John Steen v. Frank R. Scheel

• Court: Nebraska Supreme Court
• Writing for the Court: RAGAN, C.
• Citation: John Steen v. Frank R. Scheel, 64 N.W. 957, 46 Neb. 252 (Neb. 1895)
• Decision Date: 06 November 1895
• Docket Number: 5259
• Parties: JOHN STEEN v. FRANK R. SCHEEL

64 N.W. 957

46 Neb. 252

JOHN STEEN v. FRANK R. SCHEEL

No. 5259

Supreme Court of Nebraska

November 6, 1895

ERROR from the district court of Saunders county. Tried below before MARSHALL, J.

AFFIRMED.

J. R Gilkeson, for plaintiff in error, cited: Hammond v Eckhardt, 9 N.Y.S. 508.

George I. Wright, also for plaintiff in error.

George W. Simpson and J. E. Frick, contra, cited: Hunter v Silvers, 15 Ill. 174; Sutherland v. Goodnow, 108 Ill. 528; Thiebaud v. First Nat. Bank, 42 Ind. 212; Bradford v. Patten, 108 Mass. 153; Barnett v. Feary, 101 Ind. 95; Eichorn v. Peterson, 16 Ill.App. 601; Reed v. Campbell, 4 A. [N. J.], 433; Elevator Co. v. Brown, 36 Ohio St. 660; Blumenberg v. Myres, 91 Am. Dec. [Cal.], 560; Crommelin v. Thiess, 70 Am. Dec. [Ala.], 499; Schuyler v. Smith, 51 N.Y. 309.

OPINION

RAGAN, C.

On the 25th day of October, 1887, John Steen and Frank R. Scheel entered into an agreement in writing, in and by which Steen leased to Scheel a building known as the "Killian Building," situate on block 149, in the city of Wahoo. The lease provided that Scheel was to have and hold the leased property "from the 1st day of December, 1887, to the 1st day of December, 1889, with the refusal of leasing said property for the term of two years longer from December 1, 1889, to December 1, 1891." The rent reserved in such lease was $ 960, payable in installments of $ 40 on the first day of each month, commencing on the 1st day of December, 1887. The lease further provided: "But it is further agreed that if party of the second part [tenant] holds over the term of two years as above agreed, that this lease shall be binding upon both parties for the next two years, or until the 1st of December, 1891." Scheel entered into the possession of the leased premises and paid the rent thereof up to the 1st day of November, 1889. Prior to the 1st day of December, 1889, he moved his furniture and stock of goods out of the building into a building of his own which he had constructed during the summer of 1889. He locked up the leased building, but retained the key thereof until some time in January, 1890, when he left it at the house of Steen. Steen did not at any time notify Scheel that he could or could not renew the original lease or remain in possession of the leased property thereunder after the 1st day of December, 1889. Scheel did not renew or attempt to renew the original lease, had no communication with Steen on the subject, nor did he occupy the property or any part thereof after the said date further than to retain possession of the key. Steen brought this suit against Scheel to the district court of Saunders county to recover $ 120 rent for said premises for the months of November and December, 1889, and January, 1890. At the close of the evidence the jury, in obedience to an instruction of the district court, returned a verdict in favor of Steen for the sum of $ 40, the rent for such building for the month of November, 1889, and to reverse the judgment pronounced on this verdict Steen prosecutes to this court a petition in error.

1. What construction should be placed upon these clauses found in the lease: "With the refusal of leasing said property for the term of two years longer from December 1, 1889, to December 1, 1891;" "But it is further agreed that if the party of the second part holds over the term of two years, as above agreed, that this lease shall be binding upon both parties for the next two years or until December 1, 1891"? Was this a lease of the property to commence on the 1st day of December, 1889, and to terminate on the 1st day of December, 1891? In Sutherland v. Goodnow, 108 Ill. 528, the lease contained this clause: "'And it is also provided, as a part of this agreement, that the said Sutherland shall have the option to take the said premises for another year at the same price or rent, provided said first party does not sell said premises before the end of the month of April, A. D. 1881.'" The court, in construing this provision of the lease, held: "A clause in a lease for one year giving the lessee the option, on a certain condition, to renew the lease for another year, is not a demise to take effect at the expiration of the first year. It is a mere covenant or undertaking of the lessor to let the lessee have a second term, which may be enforced on bill for specific performance or upon which an action at law may lie for a breach." (See, also, Hunter v. Silvers, 15 Ill. 174.) We think a proper construction of this lease is that by it Steen leased the premises to Scheel absolutely for two years and agreed that at the expiration of the original lease he would make another lease of the premises to Scheel in case he should desire it, on the same terms and conditions mentioned in the first lease. By the lease between the parties Steen did not lease the premises to Scheel for two years from the 1st day of December, 1889, but agreed in writing that he would lease the premises if Scheel should desire said lease.

2. Counsel for Steen does not seem to question this construction of the lease, but his contention is that at the expiration of the lease Scheel did not surrender possession...