Donahoe v. Rich
| Decision Date | 27 October 1891 |
| Docket Number | 275 |
| Parties | DONAHOE ET AL. v. RICH |
| Court | Indiana Appellate Court |
From the Allen Superior Court.
Judgment affirmed, with costs.
W. P Breen, for appellants.
A Zollars, for appellee.
Appellants sued the appellee to recover rents alleged to be due them on a lease executed to them by the appellee, in Chicago, in relation to Chicago property. A copy of the lease was made a part of the complaint.
The complaint alleged that on the 2d day of April, 1888, the appellants demised and leased to the appellee the premises therein described, in the city of Chicago, for and during the term beginning May 1, 1888, and ending April 30, 1889, for the sum of one thousand dollars, payable in monthly instalments of eighty-three dollars and thirty-three cents each month, beginning on May 15, 1888, and continuing on the 15th day of each succeeding month; that appellee failed to pay the instalments due on the 15th days of September, October, November, December, 1888, and January, February, March, and April, 1889; that said instalments, amounting to seven hundred dollars, remained wholly due and unpaid; that appellee, by the terms of said lease, covenanted and agreed to pay attorney's fees for the enforcement of the same; that one hundred dollars is a reasonable attorney's fee for the collection of said rent, the services of an attorney being reasonably worth that sum. Demand for judgment, etc.
Appellee answered in two paragraphs. Appellants demurred to each paragraph, which was overruled as to the first paragraph, and sustained as to the second paragraph, to which ruling exceptions were taken by each party.
The cause was submitted to a jury, but before proceeding with the trial appellants moved the court for leave to open and close the cause, which motion was overruled, and exception taken, and the right to open and close was given to the appellee.
The jury returned a general verdict for the appellee, with answers to interrogatories submitted to them by leave of the court. On appellee's motion judgment was rendered in his favor upon the verdict of the jury, and thereupon the appellants filed their motion for a new trial, which was overruled, and exception taken.
Two errors are assigned for the reversal of the judgment:
First. The court erred in overruling the demurrer to the first paragraph of the answer.
Second. The court erred in overruling the motion for a new trial.
The first question discussed by counsel for appellants is the alleged error of the court in overruling the demurrer to the first paragraph of the answer, which answer was substantially as follows, viz.: Appellee admitted the execution of the lease sued on; that the rent had not been paid for the several months as alleged in the complaint, and also admitted, and waived proof upon that point; that, if appellants were entitled to and recovered anything in the action, they were entitled to recover $ 100 as attorney's fees, as alleged in the complaint, but alleged that the appellee went into the premises therein described, and paid appellants one month's rent, which became due May 15th, 1888, according to the stipulations in said lease; that in carrying on his business of a meat market he occupied said premises for nearly one month, but before the expiration of one month from the time of such entry appellee had an opportunity of selling out his business to one Martin L. Bulger, and that he agreed with said Bulger to sell said business to him on condition that his tenancy could be so cancelled, surrendered and terminated as to release the appellee from all liability to the appellants under said lease sued on in this action; that the appellants were informed of said negotiations between the appellee and said Bulger, and of the conditions so insisted upon by the appellee, and with such knowledge they agreed they would accept the surrender of said premises, and release the appellee from all liability under said lease, and accept said Bulger as their tenant under the same terms and conditions as those specified in said lease under which the appellee entered, being the same lease sued on in this action; that, after said agreement on the part of said appellants, appellee sold out said business to said Bulger, and surrendered to him the possession of said premises, and that he would not have made said sale, nor so surrendered said premises, but for the said agreement of said appellants, of all of which they had knowledge when they made said agreement. Wherefore, etc.
Counsel for appellants assumes in argument "that the answer in question was bad, because it was based upon an agreement to accept a surrender of premises under a lease which imports no consideration, and which therefore could not bind the appellants, and that it is not averred that appellants accepted a surrender of the premises from appellee, but that they agreed to accept such surrender; that a parol agreement for a surrender of a lease, unless based upon an independent consideration, is void."
It may be proper to say that the lease which was filed with and made a part of the complaint does not appear to have been under seal. We do not think the authorities cited by appellant sustain the position assumed, in support of which counsel for appellants refers us to Wood Landlord and Tenant, section 492, and Coe v. Hobby, 72 N.Y. 141.
There is nothing in these authorities to support appellants' claim. In section 492, supra, it is said: "But a parol agreement between the parties to a lease under seal, reducing the amount of rent, does not amount to a surrender, and, unless founded on an independent consideration, is void."
The answer does not raise the question of reducing the rent by parol. The question presented by the answer is an absolute surrender by the lessee, and an acceptance and release by the lessor.
In the case of Coe v. Hobby, supra, nothing was held except that a parol agreement for a reduction of rent specified in a lease under seal and unsupported by consideration was void, the tenant remaining in possession. It is clear from this case that it was decided upon the ground that the alleged agreement between the landlord and tenant amounted to nothing more than an agreement for the reduction of the rent. It was further said in that case: "The conclusion was that a valid parol lease, since the statute of frauds, might produce a surrender in law, and that the true rule was as laid down in 2 Starkie's Ev. 342, that the taking a new lease by parol is, by operation of law, a surrender of the old one, although it be by deed, provided it be a good one, and pass an interest according to the contract and the intention of the parties."
As we have said, the lease in suit, as appears from the complaint, was not under seal. That being the fact, the authorities seem clear that such a lease may be released by parol. Rhodes v. Thomas, 2 Ind. 638; Ward v. Walton, 4 Ind. 75; Knarr v. Conaway, 42 Ind. 260; Stockton v. Stockton, 40 Ind. 225.
It has also been held in the case of Rigsbee v. Bowler, 17 Ind. 167, that a subsequent verbal agreement, changing a previous written agreement, is valid, and may be proved by parol in a case where the original contract might have been made by parol.
The lease in question was but for one year. It might have been made by parol, and it might have been surrendered by parol. A verbal agreement changing the provision of the lease would have been valid, and we think it follows that a verbal agreement to release the tenant was valid and effectual to defeat an action for rent by...
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