Brayton v. Boomer
| Decision Date | 12 June 1906 |
| Citation | 107 N.W. 1099,131 Iowa 28 |
| Parties | W. A. BRAYTON, Appellant, v. ALLEN L. BOOMER, Appellee |
| Court | Iowa Supreme Court |
Appeal from Delaware District Court.-- HON. A. S. BLAIR, Judge.
ACTION at law to recover monies due as rent of real estate. The amount demanded in the petition was $ 378.80. The jury returned a verdict in favor of plaintiff in the sum of $ 120. A motion for new trial by plaintiff was overruled, and there was judgment on the verdict. Plaintiff appeals.-- Affirmed.
Affirmed.
Bronson Carr & Sons, for appellant.
E. C Perkins and Yoran, Arnold & Yoran, for appellee.
Defendant went into possession of the demised premises, a business building in Delphi, on June 1, 1901, under an oral agreement. Respecting such agreement, it is the contention of plaintiff that a term of one year was agreed upon, which term was subsequently extended to January 1, 1903; and he alleges that following the latter date defendant continued to occupy as a tenant at will until about April 1, 1904. It is the contention of defendant, on the other hand, that the agreement was for a tenancy from month to month and to terminate at such time as defendant might be able to dispose of his business, and he says that in March, 1902, he did sell out his business to one Clark, who took possession and was accepted as a tenant by plaintiff Both parties agree that the rent was to be $ 10 per month.
I. Plaintiff requested an instruction respecting the conditions under which a tenancy at will may be terminated, and the manner of proceeding, and the request was refused. We think there was no error. Defendant did not pretend to have served a notice for termination under the statute. He was relying wholly upon an agrement for termination, and if he failed to prove the same, the right of plaintiff to recover as demanded by him was fully made out, and the jury was so told in the instructions given.
II. In the eighth instruction given, after having correctly stated the law applicable to the facts if found to be as contended for by plaintiff, the court proceeded to tell the jury, among other things, that "if you find from the evidence that defendant did lease the premises, and in March, 1902, he sold out his business to Clark and delivered possession of the building to him with agreement that he, Clark, was to pay the rent thereafter, and said arrangement was made known to plaintiff who made no objections thereto, and that he, plaintiff, tacitly consented thereto, then defendant became relieved from liability for rent accruing after that time." The giving of that part of the instruction quoted is relied upon as error. It is no doubt true as a general proposition that a tenant for a term fixed continues liable on the covenants of his lease notwithstanding he may have assigned to another. Harris v. Heackman, 62 Iowa 411, 17 N.W. 592; Gas Co. v. Johnson, 123 Pa. 576 (16 A. 799, 10 Am. St. Rep. 553). And if the tenancy be at will it can be terminated by one of the parties only by service of notice as provided by the statute. Code, section 2991. No one will question, however, but that the parties to a tenancy, whatever the character, may by mutual consent terminate the same at pleasure; and consent in form of words is not necessary. If the lessor, with knowledge of the assignment, so deal with the parties as that his consent to the assignment may fairly be implied -- in other words, that he tacitly consented thereto -- it is sufficient. Colton v. Gorham, 72 Iowa 324, 33 N.W. 76.
III. The tenth instruction given is complained of as error, and considered by itself there is much of force in the contention. It reads as follows: ...
To continue reading
Request your trial