell, J., said: “Where a special verdict or special finding of facts is returned, nothing remains for the consideration of the court except to render the proper judgment on the facts, found according to the law, and when the jury assess the amount of the recovery, the data furnished and facts found must be so inconsistent with the amount assessed as that the two cannot be reconciled in order to justify the court in disregarding the assessment.”
We think the finding of the jury is sufficiently definite and certain to enable the assessment of the proper amount of damages sustained by the appellee. It can not be said that the filing of a remittitur by the appellee was an admission that the damages were not correctly assessed. There is no reason why appellee was not entitled to damages for the whole nineteen months, if he was entitled to damages for the year.
The first reason assigned for a new trial is, that the special verdict of the jury is not sustained by sufficient evidence. It is contended that there is no evidence to support the finding of the jury that in March, 1893, the appellant entered into a contract with appellee whereby appellant agreed to repair the cellar and pay $112.50 towards the cost of enclosing the windows, if appellee would pay so much of the cost of enclosing the windows as exceeded $112.50.
The duty of appellant to repair did not arise out of
“A promise to repair, made after the lease is entered into, is a mere nudum pactum, and no liability exists for a failure on his [the landlord’s] part to make such repairs.” Purcell v. English, 86 Ind. 34, and cases cited; Harry v. Harry, 127 Ind. 91; Mull v. Graham, 7 Ind. App. 561; Mattler v. Strangmeier, 1 Ind. App. 556.
We think it is evident that if there was any consideration for the agreement to repair the cellar, it was outside of the agreement to enclose the windows, for in all the conversations concerning the repairing of the cellar the appellee said the cellar must be repaired or he would not occupy the building any longer. The appellee says they agreed about enclosing the windows, and then, in the same conversation, “he [Mr. Taylor] says, ‘we will do something for the cellar, we will cement or gravel it; I will send some one-here to see about it,’ and I says, something will have to be done with it or I cannot continue to occupy the building.” Again the witness says: “Mr. Taylor said, after we came to an understanding about the windows, he said, ‘the building is costing me more than the rent we are getting justifies,’ and he says,‘we will have to do something with the cellar, cement or gravel it.’ I said, you will have to do something or we cannot remain in the building. He said, ‘I will send some one up to see about it.’ ” On cross-examination the witness testified to substantially the same thing, that if the cellar was not fixed he could not continue as a tenant of the building, and that Taylor said he would send some one up to see which .was best, cement or gravel. The wit
The agreement to enclose the windows was entirely separate from the contract of tenancy. Neither of the parties was under any obligation to enclose the windows. That agreement was complete in itself, and was carried out by both parties. Nowhere does the appellee say that he will not pay his agreed part on the Avindows if the cellar is not repaired, but in every instance he says if the cellar is not repaired he will not continue to occupy the building.
It is true, the conversation about the windows and the cellar was all one conversation, but it appears from appellee’s evidence that the alleged promise to repair the cellar Avas “after we had come to an understanding about the windows.” When this conversation took place his tenancy would expire in less than one month. He could vacate the premises at that time and nothing he said in that conversation would bind him to keep the building another year, whether the cellar was repaired or not. Even if there was a promise on Taylor’s part to repair the cellar, there was no agreement on appellee’s part to keep the premises, nor was there any promise on appellee’s part to do anything in consideration that the repairs should be made.
We think there was some evidence to show that appellant did promise to repair the cellar, but there is
A promise to repair made by a landlord to his tenant, during the tenancy, and without other consideration than such tenancy, cannot be enforced.
For the above reasons we think the court erred in overruling appellant’s motion for a new trial.
Judgment reversed, with instructions to sustain appellant’s motion for a new trial.
Rehearing
On Petition eor Rehearing.
We have carefully considered the reasons urged by appellee for a rehearing of this appeal, but are still of the opinion that a correct conclusion was reached on the former hearing. The only question presented in the petition is the construction placed upon the evidence as to certain repairs. This question wms fully argued in the original briefs, and was decided on the former hearing. The agreement to repair the windows was carried out, as shown by the evidence, but there is nothing in the evidence as to how long the tenant would continue to occupy the premises, or that he would continue to occupy them at all after the close of that year.
The tenancy would expire in less than a month when the conversation between the parties was had, and the subject-matter of that conversation may have been a tenancy for one year, or for six months, the evidence does not disclose. It is shown that the windows were repaired and that the cellar was never repaired, and it also appears that the tenancy did continue for one year and for seven months of another year. As
Petition overruled.