Hammond Sav. & Trust Co. v. Boney

• Decision Date: 08 January 1915
• Docket Number: No. 8384.,8384.
• Citation: 107 N.E. 480,61 Ind.App. 295
• Court: Indiana Appellate Court
• Parties: HAMMOND SAVINGS & TRUST CO. v. BONEY.

61 Ind.App. 295

107 N.E. 480

HAMMOND SAVINGS & TRUST CO.

v.BONEY.

No. 8384.

Appellate Court of Indiana.

Jan. 8, 1915.

Appeal from Superior Court, Porter County; Harry B. Tuthill, Judge.

Action by the Hammond Savings & Trust Company against Mathias Boney. Judgment for defendant, and plaintiff appeals. Affirmed.William J. Whinery, of Hammond, for appellant. McMahon & Conroy, and McAleer Brothers, all of Hammond, for appellee.

CALDWELL, P. J.

It is conceded by appellant that the only question presented by appellant on this appeal is that the decision and finding of the court is not sustained by sufficient evidence, and is contrary to law. There is no great conflict in the evidence. The radical difference between the parties is respecting its legal effect.

The facts are substantially as follows: On January 1, 1907, and at all other times mentioned in the record, Anton H. Tapper was the owner of a certain business block in the city of Hammond, consisting of three stories and a basement; on said day Tapper, by an instrument in writing, leased the ground floor of said block to the McAvoy Brewing Company of Chicago for a term of three years, ending January 1, 1910. In February, 1907, said brewing company, by parol and with the consent of Tapper, sublet said room to appellee, who thereupon entered into possession, and used said room in the business of operating a saloon for the retail of intoxicating liquors. The fixtures and furnishings were owned by said brewing company. The lease so executed to said brewing company contained the following provisions:

“At the expiration of this lease, or on failure to pay rent when same is due, or on failure to comply with any of the conditions of this lease, the same shall terminate at once, without notice, and the said Anton H. Tapper, his representatives and assigns may enter on and take possession of said premises, and expel the occupant thereof, without in any wise being a trespasser, and a failure of said Anton H. Tapper to take possession of said premises at the time aforesaid, shall not estop him from afterwards asserting said rights, and the occupation of said premises by the said tenant after the expiration of said lease, or the forfeiture thereof, shall give him no rights as tenant, but he may be expelled at any time without notice.”

At the time of the execution of the lease, Tapper indorsed on the back of it his signed consent that the room might be sublet at any time within the granted term. On July 8, 1909, Tapper executed to appellant an instrument in writing, by which he leased said room to appellant for a term of 10 years, commencing January 1, 1910, to be used in conducting a banking and trust company business. This lease was properly executed and acknowledged before a notary public, and was duly recorded in the recorder's office of Lake county on the 27th day of July, 1909. Prior to January 1, 1910, Tapper notified the brewing company by letter that he expected the room to be surrendered at the expiration of the company's lease on January 1, 1910. Appellee apparently had knowledge that such notice had been given, and prior to said date negotiated with Tapper and said company with a view to leasing another room owned by the former, and on which the latter apparently had some claim. The question of the procuring of such other room by appellee remained in doubt for some time, and resulted finally in its being leased to another party. Appellee insisted that he had made some sort of an arrangement by which he was to occupy the room in question after January 1, 1910. He claimed that when the brewing company sublet the room to him, its agent stated that he might occupy it indefinitely if the rent was paid. He had actual, as well as constructive, knowledge of the execution of the 10-year lease to appellant, but did not claim that any arrangement was made with appellant for the occupancy of the room by him after January 1st. At the trial, appellee testified that Tapper in January, 1910, gave him permission to occupy the room after the first of that month. The brewing company refused to accept the installment of rent for January, and thereupon on two occasions, appellee tendered such installment to Tapper, who refused it. There was evidence that in January, Tapper, on several occasions, demanded that appellee vacate the room. Appellee's somewhat cloudy claim to the right to occupy said room is made rather more definite by an affidavit filed by him in this proceeding, in support of his motion to dissolve a temporary restraining order, hereinafter mentioned, wherein he stated, in substance, that after January 1, 1910, he was in possession of said room pursuant to an oral agreement made with said brewing company and a subsequent oral agreement made with Tapper; that by the former he leased said room from said brewing company for three years, with the privilege of five, “according to the terms of the lease made by and between the said Anton H. Tapper, the owner thereof, and the said McAvoy Brewing Company”; that, having later ascertained that the lease to the brewing company was only for the term of three years, and consequently that the company did not have the power to sublet the room for a longer term, there was an agreement made between him and Tapper by which they would arrange “as between themselves, for the rent of the premises until the 1st day of February, 1910,” being the time of the expiration of his county license to retail intoxicating liquor.

Before proceeding further with the statement of facts, it will be well to determine appellee's position relative to said room, and his right in the premises after January 1, 1910. The lease to the brewing company was for the definite term of three years, terminating January 1, 1910, at which time it expired without notice. Section 8059, Burns 1914. Said brewing company could not transfer to appellee any greater interest in said room than it held of Tapper, and hence appellee's term held of said company could not extend beyond January 1, 1910. In that month, when appellee apparently claims that he procured some new right in the premises by virtue of an oral understanding with Tapper, he had both actual and constructive knowledge of the lease executed by Tapper to appellant, and hence any such new right was subject to said last lease named, and could not be successfully maintained as against appellant.

[1] Moreover, by said affidavit filed in aid of said motion to dissolve the restraining order, appellee asserted under oath that such new right, if any, extended only to February 1, 1910. Such assertion is binding on appellee as an admission in this proceeding. Templer v. Lee, 103 N. E. 1090. It follows that at least after February 1, 1910, appellee's right to hold said room had terminated, and that at such time, if not before, a proper proceeding to oust him could have been successfully maintained. The evidence is not strong enough, however, to warrant us in holding that appellee was actuated by bad faith in endeavoring to hold possession of said room. No such proceeding was brought. On the contrary, continuing our statement of facts, on or about February 1st said brewing company removed from said room said fixtures, under a writ of replevin, leaving certain personal property belonging to appellee, consisting of barrels and kegs containing liquor, an assortment of bottles, chairs, linoleum, cigars, etc. In the early part of February, appellee was not regularly at his place of business. He was there a portion of each day, and always in the evening. There is some confusion in the record as to when his license expired. He states in said affidavit that it did not expire until February 1st. At that time he had pending an application for a license to retail liquors, describing said room as the location. He had in said room, cigars, tobaccos, etc., for sale. He and his clerk each carried a key to the room. Tapper at all times retained possession of the basement under said room. In the forenoon of February 4th, Tapper had seen appellee in said room, and later he and his attorney, with a Mr. Hammond, who was appellant's secretary, met by appointment, and proceeded to said room. Finding both the front and rear doors locked, and no one in the room, they proceeded into said basement through an outside door, and thence up an abandoned stairway, forcing off several boards from a trapdoor, and thus entered the room. Tapper then made the statement that he now turned the room over to Hammond. They braced the front door, and Tapper, through the chief of police, procured as watchman for the room a Mr. Boles, who by reason of his size was popularly known as “Big Jess,” and who sometimes served as a special policeman. Tapper and Hammond placed Boles in the room with a star displayed on his clothing, and directed him to admit no one except as directed by them. Tapper subsequently paid Boles for his services. Boles went on guard in the forenoon, and thereupon certain workmen, called by Hammond, proceeded to tear up the floor and Tapper removed some partitions, preparatory to rearranging the room for banking purposes. Tapper engaged a drayman to remove appellee's said property and place it in storage. About 2 o'clock, appellee learned of said occurrences, and came to the room. Failing to gain admittance by the front door by reason of its being braced, he went to the rear door, where the drayman was loading his said property. Appellee attempted to enter by the rear door, but was informed by Boles that he could not come in. On appellee's persisting, Boles forcibly pushed him away from the door and prevented him from entering. Appellee then, having consulted a lawyer, procured to be issued, on a charge of trespass made by him, what are called “John Doe warrants.” In the meantime Boles had braced the back door also. Shortly thereafter, a constable, bearing said warrants, and accompanied by appellee and several other persons, two of...