Grigsby v. Western Union Tel. Co.

• Decision Date: 18 July 1894
• Citation: 5 S.D. 561,59 N.W. 734
• Parties: GRIGSBY, Plaintiff and respondent, v. WEST. UNION TELEGRAPH CO. Defendant and appellant.
• Court: South Dakota Supreme Court

5 S.D. 561, 59 N.W. 734 (1894)

GRIGSBY,

Plaintiff and respondent,

v.WEST. UNION TELEGRAPH CO.

Defendant and appellant.

South Dakota Supreme Court

Appeal from Circuit Court, Minnehaha County, S.D.

Hon. Frank R. Aikens, Judge

Affirmed

Bailey & Voorhees,

George H. Fearons

Attorneys for appellant.

M. Grigsby

Davis, Lyon & Gates

Attorneys for respondent.

Opinion filed July 18, 1894

KELLAM, J.

This is an action to recover rent alleged to be due from appellant, as lessor, to respondent, as lessee. From a judgment in favor of respondent, and from an order overruling a motion for a new trial, appellant brings this appeal. The facts seem to be as follows: On July 13, 1888, appellant leased from one Isaac Emerson a part of the building known as the “Emerson Block,” in the city of Sioux Falls, for a term ending May 1, 1890, at the monthly rental of $25 per month. Under the lease with Isaac Emerson, appellant occupied the demised premises as a telegraph office, and continued such occupation during the term of the lease. After the expiration of the lease with Emerson, on May 1, 1890, appellant continued in possession of the premises, and for the following two months paid to Emerson rent at the rate of $25 per month. Some time prior to July 1, 1890, respondent became the owner of the Emerson block, and came into possession of the property upon July 1, 1890. Upon July 1, 1890, respondent went to the office of appellant, in Sioux Falls, and signed a renewal of the Emerson lease for one year. This renewal was indorsed upon the back of the Emerson lease, and had been executed by the vice president and secretary of appellant in New York City, under date of May 19, 1890. Subsequently, and upon the same day that he signed the renewal, or upon the next day thereafter, respondent went a second time to the office of appellant, and inquired of the then manager of appellant whether he had yet forwarded the lease to the officers of appellant. The manager replied that he had not yet forwarded it, and respondent then requested to be allowed to erase his name from the renewal, upon the ground that the adjoining office was rented at a larger amount than appellant had been paying, and that appellant should pay $35 per month, instead of $25, as, under the Emerson lease, it had previously paid. Appellant’s manager consented to allow respondent to erase his name from the renewal, and, after respondent’s signature had been so erased, gave respondent the address of the superintendent of appellant in Minneapolis, and advised respondent to write to him in regard to the matter. Respondent, upon July 3, 1890, wrote to the superintendent of appellant, in effect, that he should require $35 per month if appellant should longer occupy the premises. During the last of July or the first of August, appellant’s local manager called respondent into the office, and told him appellant would accept his proposition, and take the premises for a year provided respondent would make certain repairs. That after examining with said agent the places where said repairs were to be made, respondent agreed to make them, and the said agent then said it was all right,—they would keep the offices for another year,—and on that day paid respondent $35, as rent for the month of July. That the agent, on that day, on or about the 1st of August, informed respondent that the company always prepared the leases at the home office; that he would notify them of the contract made; and that the leases would come for signature at some time in the future. That, subsequent to said 1st of August, said agent informed respondent that said leases had come, and that, when he had time, he could come into the offlce and sign them. And that afterwards the agent mentioned again that the leases had not been signed, and the respondent again said that he would come in when he thought of it and had time to sign them. Appellant continued in possession of the premises, paying rent as agreed,—$35 per month,—until the 1st of December, 1890, when they vacated the premises without the consent of respondent.

This statement of facts, conceded or plainly proved beyond contest, should be qualified by saying that appellant claims that the evidence does not show an executed verbal lease, but simply an agreement for a written lease, to be subsequently executed, and that, such lease never having been executed, it never became operative, but the transaction remained an unexecuted verbal agreement for a lease, We think there is no question as to the legal effect of the evidence. The testimony of respondent was that, about the 1st day of July, he notified appellant’s local agent or manager that he should require $35 per month rent, instead of $25, as they had been paying the former owner. The agent suggested that he should write the company about it, and gave respondent the address of the superintendent. That he at once wrote him. The letter was in evidence, and concludes as follows: “Shall therefore require $35 per month if you occupy the premises longer.” Shortly after, and about August 1st, the agent called respondent into the office. “He spoke about the letter I had written to the company. He said they would take premises for another year, at $35 per month, provided I would make certain improvements.” He further testified:

“I never saw the new lease. … The agent notified me that it had been sent on by the company for my signature. At the time he paid the month’s rent for July, it was the time he showed me through the premises, and pointed out what he wanted done, and said they would take the building for another year at $35 per month on my agreement to make the improvements, and that he would pay one month’s rent, which was then due, that the company always prepared the leases in the home office, and he would let me know when it came down for my signature. After that,— I think it was on the street,—he called me one side, and told me the lease was there, and to come over and get it, and I said ‘all right’; and once afterwards he spoke to me about it and wanted I should come over after the lease. I said, ‘I will, the first time I am not busy and think of it.’ I never...