Kittle v. John

• Decision Date: 10 November 1880
• Citation: 7 N.W. 271,10 Neb. 605
• Parties: ROBERT KITTLE, PLAINTIFF IN ERROR, v. E. G. ST. JOHN, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

7 N.W. 271

10 Neb. 605

ROBERT KITTLE, PLAINTIFF IN ERROR, v. E. G. ST. JOHN, DEFENDANT IN ERROR

Supreme Court of Nebraska

November 10, 1880

ERROR to the district court of Dodge county. Tried below before POST, J.

REVERSED AND REMANDED.

Robert Kittle, pro se, cited Gen. Stat., 875, sec. 16. 1 Greenleaf Evidence, sec. 268. Chitty on Contracts, 4, 370. Cook v Bradley, 7 Conn., 57. Bridgman v. Wells, 13 Ohio 43.

Marlow & Munger, for defendant in error, cited Richardson v Bates, 8 Ohio St. 257. Gen. Stat., 392, sec. 5--872 sec. 1--880, sec. 46. Roads v. Symmes, 1 Ohio 281. Roode v. The State, 5 Neb. 174. Bridgman v. Wells, 13 Ohio 43.

OPINION

COBB, J.

The plaintiff leased certain premises to the defendant by a written lease dated September 10, 1872, for a term of five years, commencing on that day, at a rental for each year therein specified, that of the fifth year being four hundred and fifty dollars, payable quarterly in advance, at the office of the plaintiff in Fremont, and providing further that "at the termination of this lease said E. G. St. John shall deliver the possession of said premises peaceably to Robert Kittle, together with all right which he may acquire in any railroad track or spur thereon, all in as good condition as when received, except common wear and the casualties which may happen from the elements, and in default of any payment at the time due of the rent, or should said warehouse be closed, or the premises not used in the ordinary grain or lumber trade for more than one month at any time, Robert Kittle may terminate this lease by first giving six days notice, served on any one occupying said premises at such time or thereon. This lease may be terminated by E. G. St. John at the end of either year, by the same notice as above, served at R. Kittle's office or on him." Signed by the parties and witnessed.

The plaintiff in his petition sets out the making and delivery of the said lease, that the defendant entered into the said premises under the said lease and occupied them thereunder, and paid the rent according to the terms thereof for four years, "that by the covenants and terms of the said agreement there was justly due and unpaid in consideration of the use and rent of the said premises, on the tenth day of September, 1876, from said defendant to said plaintiff, $ 65, which was, on the eleventh day of September, 1876, demanded by said plaintiff from said defendant, who was then in full possession of said premises, yet said defendant then and there refused," etc.

The defendant, by his amended answer, "admits that he signed a paper writing, a copy of which is attached to the said petition" [the lease set out in plaintiff's petition]. "He denies each and every allegation in plaintiff's petition alleged except that he signed said paper writing."

"For a second and further answer to plaintiff's petition, he says that he occupied and used the premises in said paper writing described * * * from and after the tenth of September, 1872, he continued to use and occupy said premises until the tenth day of September, 1876, as tenant at will. That on said tenth day of September, 1876, he surrendered the use and occupation of said premises to said plaintiff, and has not since that time had the possession or use of the same, and has not, either directly or indirectly, since said tenth day of September, 1876, hindered or prevented said plaintiff from occupying and using said premises."

The third defense is substantially the same as the second.

The reply of the plaintiff denies the surrender of the premises by the defendant, and alleges that defendant occupied them under the said lease for the full term of five years.

Upon the trial, the plaintiff offered as evidence to go to the jury the original lease or agreement as set out and referred to in the petition and answer, which, on defendant's objection, was ruled out and not admitted, to which plaintiff excepted.

It was then agreed by the respective parties in open court that either party might read from the bill of exceptions (taken at a former trial of the said cause) any legally admissible evidence in the case. Whereupon the plaintiff commenced to read the cross-examination of the defendant (who was sworn as a witness on his own behalf at the former trial) from the said bill of exceptions, and which evidence tended to prove occupation of the premises by the defendant for and during the term for which rent is claimed in this suit, to which the defendant objected, as irrelevant, immaterial, and no foundation laid. The question being reserved by the court the plaintiff continued to read said testimony at considerable length, when the court announced that the first objection to the said "evidence must be...