Dondero v. Turrillas

• Decision Date: 04 October 1939
• Docket Number: 3269
• Citation: 94 P.2d 276,59 Nev. 374
• Parties: DONDERO et al. v. TURRILLAS et al.
• Court: Nevada Supreme Court

94 P.2d 276

59 Nev. 374

DONDERO et al. v. TURRILLAS et al.

No. 3269

Supreme Court of Nevada

October 4, 1939

Appeal from Second Judicial District Court, Washoe County; B. F Curler, Judge.

Action by Fioro Nicola Dondero and another, as executors of the last will and testament of Arcangelo Dondero, deceased, and others, against Felix Turrillas and others for restitution of certain premises, wherein defendants answered and asked that the plaintiffs be required to perform in accordance with an alleged agreement for a lease. From an adverse judgment and order, the plaintiffs appeal.

Affirmed.

Morley Griswold and George L. Vargas, both of Reno, and George L Sanford, of Carson City, for appellants.

W. M Kearney and Robert Taylor Adams, both of Reno, for respondents.

ORR Justice.

Appellants brought an action in the Second Judicial District Court of the State of Nevada, asking restitution of certain premises hereinafter described. Respondents answered and asked that appellants be required to perform in accordance with what they alleged to be an agreement for a lease. The trial court entered its judgment ordering appellants to execute a lease in the form prescribed by the court in its findings. Appellants refused to execute the lease as prescribed, and thereupon the clerk of the court, responsive to an order thereof, executed the lease and delivered it to respondents. From the judgment and order of the lower court this appeal is taken.

The facts, insofar as they are necessary to be stated, are:

On May 29, 1926, Arcangelo and Emilia Dondero, husband and wife, leased to Felix Turrillas and wife and John Etchebarren and wife, for a term of ten years, the premises known as the Commercial Hotel, consisting of lots and buildings thereon, at 207-209 N. Center Street, Reno, Nevada. Subsequent to the making of the lease Arcangelo Dondero and Emilia Dondero were divorced, and Arcangelo Dondero conveyed a one half interest in the premises to Emilia Dondero, and she now holds such half interest. Later Emilia Dondero married Dominico Parmigiano; they are now husband and wife. Arcangelo Dondero died in 1931 and left by will his undivided one half of said property to his sons, Fioro and Zidi, as a life estate for and during their lives, and then to their sons, if any. The will named Fioro and Zidi as executors. They qualified and remain as executors of the estate.

The lease of 1926 was in 1931 assigned to The Northern, Inc., a corporation. And said lease was in 1936 extended to February 1, 1938, a period of twenty months. The extension was given by Fioro and Zidi Dondero, executors of the Arcangelo Dondero Estate, for a one half interest, and by Emilia Dondero Parmigiano for the other one half interest.

For some months just prior to the time the extension was to expire, appellants and respondents discussed the question of a further renewal or a new lease. As the time for the expiration drew near, Turrillas became concerned and was insistent that an agreement be reached or a renewal refused, and in case of a refusal, that such be made in sufficient time to allow him to remove his fixtures and other property from the premises.

On the 15th day of January, 1938, Zidi Dondero and Mrs. Parmigiano talked to Turrillas, and later in the day Mrs. Parmigiano telephoned Fioro Dondero, who is a resident of Carson City, to come to Reno. Upon the arrival of Fioro in Reno he met his mother and they went to the home of Zidi and had a discussion with him. Later that evening Fioro and Mrs. Parmigiano went to the premises occupied by Turrillas, at which time the question of the new lease was discussed. As a result of the conference, a certain writing was made by Fioro Dondero and signed by Fioro and Mrs. Parmigiano, and this writing was delivered to Turrillas with the understanding that the said writing was to be, on Monday, the 17th, delivered to Morley Griswold. The agreement is as follows:

"January 15, 1938.

"Morley Griswold

"Attorney at Law

"Reno, Nevada.

"Dear Morley:

"We have reached an agreement on this lease of the building at 207 and 209 North Center Street and the one story bldg in the rear, for a term of ten years, beginning on February 1, 1938. The rental shall be at the rate of $350.000 per month for the first five years and $400.00 per months for the last five years of the term of the lease. Felix Turrillas the party who is to rent the premises is to pay you on Monday January 17, 1937 the sum of Nineteen Hundred fifty & no/100 ($1950.00) Dollars. Of which sum $350.00) is to apply as rental for the month of February 1938 and sixteen Hundred &no/100 ($1600.00) is to apply as security of the lease and is to be applied to the last four months of the term of the lease if the terms and provision of the lease are faithfully performed and if not faithfully performed the said sum of sixteen hundred dollars shall be forfeited to the lessors. Some of the provisions of the lease are to be as follows. Felix Turrillas is to make permenant improvements to the premises during the next few months; to include a new front and removal of the posts in the ground floor and place substantial beams and to raise the ceiling to its former level to the extent of about 2 to 3 inches. In other words, at the time some of the old posts in the ground floor were removed the ceiling dropped at the rear end of the building to the extent of about 2 to 3 inches. The improvements are to be made in in good substantial and workman like manner; plans to be made by a certified architect & approved. Felix is to close the deal Monday, January 17, 1937 by placing in your hands the ($1950.00) above specified. If this sum is not paid then the option is void and of no value. You draw up the lease papers on about the same order of the old lease, the one made by my father and mother a copy of which I will mail to you special delivery Sunday January 16, 1938. Felix has agreed to make improvements at his own expense and therefor any such improvements are to remain the property of the lessors. We are to be priviledged to place a non liability notice on the building & etc. My mother and Felix Turrillas will be at your office on Monday January 17, 1938 to close the deal. Trusting I have made this matter clear I remain

"Yours truly

Emilia Dondero in Parmigiano

F. N. Dondero."

The testimony further discloses that Fioro, at the time of signing the memorandum, represented that he was acting for his brother and his co-executor, Zidi. This was testified to by Felix Turrillas, Frank Normandy and Louis Sarasua, and they also testified that the statement was made in response to a query made by Turrillas as to the whereabouts of Zidi. The testimony is to the effect that upon the making of such inquiry Fioro produced from his pocket a writing which he stated to be a power of attorney from his brother Zidi. The paper was read by Turrillas and returned to Fioro. The witnesses Normandy and Sarasua did not read the writing, but heard the statements of Fioro. Turrillas testified that he had read the writing and that it stated: "Whatever you, Fioro Dondero, and my mother, Mrs. Parmigiano, agree with Felix Turrillas is O. K." Turrillas testified that there were two copies of the memorandum hereinabove set out, one was handed to Turrillas, and the other was retained by Fioro, to be by him sent to Mr. Griswold.

On Monday, January 17, 1938, Turrillas, Zidi Dondero and Mrs. Parmigiano met at the office of Mr. Griswold and had a conference with him, at which time the question of drawing up a form of lease was discussed. Mr. Griswold testified that he at the time had in his possession a letter from Fioro Dondero, he, Fioro, not being present; which said letter, according to the memory of Mr. Griswold, gave instructions as to Fioro's desires in the preparation of a form of lease. The $1950 mentioned in the memorandum was by Turrillas delivered to a stenographer in Griswold's office, on Monday morning, January 17, 1938. Mr. Griswold, being busy at the time, informed the parties that he would draw a lease within a few days and would advise them when the draft was ready.

About four weeks later Turrillas received a form of lease from Griswold, which he, Turrillas, refused to sign because he did not believe it conformed to the memorandum and the terms contained in the old lease and conversations had with Fioro and Zidi Dondero and Mrs. Parmigiano. Later Mr. Kearney, acting for Turrillas, prepared a form of lease, which was submitted to appellants and which they refused to sign.

In their opening brief appellants present eleven points. Respondent, in his reply, condenses these to six. We like the more ultimate compression of the issues into the three points appellants have made in their closing brief, and will endeavor to dispose of the questions as therein stated.

First it is contended by appellants that a married woman must acknowledge her agreement to lease her separate property.

The first legislative enactment in Nevada touching upon acknowledgments by married women was in 1861, and reads as follows:

"Section 1. Conveyances of lands, or of any estate or interest therein, may be made by deed, signed by the person from whom the estate or interest is intended to pass, being of lawful age, or by his lawful agent or attorney, and acknowledged or proved, and recorded, as hereinafter directed.

"Sec 2. A husband and wife may, by their joint deed, convey the real estate of the wife in like manner as she might do by her separate deed, if she were unmarried.

***

"Sec 19. A married woman may convey any of her real estate by any conveyance thereof, executed and acknowledged by herself and her husband, and certified, in the manner hereinafter provided, by the proper officer taking...