17 Colo. App. 48 | Colo. Ct. App. | 1902
“From the time of the expiration of the first period the rent of the said premises for the succeeding five years, shall be a sum equal to six per cent per annum of the valuation so found and returned as aforesaid,' payable in monthly installments in advance as aforesaid.”
Timerman assigned the lease to appellee Lunt in these terms: “Know all men hereby that for and in consideration of the matters hereinafter mentioned and the sum of $750.00 to me in hand paid by Horace G-. Lunt * * * the receipt whereof is
“Signed, sealed and delivered at Denver, Colorado this 29th day of December, A. D. 1887.
“George W. Timerman.”
June 15, 1888, Lunt assigned the lease to The Denver Tramway Company. January 6, 1889, The Denver Tramway Company and its successors, by consolidation, assigned the lease to The Denver Auditorium Company. Before the expiration of the first five years of the lease an appraisement of the property above mentioned was had between the lessor and the assign then holding the lease, The Denver Auditorium Company, and the rental value thereof, by such appraisement, was fixed at $600.00 per month. The rent so determined from February 7, 1892, to March 7, 1894, was paid by said'The Denver Auditorium Company. The rent being in default for five months ending August 7, 1894, appellant instituted suit against appellee in the district court of said county to recover the amount of said delinquency, to wit, $3,000. A general demurrer to* the complaint
During the pendency of such action another suit had been brought by appellant against appellee for rent from August 7, 1894, to March 7, 1896, amounting to $12,000. When above remanded action was again in the lower court as the pleadings therein were identical with those in said suit for $12,000, except as to the time for which rent was claimed and the amount sued for, the actions were consolidated and so tried. Such trial was to the court upon the complaint as it stood in this court and upon the evidence adduced by the respective parties. The lower court on the retrial found the allegations of the complaint proven, but made the further finding, “that the appraisement therein mentioned was made without notice to the defendant,” and entered judgment for appellee. To review this judgment is this appeal.
Appellant contends that this appeal presents the same case heard in Wilson v. Lunt, supra, and that the doctrine of “the law of the case” is applicable to and decisive of this hearing.
Appellee contends:
First — That the proof herein has modified the case presented by the complaint at the former hearing in this court.
Second — That this being a different ease from Wilson v. Lunt, supra, the doctrine of “the law of the case” is not applicable, therefore he is at liberty to urge, and does urge, that an action will not lie in*52 favor of appellant, the lessor, on the assignment contract between Timerman and appellee Lnnt.
Third — That it appears in the present action that no notice of the appraisement was given to appellee, that the failure to give such notice is fatal to this action, that this question was not ruled on the former appeal.
Fourth — That the evidence does not show a compliance with the terms of the lease as to the appraisement in this, that it fails to show that the appraisers made a return of their appraisement and valuation in writing to appellee or to any one else.
1. As said above, this court in the former appeal held the complaint stated a cause of action. We have the same complaint herein. The lower court herein upon sufficient evidence found the allegations of such complaint proven, and further found that notice of the appraisement had not been given to appellee. The failure to- give this notice does not distinguish the present case from the former, because such notice, in the former hearing, was held not to be essential to recovery by appellant. In the former action the complaint did not allege that notice had been given to appellee, in fact the language-of paragraph 7 of the complaint, the only part thereof pertinent to the question of notice, excludes the idea that such notice had been given and the court held the complaint stated a cause of action. If it was necessary for plaintiff to prove notice of the appraisement to appellee it was necessary to allege it. Further, such notice is not required by the lease between appellant and Timer-man, nor by the contract of assignment from Timer-man to appellee. These instruments determine the rights of the parties. The lease provides that Timer-man shall pay the rent for the full term, that the rent for the second period of five years shall be determined by an appraisement, such appraisement to
The Denver Auditorium Company at the time of the defaults in rent involved herein was the assign holding the lease. The lease and contract of appellee provided that not appellee but the assign holding the lease, The Denver Auditorium Company, should receive notice of the appraisement and participate therein. The last mentioned company received this notice and participated in the appraisement and has acted thereunder. This satisfied the terms of the lease and the contract of assignment to appellee.
2. The lower court herein found the requirements of the lease as to an appraisement satisfied except as to the matter of notice. This was a finding that in effect there was a return of the appraisement prescribed by the lease. This finding was justified by the fact that when counsel for appellant began to offer proofs as to the details of the appraisement counsel for appellee said: “There is no issue here about an appraisement having been made of this property by appraisers, one of whom was selected
3. We are asked by appellant to enter final judgment. This we decline to do as it might deprive appellee of the opportunity to have this ruling reviewed by the supreme court in the event appellant prevails upon the retrial below.
Judgment reversed. Reversed.