Benjamin v. Vieth

• Decision Date: 17 May 1890
• Citation: 80 Iowa 149,45 N.W. 731
• Parties: BENJAMIN v. VIETH.
• Court: Iowa Supreme Court

80 Iowa 149

45 N.W. 731

BENJAMIN

v.VIETH.

Supreme Court of Iowa.

May 17, 1890.

Appeal from district court, Pottawattamie county; N. W. MACY, Judge.

About the 10th day of July, 1887, the following instrument was executed: “(Lease.) This agreement witnesseth that Margaret R. and T. J. Moore have this day leased to Herman Vieth all the buildings on lots 17 and 18, in block 6, Oakland, Iowa, for the period of one year from March 1st, 1887, at the monthly rental of $12.50, in advance, on the first day of each month. Herman Vieth agrees to take and pay for said premises for said term $150.00, at the times above specified; to use the same as an agricultural implement stand, or for any other lawful purpose; to use due care and diligence in the protection of said property; to surrender up the same on the expiration of the term in as good condition as at present, ordinary wear and tear and unavoidable accidents excepted. [Signed] MARGARET R. MOORE. T. J. MOORE. HERMAN VIETH.” In pursuance of said lease the defendant took possession of said premises, and occupied them, and paid the rent till the 28th day of May, 1887, when the building was burned. No rent was thereafter paid. The claim for rent was assigned to plaintiff, and she brings this action to recover under the foregoing facts. The answer, as originally filed, was a general denial, and also averred facts to show that the lease should be so reformed as to terminate it, if the building was destroyed by fire. On the issues thus formed, the cause was transferred to the equity side for trial as an equity case. At the close of the testimony the defendant amended his answer to conform to the testimony, by averring “that neither T. J. and M. R. Moore, or either of them, nor this plaintiff, ever demanded any rent of the defendant under said lease prior to the commencement of this action.” Upon the issues thus presented the district court found for the defendant, and from a judgment dismissing plaintiff's petition she appealed.Freemont Benjamin, for appellant.

E. A. Babcock and C. H. Converse, for appellee.

GRANGER, J.

As to the claim in the answer for a reformation of the lease, appellee concedes in argument the insufficiency of the testimony to sustain the claim, and it is to be disregarded. This leaves the issue upon the general denial and the amendment to the answer filed at the close of the testimony. This amendment must be understood as a distinct division of the answer, for it makes no...