Brown v. Cairns

• Decision Date: 07 December 1901
• Docket Number: 12,394
• Citation: 66 P. 1033,63 Kan. 693
• Parties: M. T. BROWN et al. v. ALEXANDER CAIRNS et al
• Court: Kansas Supreme Court

66 P. 1033

63 Kan. 693

M. T. BROWN et al. v. ALEXANDER CAIRNS et al

No. 12,394

Supreme Court of Kansas

December 7, 1901

Decided July, 1901.

Error from Coffey district court; W. A. RANDOLPH, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. LANDLORD AND TENANT--Contract Construed--Effect of Abandonment. A tenancy was created under a written lease for the term of ten years, at an annual rental of $ 1000 for the first five years. Before the expiration of the first year, the landlords informed the tenants that the annual rental for the first year would be reduced by deducting $ 250 from the amount, and a like sum remitted from the rent of the second year, provided the lessees would go on as they had agreed, and carry out the terms of the contract or lease. This condition was accepted in writing by the lessees, and they paid the two years' rent as reduced, but at the end of the second year they abandoned the premises, and notified the lessors that they had thrown up the lease. Held, that an action to recover the rent remitted could be maintained.

2. LANDLORD AND TENANT--Acceptance by Letter. The letters written by the parties containing the agreement for the remission of rent examined, and held, that the acceptance by the lessees of the offer made by their landlords was not conditional.

3. LANDLORD AND TENANT--Case Followed. The case of Brown v. Cairns, ante, p. 584, 66 P. 639, cited and followed.

Hutchings & Keplinger, for plaintiffs in error.

James Redmond, for defendants in error.

SMITH J. DOSTER, C. J., JOHNSTON, ELLIS, JJ., concurring.

OPINION

SMITH, J.:

By an instrument in writing plaintiffs in error leased to defendants in error a body of land in Coffey county for the term of ten years from March 1, 1895. The latter agreed to pay as rent for the premises $ 1000 annually for the first five years, and $ 1500 each year for the remaining time. In January, 1896, the lessees informed their landlords that they would be unable to continue to hold the land during the entire term, owing to a failure to realize as much from the premises as they expected. Plaintiffs thereon agreed with the defendants that if the latter would continue in possession, and keep and perform the conditions of the lease, they, the lessors, would reduce the rent and remit the sum of $ 250 from the the amount of rent due for the year 1895, and an equal sum from the rent due for the year 1896.

The modification of the lease in the respect mentioned was made in a letter written by the plaintiffs in error, tendering a remission of rent, and accepted in a letter to plaintiffs written by the lessees. In a letter dated February 11, 1896, M. T. Brown, one of the plaintiffs, in answer to one received by him from Boulton, one of the defendants, wrote:

"I assure you we want the matter to go ahead entirely satisfactorily to all parties as possible, and with the best of feeling all around, and I will make another proposition which you certainly cannot say is not reasonable. Instead of taking off $ 250 each from the last half the first two years' rent, as before indicated, I will take it off entirely, provided you go ahead as you agreed to do in your contract."

To this letter the lessees responded by writing:

"We have concluded to accept your offer of $ 250 reduction off each of the first two years' rent, though we should like to have had it for the first five; however, we will do our best, and if by then we are not able to make it, you will probably meet us again. . . . We will continue to do our best, and if we cannot make it, I am sure you will meet us again, as we don't want to leave the place, but don't intend to get in the hole."

On March 1, 1897, the lessees abandoned the premises without the consent of the plaintiffs, and have ever since refused to perform any of the conditions of the lease.

Alleging this state of facts in the first count of the petition plaintiffs below...