60 Minn. 34 | Minn. | 1895
On March 21, 1894, the plaintiff in his capacity as assignee of the Page Flour Mills, an insolvent corporation, commenced an action against the defendant, Tileston, to recover damages for the breach of one of the covenants of a lease made and entered into between these parties, the cause of action alleged in the complaint being the failure on the part of the defendant to pay the rent due on the lease. The defendant did not serve any answer, and on April 12, 1894, the plaintiff caused judgment to be entered against the defendant for the full amount of the damages claimed in the plaintiff’s complaint', which judgment was subsequently paid in full by the defendant and the plaintiff executed a satisfaction thereof. On March 31, 1894, this action was commenced, the plaintiff in his complaint alleging the execution of the lease above referred to between these parties, and setting forth many of the terms and conditions of the lease, which was executed September 22, 1891. It is alleged in the complaint that plaintiff leased to defendant, “the Page Flour Mills property, * * * consisting of a certain water power thereon, a certain dam constructed and operated thereon for the purpose of utilizing such water power, together with all the privileges for the use of said reservoir and dam, and of the flour mill with its machinery and appurtenances, the grain or storage elevator, the cooper shop, the boarding house and dwelling house, * * * during the full term of one year from and after the 12th day of October, 1891, at a monthly rental of $200 per month, payable on the first day of each and every month. And the defendant also covenanted in said lease that he would, at the expiration of the term therein specified, surrender the premises to the plaintiff in as good condition and repair as when he took them, reasonable wear and tear and damage by the elements alone excepted.” The defendant occupied the premises until about
A careful examination of the complaint leads to the conclusion that the cause of action alleged in the plaintiff’s complaint herein is something more than an allegation of the breach of a covenant for neglect or refusal to repair. The action is one brought by plaintiff against defendant for his negligence and carelessness in the management of the leased property, whereby a large and valuable part of it was not merely injured, but destroyed. One wing of the dam, 15 feet long, and the head gate were entirely destroyed by reason of the carelessness and negligence of the defendant, and the property in other respects greatly injured and damaged by such negligence, according to the allegation of the complaint. Such a cause of action is one sounding in tort, and not one on contract. The language used by this court in Whittaker v. Collins, 34 Minn. 299, 25 N. W. 632, is applicable here, viz.: “The action is one of tort purely, although the existence of a contract may have been the occasion or furnished the opportunity for committing the tort.” The action could have been maintained without setting forth the whole of the contract. It would have been sufficient to have alleged the making of a lease for a certain time; that defendant went into possession, control, and management of the premises thereunder, alleging the condition of the property when he entered into possession, and what it was suitable and used for, and then alleging substantially what plaintiff has done as to the negligence and carelessness of the defendant in the management of the property, and the consequential damages. It was not necessary to allege all the terms of the lease or contract in order to maintain this action, and such facts as are thus unnecessarily alleged may be deemed as surplusage. The covenant in the lease upon which the defendant insists that this action is brought is that the defendant “will, at the expiration of the time as herein stated, quietly yield and surrender the aforesaid premises to the said party of the first part, his successors or assigns, in as good condition and repair as when he .took them, reasonable wear and tear and damages by the elements alone excepted.” The very exception stated in the lease, in connection with the allegation that the damages were caused by high water, and through the negligence and careless man
Order affirmed.