179 Iowa 615 | Iowa | 1917
On the other hand, defendant’s Avife testified substantially as did Mrs. Baker, and that at Mrs. Baker’s instance she telephoned to Walter Williams, inquiring “if he would be Avilling to rent us the fixtures, and he said he would. He said he Avanted $30, and I told him I thought that Avas too much, and he came down to $20 for the month, and then I told him if it didn’t pay I did not care to run it more than two weeks — we would take it for the month — and the agreement was so made. He said, ‘Take it out of the $50 for time used,’ and I considered the rent which we owed, supposing it was all paid, and nothing was said about a written contract or lease or anything.”
She testified further that they operated the moving pic: ture show until March 9th following, when Williams submitted a written lease for signature, aud that they refused
“No demand was made upon me by Mr. Williams or Mrs. Baker for the possession of the moving picture outfit before the first of March, 1915, nor until after we had been, in possession of the show for about a week. They brought a lease to our place and wanted us to sigD it, and I told them we had one and we didn’t need two. I told them we had a verbal lease, and the written one was bad and I would not sign it, and then Mr. Ryan said that they would close the show. I said ‘Close the show. We don’t want the show. Our rent is paid, and if you feel like closing it, close it. I don’t want it. Before I will sign the lease, you can close it and take it.’ * * * I know Mr. Ryan and Mr. Williams came out to the show to take possession. I told Mr. Ryan I had rented it for a month and the rent was paid, and if he wanted the fixtures to go down town and settle with you [Mr. Tomlinson] and pay you what he was owing me and get the stuff that night. They had not made the payment of the balance of $50, nor made any offer at that time. I did not at any time refuse to let them have the goods except on condition that they pay what was owing me. I told them at any time they paid the balance of the money they owed me they could come and get the stuff at any time. They didn’t take anything until they took it all. That was the 7th of June. At the time they paid me the other $50, they took it all, except they left some old broken-up lumber. Mr. Ryan said if T would allow them to take the fixtures, he would let me keep the broken-upj lumber as wood. Q. Did you stop them from tak
Walter Williams denied that Redinger offered to surrender possession of the property, and testified that he had not told defendant’s wife that she and defendant might have the use of the property for two weeks or a month, or any other time, and swore that there was no definite understanding as to leasing. Thereafter, the court called defendant, who, in response to questions, swore that he had never paid the $20 for rent, and that nothing had ever been said ■about it.
“Court: The plaintiff in this case is denying that lease entirely? Mr. Ryan: Absolutely. Court: Gentlemen of the jury, it is the order of this court that all of the testimony of the defendant Redinger with reference to a lease be stricken from this record. The testimony here would not justify you in finding that Redinger ever had a verbal lease is withdrawn from your consideration entirely.”
ing possession — relying on Farmers' Milling Co. v. Mill Owners Mut. Fire Ins. Co., 127 Iowa 314; Donley v. Porter, 119 Iowa 542, 545; and like decisions. But defendant distinctly asserted the existence of the oral lease and his possession thereunder, as plainly appears from testimony heretofore quoted. True, he also offered to yield possession then on condition that the deferred payment of $50 be then made. This was not done, and therefore the offer not accepted. That said doubtless was by way of concession, for he had waived any lien he may have had as landlord. At any rate, the conditional offer of possession did not obviate his assertion of the right to continue in possession of' the property under the alleged oral lease.
The issue as to whether there was an oral lease should have gone to the jury. — Reversed.