Klein v. Niezer And Company

• Decision Date: 29 January 1930
• Docket Number: 13,500
• Citation: 169 N.E. 688,92 Ind.App. 43
• Parties: KLEIN v. NIEZER AND COMPANY ET AL
• Court: Indiana Appellate Court

169 N.E. 688

92 Ind.App. 43

KLEIN v. NIEZER AND COMPANY ET AL

No. 13,500

Court of Appeals of Indiana

January 29, 1930

Rehearing denied June 13, 1930. Transfer denied December 17 1930.

From DeKalb Circuit Court; William P. Endicott, Judge.

Action by August Klein against "Niezer and Company" and others. From a judgment for defendant "Niezer and Company," the plaintiff appealed.

Reversed.

Henslee & McKown and H. W. Mountz, for appellant.

Eggeman Reed & Cleland and James P. Murphy, for appellees.

OPINION

REMY, C. J.

Appellant was in possession, as lessee of the New York Central Railroad Company, of a certain coal yard, and, on September 21, 1921, sublet the same by written lease to appellee Niezer & Company for a period of three years, with right of renewal for two additional years. It was also provided, among other things, that, "at the expiration of this lease peaceable possession of the premises shall be given to said first party in as good condition as they now are." The lease to Niezer & Company, as originally executed, provided that lessee should have no right to sublet; but, on June 17, 1924, by separate written contract, the restriction against subletting was abrogated. All other provisions of the lease, including return of the property at expiration of the lease, remained unchanged. Thereafter, the right of renewal for the additional years was exercised, and on the same day Niezer & Company sublet the premises to appellee Frank E. Oddou for the remainder of the term covered by the company's lease. At the time of the subletting, Niezer & Company delivered to Oddou the written lease it then held, but there was no written assignment of the lease, and no written contract between them. Oddou was to, and did, pay Niezer & Company the sum of $ 700, and was to pay a stipulated rental. The rent was paid to appellant by Niezer & Company until November, 1924, after which time, and until the expiration of the lease, September 21, 1926, the rent was paid by Oddou directly to appellant. Three months before the expiration of the lease, appellant notified Niezer & Company to deliver possession to him upon the expiration. When the lease expired, appellant made demand of Niezer & Company and Oddou for possession; but possession was not given, and appellant began this suit for possession and damages, the suit being first brought against Oddou, but an amended complaint was filed in which Niezer & Company was joined as a defendant. In refusing to vacate, Oddou claimed that the $ 700 he had paid to Niezer & Company when he had leased the premises was for certain sheds erected by Niezer & Company, and that he would not yield possession until he was paid for the sheds. The complaint of appellant was in the usual form in such cases, it being specially averred that Niezer & Company had, by its lease, agreed to return the premises, at the expiration of the lease, in as good condition as they were at the time the lease was executed, and that, by failure so to do, appellant was damaged, etc. Oddou answered complaint by denial. Niezer & Company, in addition to denial, filed a second paragraph of answer setting up that in November, 1924, it was agreed by and between appellant and Niezer & Company that the company should be released from further liability on its lease and that appellant would thereafter look solely to Oddou as his lessee of the premises. A reply in denial to the second paragraph of answer closed the issues, and a trial resulted in a finding and judgment for appellant against Oddou, and a judgment in favor of Niezer & Company. This appeal followed.

The sufficiency of the evidence to sustain the decision of the trial court is the only question which will require consideration.

On the trial, the facts above stated were established by the evidence. The only controversy was as to the issue of fact presented by the affirmative answer of Niezer & Company. Manifestly, the decision was based on a finding by the court that appellant had released Niezer & Company from liability on its lease contract.

It is well settled in this, as in most jurisdictions, that the mere assignment of a lease, or the subletting of leased premises by a lessee, with the...