Donahoe v. Rich

• Decision Date: 27 October 1891
• Citation: 28 N.E. 1001,2 Ind.App. 540
• Parties: Donahoe et al. v. Rich.
• Court: Indiana Appellate Court

2 Ind.App. 540

28 N.E. 1001

Donahoe et al.

v.Rich.

Appellate Court of Indiana.

Oct. 27, 1891.

Appeal from superior court, Allen county; A. A. Chapin, Judge.

Action by Michael A. Donahoe and others against Sandford Rich for rent alleged to be due upon a lease. Judgment for defendant. Plaintiffs appeal. Affirmed.

W P. Breen, for appellants. A. Zollers, for appellee.

ROBINSON, J.

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 $1,000, payable in monthly installments of $83.33 each month, beginning on May 15, 1888, and continuing on the 15th day of each succeeding month; that appellee failed to pay the installments due on the 15th days of September, October, November, December, 1888, and January, February, March, and April, 1889; that said installments, amounting to $700, 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 $100 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 exceptions taken.

Two errors are assigned for the reversal of the judgment- First, the court erred in overruling the demurrer to the second 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 second 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 15, 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 canceled, surrendered, and terminated as to release the appellee from all liability to the appellants under said lease, and 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 assume 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 appellants sustain the position assumed, in support of which counsel for appellants refer us to Wood, Landl. & Ten. § 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 laid down in Starkie, 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 passes 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....