Hill v. Wand

• Citation: 27 P. 988,47 Kan. 340
• Parties: CHARLES M. HILL et al. v. JOHN WAND
• Decision Date: 07 November 1891
• Court: Kansas Supreme Court

27 P. 988

47 Kan. 340

CHARLES M. HILL et al. v. JOHN WAND

Supreme Court of Kansas

November 7, 1891

Error from Shawnee District Court.

ALL the material facts are stated in the opinion. Judgment for plaintiff, Wand, at the September term, 1888. The defendants Hill Bros., bring the case to this court.

Judgment reversed and case remanded for a new trial.

Johnson Martin & Keeler, for plaintiffs in error.

Rossington Smith & Dallas, for defendant in error.

STRANG C. All the Justices concurring.

OPINION

STRANG, C.:

Action for damages. The petition alleges that in June, 1886, John Wand was a druggist, with a stock of goods, in possession of the store rooms on lot 213 on Kansas avenue, Topeka, as the tenant of Allen Sells, owner of the Windsor hotel building, said store rooms being a part of said building; that at the same time the plaintiffs, Hill Brothers, as partners, were in possession of the Windsor hotel under a five-year lease from said Allen Sells; that the plaintiffs represented to the defendant, John Wand, that they also had a lease of the store rooms occupied by him, covering the period of the last three years of their hotel lease, and thus induced said Wand to take a lease of said store rooms of them for the period of three years, at the monthly rental of $ 150; that, after giving Wand said lease, the plaintiffs sold their furniture and assigned their lease of said hotel to Passmore & Wiggins; that after Passmore & Wiggins obtained possession of said hotel, they notified the defendant that their predecessors, Hill Bros., never had any lease from Sells for the store rooms occupied by him, and that he must either surrender the possession of said rooms to them, or pay them a much higher rent; that he saw Mr. Sells and learned from him that, while he thought he had leased said store room to the Hills, he had ascertained that he had only contracted to lease it to them, and had not leased it; and that said Wand, learning, as he believed, that the Hills had no lease of said store rooms, and no authority to lease the same to him, and believing that his lease from them did not protect him, as he alleges it did not, was compelled, rather than to move out, to take a lease from Passmore & Wiggins and pay a much larger monthly rental, to wit, the sum of $ 175 per month, whereby he was damaged in the sum of $ 25 per month for three years, or in the aggregate $ 900. The defendants below answered by a general denial. When the case was reached for trial and the plaintiff had introduced his evidence, the defendants demurred thereto, for the reason that it failed to establish a cause of action, which demurrer was overruled.

The first question to be discussed here is a question of practice raised by the defendant in error, who contends that there is no case here for review; that the case-made does not show that the motion for a new trial was filed in the court below within the statutory time, and that, therefore, under the decisions of this court, the case should be dismissed. Whether this contention is correct or not depends upon the construction of the word "thereupon," appearing in connection with the allegation of the filing of the motion for a new trial. The case-made recites that, "after hearing the arguments of counsel, and being duly instructed by the court, the jury, after due deliberation, returned to the court its general verdict and its special findings upon particular questions of fact stated by the defendants, which verdict and findings are in the words and figures following, to wit." Then follow the verdict and special answers, immediately at the end of which, and in close connection therewith, the following declaration appears: "Thereupon the defendants filed in writing their motion for a new trial, of which the following is a copy." Then follows a copy of the motion for new trial and the reasons therefor.

By reference to Webster's, Worcester's, and other dictionaries, we find the word "thereupon" defined as follows: "Thereupon -- 1st, upon that or this; 2d, on account of that; in consequence of that." In Anderson's Dictionary of Law it is thus defined: "Thereupon -- without delay or lapse of time." From these authorities it will be seen that the word "thereupon" is employed to express a cause or condition, or is used as expressive of time. The record in this case shows the different stages of the trial, each succeeding the other in regular order, down to and including the return of the verdict of the jury. It then proceeds as follows: "Thereupon the defendants filed their motion in writing for a new trial." As employed here and in this connection, we do not think the word "thereupon" refers to a cause or condition precedent, but that it is used as an adverb of time, and means, in the language of Anderson's work, above referred to, "without delay or lapse of time;" and that, with the balance of the sentence which it introduces, it means that immediately upon the return of the verdict of the jury the defendants filed their motion for a new trial. With this construction upon the word "thereupon," it follows that the motion for new trial was filed in time, and the case is properly here for review.

The second contention of the plaintiffs in error is that the court erred in overruling their demurrer to the evidence of the plaintiff below. Did the evidence of the plaintiff below establish a prima facie case against the defendants in the trial court? If it did not, then the court erred in its ruling; otherwise the ruling of the court was correct. The proper answer to this question must determine whether or not the plaintiff below had such a lease of the store rooms occupied by him in the Windsor hotel building, from Hill Brothers, as would protect him in such occupancy. If his lease from the Hills was sufficient to protect him in his rights therein stipulated, then he had no cause of action against them under the evidence, notwithstanding the fact that, ignorant of his rights under the law, he was induced by Passmore & Wiggins to take a new lease of them for the same premises at a higher rental; and the demurrer to the evidence should have been sustained. The Hills had a proper lease of the hotel building, except the store rooms occupied at the time by Wand, from the owner, Allen Sells, for a period running three years yet from the ensuing 1st of November, 1886. Said lease also contained the following clause:

"Said Allen Sells agrees to lease said store room, or rooms, to said Horace P. Hill upon reasonable notice by said Hill, at a monthly rent of $ 125 in advance, provided always that said Allen Sells can get peaceable possession of the same from the present occupant, and will connect said drug store with the hotel by a door or other opening."

Wand was in possession of said store room as tenant of Allen Sells, the owner, and his term would expire on the 1st day of November, 1886. In June, 1886, Wand and the Hills had made the connection between the drug store and hotel spoken of in the clause of the lease from Sells to the Hills, above recited, and were in some trouble about the amount to be paid by Wand to the Hills for the privilege of said opening, he wishing said passage-way kept open to enable him to sell cigars to the guests of the hotel. Pending the discussion of said difficulty and attempts to settle the same by Wand and the Hills, Allen Sells, the owner of all the property, and landlord of both Wand and the Hills, appears and advises Wand to settle the passage-way matter with the Hills. He said to Wand that he (Sells) had leased the store rooms to the Hills from the 1st of November following, and that if he (Wand) did not settle with the Hills, they would put him out at that time. Sells left Wand, and after a short time returned and told him that the Hills would settle the archway matter for $ 25 per month and give him a lease of the store-room from November 1 at $ 150 per month and the free use of the archway, and that he (Sells) would advise Wand to do that. Sells said he had...