Hirsch v. Legeros

Decision Date11 May 1931
Docket NumberNo. 6845.,6845.
PartiesHIRSCH et al. v. LEGEROS et al.
CourtSouth Dakota Supreme Court

58 S.D. 426
235 N.W. 361

HIRSCH et al.
v.
LEGEROS et al.

No. 6845.

Supreme Court of South Dakota.

May 11, 1931.


Appeal from Circuit Court, Minnehaha County; John T. Medin, Judge.

Action by Paul F. Hirsch and others against George Legeros and another, copartners doing business as Legeros Brothers. From the judgment and an order denying defendants' motion for a new trial, defendants appeal.

Reversed.

[235 N.W. 361]

Hasche & Faley and Matthew J. Schmit, all of Watertown, and T. R. Johnson, of Sioux Falls, for appellants.

Odean Hareid, of Sioux Falls, for respondents.


ROBERTS, J.

The defendant George Legeros, on January 8, 1925, entered into a lease with the plaintiffs for the use of their building in the city of Sioux Falls. The term of the lease was for a period of five years commencing on March 1, 1925. Billiard and pool hall equipment was installed in the building, and the place was conducted as a pool hall until March 1, 1927, when, on account of financial embarrassment, the business was discontinued.

The plaintiffs allege in their complaint that George Legeros entered into the lease for and in behalf of the Legeros Bros., a partnership, consisting of George Legeros, the party named as lessee in the contract, and his brother, Peter Legeros. For a first cause of action the plaintiff's allege that by reason of the negligence and carelessness of the defendants the building was damaged to the amount of $474, and upon a second cause of action the plaintiffs claim to be entitled to the difference between the amount provided in the lease agreement and the rental specified in a new lease; that by reason of the abandonment of the premises plaintiffs were compelled to relet the same at a reduced rental, and the premises were thus leased for the benefit of the defendants. Separate answers were interposed. It is denied by each of the defendants that the lease was entered into in behalf of a partnership, and each defendant denies that they were copartners during all of the times mentioned in plaintiff's complaint, but admit “the fact to be that during a portion of said time the said defendants were co-partners.” They affirmatively allege that at the time of the surrender of possession of the premises on March 1, 1927, an agreement was made and entered into between the defendant George Legeros and the plaintiffs that in consideration of the payment of $600 the plaintiffs agreed to cancel the lease, and that $350 of said amount had

[235 N.W. 362]

been paid, and that the...

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