Kandis v. Pusch

• Decision Date: 18 March 1927
• Docket Number: 12,650
• Citation: 155 N.E. 618,86 Ind.App. 246
• Parties: KANDIS ET AL. v. PUSCH ET AL
• Court: Indiana Appellate Court

155 N.E. 618

86 Ind.App. 246

KANDIS ET AL. v. PUSCH ET AL

No. 12,650

Court of Appeals of Indiana

March 18, 1927

Rehearing denied May 27, 1927.

From LaPorte Circuit Court; W. W. Pepple, Special Judge.

Action by Nicholas A. Kandis and others against Carl Pusch and others. From a judgment for defendants, the plaintiffs appeal.

Affirmed.

Lemuel Darrow, Earl Rowley and C. V. Shields, for appellants.

Smith Rees & Smith, Osborn, Osborn & Link and H. W. Worden, for appellees.

NICHOLS J. Dausman, J., absent.

OPINION

NICHOLS, J.

The error assigned that we need to consider is the ruling of the court in sustaining the separate and several demurrers of appellees to the reamended second paragraph of complaint. It is averred in this pleading, in substance, and so far as here involved, that appellants Kandis and Koutoulas were partners engaged in the restaurant business in the city of LaPorte. Appellee Pusch and Maud V. Pusch, who is not a party to this action, were owners of certain real estate in the city of LaPorte, Indiana, and the other appellees were owners and operators of a restaurant in said city. On April 5, 1923 appellee Pusch and Maud V. Pusch leased in writing to appellant Nicholas Kandis said real estate for five years from August 1, 1923, at a rental of $ 150 per month for the first two years, and $ 175 per month for the last three years. The rent was payable in advance on the first day of each month. It was provided in the lease that, in the event of default in any of the covenants of the same by the lessee, the lessor might at any time during such default, without notice, terminate the lease, enter upon the premises and expel the lessee, and all rights of action for such ouster and expulsion were, by the terms of said lease, expressly waived. Said appellant Nicholas Kandis was the lessee, but it is averred in the complaint that the other appellants were his partners and that appellee Pusch knew of such partnership. On October 22, 1924, appellant Nicholas Kandis executed a written assignment of the lease to one Chin Mark Suey, with the express understanding, as provided in the assignment, that said Chin Mark Suey should pay all future rents and that appellee Kandis should be relieved therefrom. The assignment was duly acknowledged before a notary public, the lease accepted by Chin Mark Suey, and the owners of the premises consented in writing to the assignment. On the same day, appellants sold the fixtures and equipment in the restaurant on the leased premises to said Chin Mark Suey for $ 4,000, and $ 1,500 was paid in cash and notes in various amounts falling due in successive months were executed for the balance. The title of the fixtures so sold was to remain in appellants until the notes were paid, appellants reserving the right to take possession thereof in the event of default. It is alleged that appellee Pusch had knowledge of this conditional sale. Chin Mark Suey, on November 1, 1923, took possession of the premises and paid the rent until April, 1924, when he defaulted, abandoned the premises, disappeared, and has not since been heard from. At the time of his disappearance, he had paid $ 400 on the installment notes to appellants, and was in default on notes that were past due $ 500. Appellants tendered appellee Pusch $ 150 in payment of the rent due May 1, 1924, which offer was refused, and then on May 16, and again on May 19, 1924, offered appellee Pusch $ 200 per month, which was refused. Appellee Pusch entered into an agreement with the other appellees that, in the consideration of the payment of $ 450 to him by the other appellees, the receipt of which was acknowledged, he would not lease the premises involved to any one for restaurant purposes for three years. On May 22, 1924, appellee Pusch, and his co-owner of the building, rented the same to one Alspach for a shoe store at a rental of $ 200 per month, and thereupon, said appellee removed from the building the fixtures and restaurant equipment, and, in so doing, damaged the same. It is alleged that such action on the part of appellee Pusch was the result of a...