Ditkof v. Lifshitz

• Decision Date: 22 November 1918
• Docket Number: 20,938
• Citation: 169 N.W. 483,141 Minn. 88
• Parties: LOUIS DITKOF v. BENJAMIN LIFSHITZ AND OTHERS
• Court: Minnesota Supreme Court

169 N.W. 483

141 Minn. 88

LOUIS DITKOF v. BENJAMIN LIFSHITZ AND OTHERS

No. 20,938

Supreme Court of Minnesota

November 22, 1918

Action in the district court for Hennepin county against the persons doing business under the firm name of The Liberty Theatre Company to recover $1,400. At the first trial the court directed a verdict in favor of defendants. Plaintiff's motion for a new trial was granted and he was permitted to amend the complaint so as to state a cause of action for money had and received. The second trial was before Hale, J who directed a verdict for $1,072.50. Defendants' motion for a new trial was denied. From the judgment entered pursuant to the verdict, defendants appealed. Affirmed.

SYLLABUS

Verdict upon second trial nullifies the verdict upon first trial.

1. When a new trial is granted, the trial had, and a verdict rendered, no proceeding by appeal, or otherwise, can reinstate the verdict rendered on the first trial.

Amendment of complaint.

2. The trial court did not err in allowing the complaint to be amended.

Landlord and tenant -- lease of theatre void because of illegal stipulation.

3. The lease construed and held to contain an illegal provision contaminating the whole instrument, the provision being an attempt to operate a theatre by the lessee under a license issued to and held by the lessors, contrary to the ordinance of the city.

Simon Meyers, for appellants.

Brady Robertson & Bonner, for respondent.

OPINION

HOLT, J.

The controversy, resulting in the judgment challenged on this appeal, grows out of a lease of the Liberty Theatre and equipment, located at 1013 Sixth avenue north in the city of Minneapolis. The lease was executed by defendants to plaintiff, and runs for three years from September 1, 1916, at the monthly rental of $175, with the option to plaintiff of a two year extension, at an increased rental. When the lease was entered into the lessors held license from the city to operate the theatre. The lease in addition to the usual terms contains these provisions:

"It is further provided that the Lessee shall deposit with the Lessors the sum of One Thousand Dollars ($1000.00) in cash, the receipt whereof is hereby acknowledged, which deposit shall be as security for the faithful performance by the Lessee of the terms of this lease; provided further that the said One Thousand Dollars ($1000.00) shall be applied as and for rent for the last six (6) and a fraction of a month, of the term, and the said One Thousand Dollars ($1000.00) shall bear interest at six per cent (6%) per annum until so applied or repaid; provided further that if the said option hereinbefore granted is accepted, a condition precedent to the taking thereof shall be the redeposit of One Thousand Dollars ($1000.00) by the Lessee with the Lessors as and for security in the same manner as herein before provided.

"It is further provided that whereas the license to operate said theatre is in the name of The Liberty Theatre Company the Lessors jointly and severally agree with the Lessee that the said Liberty Theatre Company will hold said license as and for the benefit of the said Louis Ditkof in the operation of said theatre, and by no act or omission on his part will the said Liberty Theatre Company prevent the said Louis Ditkof from obtaining the full benefits of the said license, and if the said Company should fail to do so, or if the said license should be canceled for any cause whatsoever, except by any future misconduct or interference therewith by the said Louis Ditkof, or by any one on his behalf, then and in that event the said Louis Ditkof shall have the right and option to declare said lease void, surrender possession thereof and obtain back his deposit plus interest to date, less any rent which may be then unpaid.

"The intent and purpose of this last provision is to enable said Louis Ditkof to safely operate said theatre under a license in the name of the Liberty Theatre Company, and to place the risk of the loss of said license in the manner and form hereinbefore provided for and to said extent on the Lessors, and not on said Louis Ditkof."

The city ordinance requires a license for theatres. Such license is issued annually so as to expire on the first Monday in May, and the fee is $150 per annum. Any license so granted may be revoked by the mayor or city council, and, upon conviction of the licensee, before the municipal court, for violation of any ordinance relating to the conduct of the licensed business, the court may revoke the license in addition to imposing a penalty. If any person holding such license should quit or dispose of the business before the expiration of the license he may, with the consent of the mayor, indorsed upon the license, sell and transfer said license to any person who shall succeed him in the same business at the same place; which transfer shall be entered in the books of the city comptroller before it shall be of any validity. Plaintiff deposited $1,000 under the provision of the lease and took possession. No effort was made to obtain the mayor's consent to a transfer of the license held by the lessors, nor was that license revoked. But, after operating the theatre for about two months, the license inspector threatened plaintiff with arrest, unless he procured a license. He thereupon abandoned the premises and sued to recover the $1,000 deposited. The original complaint set out the facts above summarized with more particularity. The trial resulted in a directed verdict for defendants. Plaintiff's motion for a new trial was granted. He obtained leave to amend his complaint so as to state a cause of action for money had and received. On the second trial the court held the lease unlawful, and the result was the judgment from which this appeal is taken.

The appellants contend that the first verdict should be reinstated, because the court erred in granting a new trial this...