Bickford v. Kirwin

• Decision Date: 24 February 1904
• Citation: 75 P. 518,30 Mont. 1
• Parties: BICKFORD v. KIRWIN et al.
• Court: Montana Supreme Court

75 P. 518

30 Mont. 1

BICKFORD v. KIRWIN et al.

Supreme Court of Montana

February 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 treated as due and payable at the commencement of the action; and that the sole question to be determined by the court was whether the defendants were liable for rent after Kirwin ceased to occupy the premises, which in fact he did on October 15th. To the stipulation was attached a certified copy of the lease. The court adjudged that installments of rent had become due and payable on the 15th August September, and October, but that the plaintiff was not entitled to recover any other installment, thus sustaining the contention of the defendants that Kirwin was to be released from liability upon ceasing to occupy the property at any time. Judgment was accordingly entered for the plaintiff for $450 and costs. From this judgment the plaintiff appealed, and has submitted to this court the question whether the district court correctly construed the contract.

The first paragraph of the lease is in the ordinary form, the habendum clause being as follows: "To have and to hold the above rented premises to the said party of the second part, his heirs, executors, administrators and assigns for and during the full term of two years from and after the (15) day of March, 1901, unless sooner forfeited." It then proceeds: "And the said party of the second part, for his heirs, executors, administrators and assigns, agrees to and with the said party of the first part, to pay his heirs executors, administrators or assigns, as rent for the above mentioned premises, the sum of one hundred and fifty and no,' 100 dollars per month during occupancy of said building. And it is further agreed by and between the parties as follows: That should the said party of the second part, his heirs, executors, administrators or assigns, fail to make the above mentioned payments as herein specified, or fail to fulfill any of the covenants herein contained, then and in that case it shall be lawful for the said party of the first part, his heirs, executors, administrators or assigns, to reenter and take full and absolute possession of the above rented premises-30 days' notice, and hold and enjoy the same fully and absolutely, without such reentering working a forfeiture of the rents to be paid and the covenants to be performed by the said party of the second part, his heirs, executors, administrators or assigns." Then follow provisions prohibiting a subletting of the premises during the term of the lease, and requiring the lessee to quietly yield and surrender the property to the lessor "at the expiration of the time herein recited."

Noffsinger & Poorman, for appellant.

Downing & Stephenson, for respondents.

BRANTLY C.J. (after stating the facts).

1. At the hearing the respondents submitted a motion to dismiss the appeal on the ground that the record does not contain a copy of the judgment roll. There is no merit in the motion. It is true there is no formal roll consisting of the papers enumerated in section 1196 of the Code of Civil Procedure for the obvious reason that no...