Cavanagh v. Iowa Beer Co.
Decision Date | 18 November 1907 |
Citation | 136 Iowa 236,113 N.W. 856 |
Parties | CAVANAGH ET AL. v. IOWA BEER CO. |
Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Polk County; W. H. McHenry, Judge.
Action at law to recover damages for breach of a contract of lease. Defendant admitted the making of the lease, but pleaded that it never became operative by reason of breach of a condition precedent. A jury was waived, but before any testimony was introduced plaintiff moved for judgment upon the pleadings. This motion was sustained, and defendant appeals. Reversed.N. T. Guernsey and Hubbard & Burgess, for appellant.
St. John & Stevenson, for appellees.
In January of the year 1905 the parties to this action entered into a written contract of lease for part of a certain lot in the city of Des Moines. This lease was for a term of five years from and after the 1st day of April, 1905, and provided for an annual rental of $1,000 to be paid in advance monthly installments, beginning April 1, 1905. Plaintiff alleged “that after the making of said lease, and before the 1st of April, 1905, they erected the brick building specified in the said lease on said premises, and expended therefor $1,200 or more, and fully complied with the terms and condition of said lease on their part, and about the 1st of April, 1905, the plaintiffs delivered to the said defendant the full possession and control of said premises, and the defendant was in possession of said premises thereafter from the 1st day of April, 1905, to about the 1st day of June, 1905, at about which latter day the said defendant abandoned said premises, and refused to perform any of the conditions of said lease on its part, and hitherto have wholly failed to pay any rents, and have refused to have anything to do with said premises, and about the 5th day of June, 1905, the said plaintiffs took possession and control of said premises with notice to said defendant and under a stipulation that the act of so taking possession should not in any manner prejudice the rights or liabilities of either of the parties under said lease.” The lease contained these, among other, provisions: The defendant agreed “not to permit any unlawful business to be conducted on said premises and to pay promptly during the continuance of this lease all amounts whatsoever that may be legally required of it in connection with the running or operation of a saloon on said premises, as well as the operation and running of any other business of whatsoever kind which may be conducted and carried on upon said premises.” And the plaintiff agreed to erect a one-story brick building 16 by 50 feet upon the lot to be completed on or before April 1, 1905, suitable and ready for the conducting of a saloon, and, upon request, remove another brick building and substitute a frame one in its place. Defendant admitted the execution of the lease, but averred that the sole inducement and consideration therefor was an oral agreement on plaintiff's part that they (plaintiffs) would procure or cause to be procured from the city council of the city of Des Moines the consent of the said city council to the operation by defendant of a saloon upon the leased premises, that the lease was not to become obligatory until plaintiffs procured this consent. It also pleaded that plaintiff failed and neglected to procure this consent, and that, by reason thereof, the consideration for said lease failed, and that it never became operative. We now extract from the answer these further paragraphs: ...
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