Kennedy v. Hull

• Decision Date: 12 February 1901
• Citation: 85 N.W. 223,14 S.D. 234
• Parties: KENNEDY v. HULL et al.
• Court: South Dakota Supreme Court

14 S.D. 234

85 N.W. 223

KENNEDY

v.HULL et al.

Supreme Court of South Dakota.

Feb. 12, 1901.

Appeal from circuit court, Lincoln county; Joseph W. Jones, Judge.

Action by C. B. Kennedy against D. C. Hull and another, partners as Hull & Co., and others. Judgment for defendants, and plaintiff appeals. Reversed.Kennedy & Carlson, for appellant. Knudson & Forrest and Aikens & Judge, for respondents.

CORSON, J.

This is an action for an injunction to restrain the defendants from disposing of certain merchandise, books of account, etc., formerly in the possession of the defendants Hull & Co. Findings and judgment were in favor of the defendants, and the plaintiff appeals.

The plaintiff, in his complaint, states his cause of action substantially as follows: That in March, 1899, the plaintiff and the defendants Hull & Co. entered into a written contract denominated a “tenement lease,” whereby the plaintiff, as party of the first part, agreed to build a one-story building in the city of Canton, and to lease the same to the defendants Hull & Co. for the period of three years at an annual rent of $180, payable monthly; that it was agreed by the lessees in said contract that the lessor should have a lien on all goods and on all merchandise brought to the said premises or kept in any building thereon to secure the payment of any rent accrued or to accrue, which lien should be enforced the same as a pledge, the lessees to have the right to sell the said property at retail, applying the proceeds to the payment of said rents as they mature; and the lessees also covenanted with said lessor not to assign the lease without the written consent of the lessor, and to surrender the premises at the expiration of the term, etc.,-signed, “C. B. Kennedy. Hull & Co. D. C. Hull.” The complaint further alleges that about the 10th day of May, 1899, Hull & Co. made what they claimed to be an assignment for the benefit of their creditors to Frank Arnold, of all their stock in trade, etc.; that said Hull & Co. are insolvent; that by reason of said contract plaintiff has a lien upon all property in said building, consisting of fixtures, stock in trade, books of account, etc.; that the rents have been paid up to the 1st day of January, 1900, with the exception of $3.70; that there is due and yet to become due on said lease the sum of $408.70; wherefore, the plaintiff demands judgment of the court requiring the assignee to hold the possession of all property of said Hull & Co., including the furniture, fixtures, books of account, etc., and to pay the plaintiff his rents as they accrue, and he further asks that the said court restrain the said Arnold and said Hull & Co. from in any manner disposing of said stock in trade, etc. In their answers the defendants, as a defense to said action, set up, among other things, that the instrument denominated a “tenement lease,” a copy of which was set out in the complaint, at the time of making and delivery thereof did not, nor does it now, contain a receipt for, nor does it now appear upon the same over the signature of the mortgagors that, a true copy of the same has been delivered to and received by them, as required by section 1, c. 95, Laws 1897; wherefore, and by virtue of these acts, these defendants allege that plaintiff acquired no lien whatever upon any of the property described in said writing, so denominated a tenement lease. The court found the facts substantially as set out in the complaint and in the paragraph of the answer referred to, and also that the so-called tenement lease was executed and delivered in duplicate; and concludes as matter of law that the plaintiff has no lien upon, interest in, or claim to any of the personal property referred to in the complaint, and that the defendants are, therefore, entitled to a judgment dismissing the complaint. The only question, therefore, presented by the record, is, did the failure to comply with the requirements of ...