Berry v. Sample

• Decision Date: 17 January 1922
• Docket Number: 996
• Citation: 28 Wyo. 272,203 P. 257
• Parties: BERRY v. SAMPLE
• Court: Wyoming Supreme Court

203 P. 257

28 Wyo. 272

BERRY v. SAMPLE

No. 996

Supreme Court of Wyoming

January 17, 1922

APPEAL from the District Court of Natrona County, HON. CHAS.E WINTER, Judge.

Action by Frank D. Berry against W. R. Sample. There was a judgment for plaintiff and defendant appeals.

Appeal Dismissed.

E. G Vannatta, for plaintiff and respondent.

Nichols & Stirrett and Floyd E. Pendell, for defendant and appellant.

POTTER Chief Justice. KIMBALL, J., and BLUME J., concur.

OPINION

POTTER, Chief Justice.

This case is here on direct appeal. The action was brought by Berry to recover from Sample the sum of $ 1200, which had been paid by the former to the latter in advance as rent for the last year of the ten-year period covered by a written lease of certain rooms on the second floor of a building in Casper; the alleged ground for the recovery being the violation by Sample, the lessor, of his agreement contained in the lease to furnish at his own expense all heat required by Berry, the lessee, upon the demised premises. The petition contained also a prayer that the lease be declared of no further effect as against the plaintiff and that he be relieved of the further performance of the terms and conditions thereof; but the judgment upon a trial of the action before the court without a jury, was only for the recovery of the amount aforesaid. The lease was dated July 5, 1917, and the plaintiff, respondent here, vacated the premises early in January, 1919, returning the keys to the defendant, the appellant here, and demanding a return of the rent paid in advance as aforesaid; it appearing also that he had paid the rent, $ 100 per month, during the time of his occupancy of the premises.

The grounds upon which it is sought to reverse the judgment are that the petition does not state sufficient facts to constitute a cause of action or sustain the judgment, and that the judgment is not sustained by the evidence and is contrary to law. We are satisfied that the petition states a cause of action and is sufficient to sustain the judgment and that the evidence is sufficient to sustain the court's finding that the defendant and appellant had violated his covenant to furnish heat for the leased premises to such an extent that they had become unfit for occupancy, justifying the plaintiff in vacating the premises, and sufficient in law to sustain the judgment. We refrain, however, from discussing the questions presented in support of these grounds upon the merits for the reason that, after having...