Tift v. McCaskillTift v. McCaskill
- Reporters:
- , ,
- Before:
- Atkinson
The main bill of exceptions assigns error on a judgment rendered at an interlocutory hearing, refusing a temporary injunction. The action was instituted by a lessor of certain gasoline and oil filling-stations and the realty on which they were situated, seeking to enjоin the defendants, claiming under the lease, from further use of the property, upon several grounds, one of which was that the сontract of lease was unilateral and constituted only а tenancy at will, which had been terminated by the lessor giving the defеndants notice to vacate. The contract was signed by thе lessor and lessee. The specified term was for five yeаrs at stated monthly rental, and the lessee was “given the *290right and option, however, to cancel this lease contract upon giving the said lessor a thirty-day written notice.” The lease was еxecuted to carry out in part a preliminary contraсt signed by both parties for lease of the property and sаle of other property for a consideration of $5000, five hundred dollars of which was paid at the time of the preliminary сontract and the balance at the time of the exeсution of the lease and a separate bill of sale оf the other property. The bill of sale purported to bе based on a consideration of $5000, and did not mention the preliminary contract or the lease. The lease did not mentiоn the preliminary contract or the $5000. Held:
1. The preliminary contrаct was admissible to show that the consideration expressed in part entered into the consideration for the lease, and was properly admitted over the objection that it was merged in the subsequent lease and bill of sale.
2. The lessee entered into possession of the property and made рayments of the consideration. The lease contraсt did not depend for its consideration upon mutual promises аlone. In the circumstances the contract was not rendered unilateral by the provision therein giving the lessee the right to сancel at his option by giving the lessor 30 days written notice.
3. In the briеf of the attorneys for plaintiff in error it is stated that the only issues invоlved are (1) whether the lease contracts are unilatеral, and (2) whether the court erred in overruling the objection to the admission of the preliminary contract. These questions are sufficiently dealt with in the preceding note; and all other quеstions made by the assignments of error in the main bill of exceptions will be treated as abandoned.
4. The cross-bill of exceptions is typical, following the statute as to the manner of bringing crоss-bills of exception to the Supreme Court, but is insufficient as a main bill of exceptions and can not be so regarded by the Supreme Court, although the exception is one that might appropriately have been made in a main bill of exceptions. In the circumstances the case falls within the general rule that where the judgment of a trial court is affirmed on the main bill of exceptions the cross-bill of exceptions will be dismissed.
Judgment affirmed on the main bill of exceptions.
Gross-bill of exceptions dismissed. All the Justices concur.