Habbe v. Viele

• Decision Date: 13 January 1897
• Docket Number: 18,009
• Citation: 45 N.E. 783,148 Ind. 116
• Parties: Habbe v. Viele
• Court: Indiana Supreme Court

45 N.E. 783

148 Ind. 116

Habbe v. Viele

No. 18,009

Supreme Court of Indiana

January 13, 1897

Rehearing Denied May 25, 1897, Reported at: 148 Ind. 116 at 126.

From the Vanderburgh Circuit Court.

Reversed.

J. W Spencer and J. R. Brill, for appellant.

J. E Williamson, for appellee.

OPINION

Howard, J.

This was an action brought by appellee to reform a lease given by her to appellant for a double store room in the city of Evansville. The court found for appellee and entered a decree reforming the lease as prayed for. It is contended that the evidence does not support the finding.

Appellee does not discuss the question raised in appellant's brief, but contents herself with saying that there is evidence in the record to support the finding. She does contend, however, that the appeal is not properly before the court, for the reason that the motion for a new trial in the court below was not filed at the proper time. We do not think the question so raised by the appellee has been properly saved and presented for our consideration. The court entertained and passed on the motion for a new trial without objection or exception by appellee. The record shows that the findings and judgment were had on the last day of the September term of court. The motion for a new trial might, therefore, be made on the first day of the next, or December term. Section 570 Burns' R. S. 1894 (561, R. S. 1881); Evansville, etc., R. R. Co. v. Maddux, 134 Ind. 571, 33 N.E. 345. The motion for a new trial was taken up and presented for the consideration of the court on the thirteenth judicial day of the December term, the parties being present. In the absence of any objection then or thereafter taken to the action of the court in entertaining and passing upon the motion, we must presume in favor of the regularity of such action, and, consequently, that the court found the motion to have been filed at the proper time. See World's Fair, etc., Co. v. Gasch, 162 Ill. 402, 44 N.E. 724.

Did the error in fact exist, the attention of the trial court should have been called to it that it might be corrected. Moreover, if the party excepting were still dissatisfied with the ruling, the alleged error should be shown to this court, as in Emison v. Shepard, 121 Ind. 184, 22 N.E. 883, to which we are cited by counsel.

It appears that appellee, who was represented by her husband, Charles Viele, as agent, was the owner of the double store in question, and that the same had been rented for many years to J. F. Lindley & Son, and to their predecessors, at an annual rental of from $ 1,500.00 to $ 2,400.00, the latter amount being the rental at the date of the proceedings. The Lindley lease was in parol, and had two years to run from January 1, 1895. The Lindleys desiring to quit business procured appellant to take the lease off their hands. To this appellant consented, and Charles Viele drew up a written contract by which the premises were turned over to appellant for the unexpired term of the lease at the rental of $ 2,400.00 a year. Appellant was engaged in the clothing business, and it seems that he had a rival whose place of business was next door to appellee's store, and who, about the time when the negotiations were completed, offered the Lindleys a bonus for the unexpired term of the lease. Charles Viele, however, told Lindley that the negotiations with the appellant had proceeded too far, and the offered bonus was rejected. At the time of accepting appellant as tenant, it was agreed between appellant and appellee that appellant was to have the store room at the end of the Lindley lease, "for an additional term, at a fair and reasonable rental." Soon after this contract was made, Viele went to appellant with a proposition that appellant should continue as tenant after the expiration of the Lindley lease, that is, after January 1, 1897, saying at the same time, that he "had an offer of five years' extension to the present term at $ 3,000.00 a year rent, and $ 500.00 bonus." Appellant asked who had made that offer, but Viele answered: "Do not ask any questions." Appellant then said he would have to have time to consider the proposition. About a week's time was agreed to, Viele leaving his proposition in writing: "Five years' extension at $ 3,000.00 per year, and $ 500.00 bonus."

Viele returned at the appointed time. Up to this, there is little or no discrepancy in the evidence. Mr. Viele's testimony now continues: "I went to Mr. Habbe and asked him what he had decided to do. He hesitated a moment and said he would accept my proposition. I then asked him who his attorneys were, and who he preferred should draw the lease. He said [after naming the attorneys] he was not particular about who drew the lease. I told him I had been renting property and writing leases for forty years or more and would, if agreeable to him, prepare the lease myself and save an attorney's fee. I went home and drew the lease and gave the same to Mr. Sonntag to have a type written copy made, and he made the same, took the copy with the original to Mr. Habbe, after having taken them both to my wife, Mary J. Viele, [the appellee], and having her sign and acknowledge the same. Mr. Sonntag returned the original lease in my handwriting to me, and left the typewritten copy with Mr. Habbe. I had the lease recorded."

Appellant's version of these negotiations is as follows: "Mr. Viele came to me and said he had a proposition submitted to him for the rental of that building from the first of January, 1897, for five years at $ 3,000.00 a year and $ 500.00 bonus. I asked him whose proposition it was, and he said, 'Ask no questions.' * * * I had rather a heated conversation with Mr. Viele. I told him that I could not give him an answer. I said 'Mr. Viele, do you recollect that conversation I had with you, that I was to be the continuous tenant at a fair and reasonable rental? I believe I know the reason this proposition has been submitted to you. Mr. Viele don't you know that if you took me out of competition for this building that you could not get $ 2,400.00 a year for it, much less $ 3,000.00 a year for it, and that it was not right to treat a tenant like that?' 'Well,' he said, 'a man has got to do the best he can.' I did not take this in good faith. This is about all I said to Mr. Viele at that time. Now when he came to me about this building, I guess that I gave him to understand that the proposition he submitted to me was impossible, and I spoke of the expense of moving, and that I would not be out of there until the 15th of August, and said that I would have to have time to consider that. And a short time after that Mr. Viele came to my store at 209 Main street, and he began talking about the building, and I was telling him about the expense of repairs and moving; and then he said: 'Mr. Habbe, you may have the building the first two years at $ 2,000.00 per year, and for five years after that at $ 3,000.00 per year, and a bonus of $ 500.00.' Well, in any event, Mr. Viele made this agreement. That is the second time he came back. The proposition was $ 2,000.00 a year for two years, $ 3,000.00 for five years, and $ 500.00 bonus. I calculated that mentally and knew that my rent would be raised, but that I would get a much longer term on the building. I told Mr. Viele that the proposition was acceptable. * * * Mr. Sonntag came down there with the new lease in Mr. Viele's own handwriting and brought a typewritten copy, each signed by Mrs. Mary J. Viele, and inasmuch as this was a term of seven years' lease, I took the two leases and read them carefully and compared them, and found that they set out the contract exactly as I understood it, and just as Mr. Viele had stated it to me. I then signed them both; and I believe that Mr. Sonntag took them away with him, I think for the purpose of having something done to them by a notary public, to put his seal on them. When he brought it back I gave him a check for $ 500.00 and that completed the lease."

When the time came for paying the first month's rent, that from January 1, 1895, appellant drew his check for $ 166.66 being at the rate of $ 2,000.00 a year: while appellee drew a receipt for $ 200.00, being at the rate of $ 2,400.00 a year. This began the controversy which...