Dunphy v. Bartenbach

• Decision Date: 17 April 1894
• Citation: 40 Neb. 143,58 N.W. 856
• Parties: DUNPHY v. BARTENBACH.
• Court: Nebraska Supreme Court

40 Neb. 143

58 N.W. 856

DUNPHY

v.BARTENBACH.

Supreme Court of Nebraska.

April 17, 1894.

Syllabus by the Court.

1. The sustaining of an objection to an answer which was immaterial to the issues on trial presents no question for review; and this result is not avoided subsequently by copious offers to prove facts entirely outside the scope of both the question and answer to which the objection had already been sustained.

2. Instructions not complained of in the motion for a new trial cannot be reviewed in the supreme court, even though their correctnessis challenged by the petition in error, and in argument of counsel.

Error to district court, Hall county; Coffin, Judge.

Action by George Bartenbach against Patrick Dunphy. Judgment for plaintiff, and defendant brings error. Affirmed.

Thummel & Platt, for plaintiff in error.

Abbott & Caldwell, for defendant in error.

RYAN, C.

The defendant in error obtained judgment in the district court of Hall county against plaintiff in error for the sum of $405, as the balance due on the lease of a certain store room in a building in Grand Island known as the “Bartenbach Opera House.” Originally, this room was, by a contract in writing, leased for five years, commencing with July 1, 1883; and thereunder the plaintiff in error paid the rent until December 1, 1885, when, as defendant in error alleged in his petition, the plaintiff quit and abandoned said premises, and refused further to occupy the same, or pay rent thereon, though repeatedly requested to comply with the terms of the aforesaid lease. In the petition it was alleged that during the portion of the unexpired term remaining after December 1, 1885, the landlord had been wholly unable to lease the said room, and, for such portion that he was able to lease it, the rent was, of necessity, at a lower rate than that agreed in the aforesaid written lease. The prayer of the petition was for judgment for the amount of the alleged shortage, in the sum of $433.15. The contention of the plaintiff in error on the trial was that on or about May 1st he sold out the business carried on in said room to one Honas Kuhlsen, with the knowledge and consent of Bartenbach, the defendant in error, who at that time and place released the plaintiff in error from the aforesaid contract of lease, and then and there that defendant in error accepted said Kuhlsen as his lessee of said premises, and then and there leased said premises to Kuhlsen for $65 per month, payable monthly, and that Kuhlsen took possession of said premises from Bartenbach, to whom Kuhlsen paid the rent up to December 1, 1885, at which time Kuhlsen quit possession. Dunphy sought to prove that this abandonment of the premises was because of Kuhlsen having trouble with Bartenbach, who thereupon ordered him to vacate, while the testimony of Bartenbach is that he never ordered Kuhlsen to vacate, but that Kuhlsen's abandonment was purely voluntary. A receipt introduced in evidence showed payment by Dunphy on January 3, 1885, of the rent up to July 1, 1885. From the date last named until December 1st immediately following, the receipts show that the rent was paid monthly by Kuhlsen. Each receipt was for $65, and, as between Dunphy and Bartenbach, the original lease had fixed the annual rent at $780, so that the amounts paid monthly are of little significance.

The contention of the parties was narrowed down to one proposition, and that is whether or not there was an agreement on the part of Bartenbach to release Dunphy from his obligation under the written lease,--to accept Kuhlsen, thenceforward, as his tenant. On the authority of Bank v. Hanson, 34 Neb. 455, 51 N. W. 1035, it was insisted by the plaintiff in error that the written lease having been surrendered by an agreement between the parties, and the term thereby terminated, and the agreement having been acted upon by both parties, all liability of Dunphy was terminated. On this point the evidence of Mr. Dunphy was as follows: “Q. What transpired between you and him [Kuhlsen], if anything, along in the spring of 1885? A. He came to me, and asked me if I wouldn't do something for him,--he had worked for me a long time; and I asked him what he wanted, and he said he would like to buy the Opera House saloon. Q. Tell what you did,--you and him? A. I finally sold the place to him, and we had everything arranged satisfactory. I says to him, we better go and see Mr. Bartenbach about the lease. So him and me went up to his store, and I told him I had sold the place to Hans, and whether he would take him for the rent or not. Q. You may state whether you and Mr. Kuhlsen, after you made your deal in there, were to see Mr. Bartenbach? A. Yes, sir. Q. What was said and done between you parties? A. I told him I had sold out to him, and whether he would take him for the lease or not; if not, it would stand just as it was, and I would be accountable for it.” Objection was made, in the, language of the record itself, “to anything that was said between this party and Mr. Bartenbach in regard to taking Mr. Kuhlsen for the rent, as being incompetent and immaterial.” The objection was sustained, and an exception taken. This was after the answer had been given. Thereupon, the record shows as follows: “The defendant desires to prove by this witness, and can prove, that at this time Mr. Dunphy, Mr. Kuhlsen, and Mr. Bartenbach, together, had a talk with reference to this lease, and that Mr. Bartenbach said to Mr. Dunphy and Mr. Kuhlsen that ‘it makes no difference to me to whom the building is rented or leased;’ that ‘I would just as soon have Mr. Kuhlsen lease the property as you;’ and ‘at that time, and there, Mr. Kuhlsen and Mr. Bartenbach made an agreement in my presence that Mr. Bartenbach was to make a lease out in writing to Mr. Kuhlsen, to commence on July 1, 1885, to the expiration of that written lease,--along about the 1st of May, 1885.’ And it was then and there agreed by and between the parties that the original lease should be surrendered, and was then and there surrendered. (Objected to as incompetent, immaterial, and tending to dispute the contents of a written lease.) Court: The objection is sustained, except as to that portion offering to prove that the written lease was at the time surrendered, which may be proved. (To which defendant excepts.)” Notwithstanding the permission of the court, there was no attempt to prove, in any manner, that the written lease was surrendered. Upon this same point the evidence of Mr. Kuhlsen was as follows: “Q. What transpired or happened about that time between you and Mr. Dunphy, if anything? A. Well, I thought I would try-- Q. Just tell what you did? A. I bought the fixtures of Mr. Dunphy for to run the saloon for myself at that place. Q. Did you talk...