150 Iowa 87 | Iowa | 1911
On June 17, 1909, plaintiff filed his petition alleging that defendant was indebted to him for three monthly installments of rent under a five-year lease of a building’ occupied by defendant; said leáse expiring May 15, 1911. The mpnthly rental was $41.66. In addition to allegations as to a prior adjudication which need not be further referred to, the defendant pleaded eviction by plaintiff on April 15, 1909, and a continuance by plaintiff in the possession of the premises, constituting a cancellation of the lease and relieving the defendant from further’ liability for rent. Defendant further pleaded that on July 12, 1909, he paid one monthly installment of rent to the plaintiff, which plaintiff accepted, still holding-possession of the premises and depriving defendant of the use thereof, and for this amount defendant asks judgment as for money had and received without consideration. By way of reply, plaintiff alleged that the payment off rent on July 12 was accepted and receipted for as a payment of the monthly installment due April 15. There was evidence tending- to show that a prior action for one month’s .rent due and payable in advance on April 15, 1909, had been commencéd on that date, aided by landlord’s attachment, under which plaintiff had caused the goods of defendant in the building to be levied upon and the building itself locked up, and that on the trial of such action which was held bn the 17tl'i of June, 1909, said action was dismissed as having been prematurely brought and the attachment discharged as wrongful. There was also evidence tending to show that defendant, had not occupied nor had the use of the building after it had been closed by plaintiff on the 15th of April.. On the other hand, there was evidence tending to show that defendant, after- April 15, posted in and about the building rent signs or placards indicating his desire to sublet the premises, and in other ways expressed
We are wholly unable to understand on what theory the lower court held that, notwithstanding the exclusion by plaintiff of defendant from the building, such as to relieve defendant from obligation to pay rent from May 15 to October 15, the date of the judgment, the lease had hot been canceled, but was in full force and effect and the defendant entitled.to possession, so as to be liable for
The judgment and decree were both erroneous, and the case must be remanded for further proceedings not inconsistent with the views of this court herein expressed.— Reversed and remanded.