Dale v. Peden

• Decision Date: 07 November 1952
• Citation: 252 S.W.2d 687
• Parties: DALE v. PEDEN.
• Court: United States State Supreme Court — District of Kentucky

Page 687

252 S.W.2d 687

DALE v. PEDEN.

Court of Appeals of Kentucky.

Nov. 7, 1952.

Richard L. Garnett, Louie B. Nunn, J. R. White, Glasgow, for appellant.

Marion Vance, J. Wood Vance, Jr., Harry Berry, Glasgow, for appellee.

STEWART, Justice.

This is an appeal from a judgment rendered against Floyd Dale in favor of Ewell Peden for the sum of $900 with interest at 6% from January 11, 1951.

The litigation arose out of a contract entered into between Dale and Peden on January 24, 1950, under the terms of which Dale rented certain poolroom equipment to Peden for a year, the latter agreeing to pay for the use of the same $40 per month for the first six months and $42.50 per month for the last six months. This provision is in the contract: 'If Ewell Peden fails to pay the rentals as due then Floyd Dale to have the option of declaring the contract at an end and repossessing himself of the property.' No due date for the payment of rent is mentioned in the agreement.

Peden first installed the equipment in a building on Main Street in Glasgow. After a short while he relocated his business at 209 Back Street in the same city, subleasing space for his poolroom from one Bryant Bertram. In the early part of November, 1951, a contention arose as to whether Peden was tardy in paying the rent to Dale for the preceding month. Peden contends he offered the rent on October 29th as well as on November 5th. It is conclusive he tendered the rent to Dale's wife on the last mentioned date, she declining to receive it, and it is admitted Dale refused to accept the rent on the next day and asked for the return of his poolroom equipment, contending the Peden had breached the contract by nonpayment of the rent on what he claims was the due date, namely, October 24th.

On November 8th, Dale filed an action under Chapter II, Title VIII, of the Civil Code of Practice in which he asked for an order of delivery for the return of his equipment, plus certain damages for alleged injuries to it. An attachment also issued founded upon certain grounds set forth in the petition. Pursuant to the order of delivery and the attachment the sheriff on the same date seized the property, and it was subsequently turned over to Dale under Section 187 of the above Chapter, Peden having failed to make bond to retain it as permitted by Section 188 of the same Chapter. This is made manifest by the record because Dale, a short time after Peden's place of business was closed by court process, reopened the poolroom and he and Bertram, who owned the lease on the building, carried on the same operation with the same equipment.

By answer and counterclaim Peden denied he breached the contract and he averred Dale himself was guilty of forcing him out of business in violation of his contractual rights with the result that he was damaged, as he pleads, in the sum of $1,910 for loss of profits. Specifically, he claimed $30 per day as the amount he would have received during the sixty-seven days remaining under his contract. Dale's reply was a denial and, in addition, he alleged he had a right to declare the contract terminated for the reason (a) that Peden was illegally conducting a poolroom in a section the city of Glasgow had zoned against carrying on this type of commercial activity and Peden had been ordered by the proper authorities to cease using it for this purpose and (b) that at the time he instituted his action Peden was about to be evicted from the poolroom premises under a forcible detainer action brought by his landlord, Bertram, so that Dale must need proceed as he did to protect his property.

Nine grounds for reversal are urged, to wit: (1) That the lower court erred in not granting a continuance; (2) that the rental contract specifically gave Dale the right to terminate the contract and repossess the equipment if Peden failed to pay the rent when it became due; (3) that a forcible detainer action having been brought by the landlord to evict Peden from the poolroom, Dale had the right to protect his property by obtaining possession of it under an order of delivery to prevent the same from being set out in the street; (4) that, because the city of Glasgow had proceeded against Peden, it is contended, for illegally conducting a poolroom at a location which had been zoned against the operation of such a business, this action by the city estopped Peden from claiming any damages against Dale for forcing Peden out of business; (5) that, assuming Dale wrongfully closed the poolroom, Peden was required to mitigate his damages to the extent that he was capable of so doing; (6) that Peden should not have been allowed damages because such were based upon proof of a speculative nature; (7) that the court should have given proper instructions to the jury; (8) that Peden's counsel was guilty of misconduct in his argument before the jury; and (9) that the trial court should have granted a new trial on the ground of newly discovered evidence.

Before the trial, Dale moved for a continuance and in support thereof filed an affidavit which stated in substance that his wife, who was then sick and unable to be in court, was a material witness for him and that, if she could have appeared and testified, she would have said Peden 'never paid the rent on time' on the equipment and she would further have said she refused to receive the rent Peden offered...