Bass v. Rollins

• Decision Date: 16 December 1895
• Docket Number: Nos. 9756-(197).,s. 9756-(197).
• Citation: 63 Minn. 226
• Parties: MARTHA D. BASS v. ERNEST B. W. ROLLINS.<SMALL><SUP>1</SUP></SMALL>
• Court: Minnesota Supreme Court

Page 226

63 Minn. 226

MARTHA D. BASS v. ERNEST B. W. ROLLINS.¹

Nos. 9756-(197).

Supreme Court of Minnesota.

December 16, 1895.

Appeal by plaintiff from a judgment of the municipal court of St. Paul, in favor of defendant, entered in pursuance of the findings and order of Orr, J. Affirmed.

Bigelow & Taylor, for appellant.

George C. Lambert, for respondent.

START, C. J.

Action to recover $50 for two months' rent. Trial by the court without a jury, and judgment for the defendant, from which the plaintiff appealed.

The here material facts, as found by the court, are that on November 1, 1894, the plaintiff leased to the defendant a certain apartment for a monthly rental of $25, payable in advance on the first secular day of each month; that it was a part of the agreement of such leasing that the plaintiff should furnish to the defendant proper and sufficient heat while he was occupying the demised premises; that at times during the month of December, 1894, and up to February 6, 1895, the plaintiff failed to provide such heat, although repeatedly notified by the defendant so to do, but kept the premises, during such times, at such a low temperature as to render the same unfit for occupancy; and that, by reason of such failure, the defendant was compelled to and did vacate the premises on February 6, 1895. The defendant paid all rent except for the month of February.

We concede, for the purposes of this case, without so deciding, that the agreement to furnish to the defendant sufficient heat was not a condition precedent to the payment of rent, but the trial court has not found that the defendant, by remaining in possession of the premises after February 1, elected to keep them for that month. Nor can such fact be inferred from the facts found by the court. In this respect the case differs from Flint v. Sweeney, 49 Minn. 509, 52 N. W. 136, which was a case where the condition of the demised premises had not materially changed for several months, and it was held that the lessee, by continuing the occupancy of the premises after the end of the current month, elected to remain for another month, and was liable for that month's rent. In the case at bar it was only at times that the lessor failed to furnish a proper amount of heat. It was a mere neglect of duty, which the lessor might have corrected at any time, and the lessee did not, as a matter of law, elect to keep the premises for the month of February if the lessor did not keep them warmed, and he...