Haynes v. Union Inv. Co.

• Decision Date: 16 December 1892
• Parties: HAYNES v. UNION INVESTMENT CO. ET AL.
• Court: Nebraska Supreme Court

35 Neb. 766

53 N.W. 979

HAYNES

v.UNION INVESTMENT CO. ET AL.

Supreme Court of Nebraska.

Dec. 16, 1892.

Syllabus by the Court.

1. A lease contained this provision: “Upon the expiration of this lease, and before the surrender of said premises by said parties of the second part, said party of the first part shall purchase and pay for all the furniture, pictures, and fixtures put into said premises by parties of the second part. If said parties cannot agree upon price of said furniture, then party of the first part shall select one man, and the parties of the second part shall select one man, and the men chosen shall select a third, and said three men shall act as arbitrators, and determine the price of said furniture, pictures, and fixtures, and said first party shall pay the price so determined and fixed. The family pictures and furniture belonging to the families of said parties of the second part are excepted according to inventory to be attached to this lease, and all the furniture and fixtures put into said premises by the said parties of the second part except family pictures and furniture shall be and is hereby pledged for the payment of rent, and the said party of first part shall have a lien thereon for rent.” Held, that the tenant could not be ejected without payment of the furniture, etc.; that a court of equity will protect the tenant in possession of the property until he is paid for the value of such furniture and fixtures.

2. In order to work a forfeiture of a lease for nonpayment of rent there must be a demand on the tenant for the rent, although such demand may be in the form of a notice to quit.

3. Where many questions are in dispute between a lessor and lessee besides the mere right of possession of the property, a court of equity will entertain jurisdiction, and thus settle all matters between the parties relating to the subject in one action, and prevent a multiplicity of suits.

Error to district court, Hall county; HARRISON, Judge.

Action by William Haynes against the Union Investment Company and John D. Moore. A demurrer to the petition was sustained, and plaintiff brings error. Reversed.Abbott & Caldwell, for plaintiff in error.

W. A. Prince and Thompson Bros., for defendants in error.

MAXWELL, C. J.

This is an action somewhat in the nature of a bill of peace. It is alleged in substance in the petition that William Haynes is the assignee of a lease made between C. W. Scarff and Eno & Moulton. The Union Investment Company is the owner of the premises under a deed from C. W. Scarff, made after the execution and delivery of the lease. John D. Moore is trustee for the purpose of collecting rents of the property in question, which is hotel property, known as the “Palmer House,” in the city of Grand Island. The lease by its terms provided that possession of the premises would be given to the lessees June 1, A. D. 1887; the rent should be payable in monthly installments on the 15th of each month. A copy of the lease is attached to plaintiff's petition, and made a part thereof. The building at the time of the execution of the lease was in course of erection, and was not completed and possession given under it until June 20, 1888. Haynes purchased Eno & Moulton's leasehold interest and certain personal property in the hotel on the 20th day of June, 1890, and took immediate possession, paying $28,000 therefor. The lease provided that the lessor or assigns should keep the premises in repair; and that on the expiration of the lease, and before surrender of possession, the lessor should purchase and pay for all furniture, fixtures, and pictures put in the premises by the lessee; and in the event of a dispute as to the value thereof, the lease provided for the selection of arbitrators to determine such value. The exact words of the provision are as follows: “Upon the expiration of this lease, and before the surrender of the possession of said premises by said parties of the second part, said party of the first part shall purchase and pay for all the furniture, pictures, and fixtures put into said premises by parties of the second part. If said parties cannot agree upon price of said furniture, then party of the first part shall select one man, and the parties of the second part shall select one man, and the men chosen shall select a third, and said three men shall act as arbitrators, and determine the price of said furniture, pictures, and fixtures, and said party of the first part shall pay the price so determined and fixed. The family pictures and furniture belonging to the families of said parties of second part are excepted according to inventory to be attached to this lease, and all the furniture and fixtures put into said...