Bickford v. Kirwin

Citation30 Mont. 1
PartiesBICKFORD v. KIRWIN et al.
Decision Date24 February 1904
CourtUnited States State Supreme Court of Montana

30 Mont. 1

BICKFORD
v.
KIRWIN et al.

Supreme Court of Montana.

Feb. 24, 1904.


Appeal from District Court, Flathead County; D. F. Smith, Judge.

Action by F. L. Bickford against Thomas Kirwin and others. From the judgment, plaintiff appeals. Reversed.

This action was brought to recover judgment against the defendants for the sum of $150, alleged to be due as rent for the three months beginning on August 15, and ending on November 15, 1901, under a lease by the plaintiff to the defendant Kirwin of certain premises in Kalispell, Flathead county. The lease was for a term of two years from and after March 15, 1901, rent payable monthly, at the rate of $150 per month. As construed by the parties, payment was to be made on the 15th of each month in advance. To secure the payment of the rent according to the terms of the lease, the other defendants became sureties to the plaintiff for Kirwin upon a bond, of even date with the lease, in the sum of $1,000. Kirwin went into possession of the property and occupied it up to and including October 15, 1901, when he tendered the plaintiff the keys of the building and offered to surrender possession. He was then in default for the rent due on August 15th, and thereafter upto and including October 15th. The offer being declined, Kirwin went out of possession and refused to pay rent after that time, claiming that under the terms of the lease he had the right to surrender the property at any time and be released from all further liability. The action was thereupon commenced. The defendants filed no answer, because they did not care to resist payment of the installments of rent already accrued; but on November 9th stipulated with the plaintiff that the complaint might be amended so as to include a demand for the installment to fall due on November 15th, and that the court might render judgment for this installment, also, if the defendants were liable for it under the contract. The stipulation stated that the plaintiff would, if the evidence was admissible, testify that the defendant Kirwin had prepared the written contract and submitted it to him for signature, and that his understanding of it was that it embodied a “straight lease” for a term of two years, to be forfeited at plaintiff's option for breach of any of its conditions by Kirwin; that the defendant would testify that he understood that he had the option to relinquish occupancy at any time and be released from liability; that the installments of rent alleged to be due up to October 15th were actually due and payable; that the installment to fall due on November 15th would be...

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