Kittle v. St. John

• Decision Date: 10 November 1880
• Citation: 10 Neb. 605,7 N.W. 271
• Parties: KITTLE v. ST. JOHN.
• Court: Nebraska Supreme Court

10 Neb. 605

7 N.W. 271

KITTLE

v.ST. JOHN.

Supreme Court of Nebraska.

Filed November 10, 1880.

Error from Dodge county.

Robert Kittle, for plaintiff.

Marlow & Munger, for defendant.

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, for a rental for each year therein specified, that of the fifth year being $450, 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 covenant terms of 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 said petition, (the lease set out.) 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 the 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 or the same, and has not, either directly or indirectly, since said tenth day of September, 1876, hindered or prevented said plaintiff from occupying or using said premises.” The third defence is substantially the same as the second. The reply of the plaintiff denies the surrender of the premises by the defendant, and alleges that the 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 to a former trial of said cause) and legally admissible evidence in the case, whereupon the plaintiff commenced to read tbe cross-examination of the defendant (who was sworn as a witness on his own behalf at the former trial) from said bill of exceptions, and which evidence tended to prove occupation of the premises by ...