Hablich v. Univ. Park Bldg. Co.
| Decision Date | 23 February 1912 |
| Docket Number | No. 22,102.,22,102. |
| Citation | 97 N.E. 539,177 Ind. 193 |
| Parties | HABLICH v. UNIVERSITY PARK BLDG. CO. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Marion County; J. L. McMasters, Judge.
Action by the University Park Building Company against Gus Hablich. From a judgment for plaintiff, defendant appealed to the Appellate Court, and it transferred the cause to the Supreme Court under Burns' Ann. St. 1908, § 1405. Affirmed.Vincent G. Clifford, Winfield S. Moffett, and Adolph G. Emhardt, for appellant. Chas. O. Roemler, H. O. Chamberlin, and L. B. Swift, for appellee.
It appears from the record that on December 1, 1902, appellant, by written instrument, leased from Madeline Maus, “the storeroom and basement under same, situate No. 121 West Washington street, also the room over the rear part of said room, known as room 11, Commercial Block, *** in the city of Indianapolis, *** for and during the term of five years, from the 1st day of January, 1903, with the privilege of five additional years, at a rental to be agreed upon between the parties hereto at least 60 days before the beginning of that term,” at a rental of $106 per month.
Later appellant leased two additional rooms in the same block from Madeline Maus for a period ending at the same time as the other lease and containing the same privilege of renewal. The rent for these rooms was $20 per month, and, by an agreement made later between lessor and lessee, the lessee was to pay $6.25 per month for heat and light furnished. This made a total of $132.25 per month. Before the expiration of the lease, appellee became the landlord of appellant, having taken a 99-year lease of the property from Madeline Maus, and this relation was recognized by appellant.
Appellant and appellee failed to agree as to a renewal of said first lease dated December 1, 1902, to commence January 1, 1903, for five years ending December 31, 1907, and on February 21, 1908, appellee commenced this action for possession of the real estate described in said first lease and for damages for its detention after December 31, 1907, the date said lease ended by its own terms.
Appellant, defendant below, answered in three paragraphs: (1) General denial; (2) that he was lawfully in possession by a renewal of the lease under the option of which he had availed himself, in the manner provided in the original lease; (3) that appellant held over pending negotiations as to the amount of rent, that appellee had demanded rent and recognized him as tenant, that he was therefore lawfully in possession, and that the relation of landlord and tenant existed between appellee and appellant.
Later, on May 3, 1909, appellant filed a supplemental answer setting up that, at the end of one year, being at the end of the year 1908, appellant had surrendered possession, which has been accepted by appellee.
The cause was tried on May 25, 1909, and on May 24, 1909, before the trial, appellant paid into court as a tender to appellee in said cause the sum of $1,272. Said cause resulted in a general verdict in favor of appellee for $2,220. The jury returned with the general verdict answers to interrogatories submitted by the court at the request of appellant.
Appellant moved the court to render judgment on the answers to the interrogatories in the sum of $1,272, in favor of appellee, notwithstanding the general verdict, which was for $2,220. This motion was overruled by the court.
The court also overruled appellant's motion for a new trial and rendered judgment against him on the general verdict. Appellant urges a reversal on the grounds (1) that the court erred in overruling the motion for judgment on the answers to the interrogatories, notwithstanding the general verdict; (2) that the court erred in overruling appellant's motion for a new trial.
Appellant's theory is “that the answers to the interrogatories show that he was lawfully in possession of said real estate, and that, being lawfully in possession, this action which is in tort for possession and damages must have failed except for the fact that he had tendered and paid the rent for the year at $106 per month, the amount named in the five-year lease, which was tantamount to an offer to confess judgment for that amount, and which would entitle appellee to a judgment for that amount.”
Without determining as to the correctness of this theory, we will determine whether or not the answers to the interrogatories are in irreconcilable conflict with the general verdict, for, if not, upon appellant's own theory his said motion for judgment was properly overruled.
[1] All reasonable presumptions are in favor of the general verdict, and none will be indulged in favor of the answers to the interrogatories. The answers to the interrogatories only control the general verdict when the conflict is such that it cannot be removed by any evidence admissible under the issues. Consolidated Stone Co. v. Summit, 152 Ind. 297, 300-302, 53 N. E. 235.
[2] The jury found in the answers to the interrogatories that “there was a privilege of renewal in the first lease,” the one in controversy in this case, “at a price to be agreed upon by both parties;” that appellant continued in possession of the premises described in the first lease after January 1, 1908; that appellee demanded rent from appellant after January 1, 1908; that appellant offered to pay rent after January 1, 1908; that the monthly rental of the premises in the first lease was $106; that appellant tendered appellee $132.25, $106 of which was for the monthly rental of the premises described in the first lease; that appellant notified appellee that he expected to hold over before the expiration of the first lease; that appellant gave possession of the premises described in the first lease on December 31, 1907; and that appellee accepted possession thereof and rented them to another tenant.
[3] There is nothing in these answers of the jury showing that said first lease was renewed for another term of five years, under the terms of said lease. Its renewal depended upon the agreement of appellant and appellee as to the rent to be paid therefor. If no agreement was made between them as to the rent, it was not renewed. 1 Taylor, Land. & Ten. (9th Ed.) § 333, p. 410; Whetstone v. Davis, 34 Ind. 510, 511. True, the jury found that appellant notified appellee before the expiration of said first lease that he expected to hold over. This was not sufficient to renew the lease, nor was it sufficient to show that the relation of landlord and tenant existed between appellee and appellant after the expiration of said lease which was on December 31, 1907.
[4] Appellant, however, contends that, if said lease was not renewed, by holding over after the termination of said lease on December 31, 1907, a tenancy from year to year was created and that the new tenancy was governed by the terms of the old lease except as to duration, citing Ridgeway v. Hannum, 29 Ind. App. 124, 64 N. E. 44;Kleespies v. McKenzie, 12 Ind. App. 404, 40 N. E. 648;Alleman v. Vink, 28 Ind. App. 142, 62 N. E. 461. These cases are not in point for the reason that in each case the tenant held over with the consent of the landlord, without any attempt to change the terms of the lease or any objection thereto by either party. The mere fact that a tenant holds over after the...
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