Gaffey v. Northwestern Mutual Life Insurance Company

• Decision Date: 02 March 1904
• Docket Number: 13,418
• Parties: HERBERT H. GAFFEY v. NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY ET AL
• Court: Nebraska Supreme Court

98 N.W. 826

71 Neb. 304

HERBERT H. GAFFEY v. NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY ET AL

No. 13,418

Supreme Court of Nebraska

March 2, 1904

ERROR to the district court for Lancaster county: EDWARD P. HOLMES JUDGE. Reversed with directions.

Reversed and remanded with directions.

Charles O. Whedon, for plaintiff in error.

Hall & Marlay, contra.

LETTON C. DUFFIE and KIRKPATRICK, CC., concur.

OPINION

LETTON, C.

This action was begun by the Northwestern Mutual Life Insurance Company of Milwaukee, a corporation, George Woods and Mark Woods, as plaintiffs, against Herbert H. Gaffey, as defendant. The petition alleged, in substance, that the plaintiff corporation is the owner of the building in the city of Lincoln, known as the "Burr Block." That the east basement room of the building has been let to the plaintiffs Woods for the term of six years, and no other persons have any right to the possession thereof. That the defendant Gaffey has broken into said room and, unless restrained by the court, will again break into it and deprive the plaintiffs of the use and possession of said property. The prayer is that the defendant be enjoined and restrained from breaking into said east basement room in the Burr Block, from keeping the plaintiffs out of their property, or in any manner interfering with the plaintiffs or their property, and that at the final hearing of the case the injunction may be made perpetual. A temporary injunction was granted enjoining the defendant as prayed. The defendant's answer, in substance, is as follows: that he admits the Northwestern Mutual Life Insurance Company is the owner of the building, and denies every other allegation of the petition; and for a cross-petition alleges that, on or about the first day of March, 1892, he leased from the then owners of said building the room over which the controversy in this case arises, for a term of three years. That, at the expiration of the said three years, said lease was renewed for a second term of three years, and so on until the last day of February, 1901, when he entered upon the fourth term of three years, which will expire on the last day of February, 1904. That he has been in the exclusive possession of said premises. except as hereinafter stated, as tenant of said owners and of their grantee, the insurance company, plaintiff herein. He alleges that the insurance company desired to raise the floor of the room above his, and it requested the defendant to remove a portion of his stock of goods into a room underneath the sidewalk, which he did to accommodate the insurance company, and that the said plaintiff company then occupied a large portion of his said room with its appliances for raising the floor. He alleges that the plaintiffs Woods occupied the room immediately overhead as real estate agents and live stock dealers for about three years, and that the changes made by the plaintiff insurance company in the building deprived the plaintiffs George and Mark Woods of the room they had previously occupied. That the insurance company and the Woods Brothers, on the 22d day of July, 1902, conspired together to eject him; and, when this defendant was absent from his room, they went with a force of men into said room, forcibly ejected the defendant's clerk, and put out of said room all the property belonging to the defendant' except the office desk, safe and a chair; took the lock off the door, put another lock on and locked this defendant out of said room; and that ever since said date the plaintiffs have kept the said George Woods and Mark Woods in said room, and repeatedly put out the defendant's clerk and interfered with defendant's occupation of said room. That, after the plaintiffs had obtained possession wrongfully as aforesaid, they began this action, well knowing the falsity of the petition; and by their actions in ejecting the defendant, removing his goods, etc., the defendant has been damaged $ 10,000. He prays that the restraining order may be dissolved; that the plaintiffs' action may be dismissed; that a mandatory injunction may be awarded requiring the said George Woods and Mark Woods forthwith to vacate the premises; to restore to the defendant all the property which they removed from there, for the sum of $ 10,000 damages, and for a perpetual injunction against the plaintiffs to enjoin them from interfering with the defendant's possession of said basement room. A supplemental answer and petition were afterwards filed, a recital of the contents of which is not essential to the determination of the questions at issue here. The plaintiffs filed a reply alleging, in substance, that the defendant was only a tenant from month to month until in the month of May, 1902, at which time he vacated said room, surrendered the premises and turned the same over to the plaintiff insurance company, since which date he has not been a tenant of said room; that he notified the insurance company, when he vacated said premises, that he would not pay the rent they were demanding, and they could rent to some one else, and that as soon as the repairs were completed said insurance company rented said room to the plaintiffs Woods. That the defendant never asserted any rights to said room until after he learned the insurance company had rented the room to George and Mark Woods. The plaintiffs ask that the defendant's cross-bill may be dismissed, and that the temporary injunction heretofore granted may be made perpetual. A demand for a trial to a jury was made by the defendant, which was refused by the court, and this refusal is assigned as error. The case was tried to the court, and the court made the following findings of fact and conclusions of law, and entered the following judgment:

"(1) That the plaintiff is a corporation, as alleged in its petition, and is the owner of and in possession of lots seven (7) and eight (8), in block forty (40), in the city of Lincoln, Lancaster county, Nebraska, and that the building situate thereon is known as the 'Burr Block.'

"(2) That on or about the first day of March, 1892, the said defendant, Herbert H. Gaffey, leased from C. C. and L. C Burr, being then the owners of said described premises, the east basement room of said building for a period of three years, at an agreed rental of $ 25 a month, and that the said defendant continued in uninterrupted possession of said premises up to and about the time of the controversy arising in this case.

"(3) That the plaintiff herein became the owner of said premises on or about the day of , and took possession thereof, but that for a long time prior thereto said premises were in possession of its receiver, appointed by the court in the foreclosure proceedings being had upon said premises, but that during all of said time the said defendant Gaffey was a tenant of such parties, in possession, and remained in the possession thereof up to the time hereinafter described. That the said defendant Gaffey was not made a party in the foreclosure proceedings, but waived all rights thereunder by oral agreement in reference to the occupancy of said east basement room with the receiver thereof, and by oral agreement entered into various and different contracts in regard to the rental thereof, both during the ownership of the said Burrs and the plaintiff herein, and that by reason thereof said written lease herein mentioned, as made with the said Burrs, was abrogated, annulled and vacated, and that at the time of the commencement of this action the said defendant Gaffey was a tenant of the said plaintiff by virtue of an oral agreement, holding possession of said east basement room from month to month, and had no greater claim or rights thereto than herein found.

"4. That, in order that the said plaintiff company might make certain changes and improvements in and about the said premises, the said defendant, Gaffey, voluntarily upon his part, removed from the said basement room, so occupied by him, all of his stock of goods, wares, and merchandise, consisting of plumbing and packing goods, and a general stock of plumbers, steam and gas fitters goods, in which the said defendant was a dealer, and permitted the said plaintiff to enter said basement room for the purpose of remodeling and rebuilding a part of said building.

"(5) That said defendant stored said goods, so removed by him, in a room beneath the sidewalk immediately adjacent to the room so occupied by him, but the said defendant left a portion of his property in...