Lesh v. Johnston Furniture Co.

• Decision Date: 13 October 1937
• Docket Number: 15485.
• Citation: 10 N.E.2d 310
• Parties: LESH v. JOHNSTON FURNITURE CO. [a1]
• Court: Indiana Appellate Court

10 N.E.2d 310

LESH v. JOHNSTON FURNITURE CO. ^[a1]

No. 15485.

Appellate Court of Indiana, in Banc.

October 13, 1937

Appeal from Whitley Circuit Court, Robt. C. McNagny, Judge.

Action by Ulysses S. Lesh against the Johnston Furniture Company. Judgment for defendant, and plaintiff appeals.

Affirmed.

James E. Lesh, of Indianapolis, and Strong & Strong, of Columbia City, for appellant.

Sapp Sees & Glenn, of Huntington, and Gates & Gates, of Columbia City, for appellee.

LAYMON Presiding Judge.

In January, 1929, appellant was the owner of a business building in Huntington, Ind., and in writing leased certain rooms in said building to appellee for five years, the term to begin on February 1, 1929, and end on January 31, 1934. The lease provided that for the first two years the rent should be $145 per month and for the remaining three years $150 per month that appellee should have the privilege of connecting certain rooms with an opening; and that appellee should, at the end of the term, deliver the premises to appellant in as good condition as they were on the date of the leasing, including the restoration of the wall opening at the election of appellant. In the early part of the year 1931, appellee, through conversations with appellant which were later confirmed by correspondence leased additional space in the building, for which appellee agreed to pay $15 per month. No definite period or term was at the time fixed by the parties as to this additional space. Appellee paid to appellant the amount of the rent as specified by the original lease and the subsequent arrangement for additional space for the period from the beginning of the term on February 1, 1929, until April, 1932. From April, 1932, until the expiration of the original lease the appellant and appellee corresponded frequently and, in some instances, conversed orally concerning the occupancy of the premises and the amount of the rent to be paid by appellee. On May 9, 1932, the Johnston Furniture Company, appellee, notified appellant by letter that on account of business conditions it was unable to pay the existing rental and asked for a reduction of the amount of the rent to $125 per month until business conditions should improve. On May 16, 1932, appellant, by letter, authorized appellee to make monthly rental remittances at the rate of $150 per month "for a while," stating "you will not be called upon to make additional payments on account of the period during which I received the remittances at the above rate, without further notice from me." On May 18, 1932, appellee, by letter, requested a further reduction in the rent. On June 3, 1932, appellee, by letter, agreed to pay $150 for the month of May but requested that the rent be reduced to $125 per month for the balance of the year, and, on June 4, 1932, appellant, by letter, granted appellee's request. Throughout the remainder of the year 1932 appellee paid, and the appellant received and accepted, rent in the amount of $125 per month. Business conditions failed to improve, and at the close of the year 1932 appellee orally requested of appellant a further reduction in rent to $100 per month, pending further developments in the business field. On December 20, 1932, following this conversation, appellant wrote to appellee suggesting that appellee make the remittance for the month of December in the amount of the "present schedule," and, pending further developments, make the remittance at the lower rate, not as a settled proposition, but to be applied on account and subject to further developments. Appellant did not specify in this letter the amount of the lower rate. On March 4, 1933, appellee notified the appellant that local business was off approximately 80 per cent., that appellee would be better off with its store closed, and that it did not see how it could pay more than $75 per month rent until business improved. In reply appellant answered by letter that he planned to install certain electric refrigerators in various properties owned by him and requested appellee to furnish prices and information regarding refrigerators.

During the months of March, May, and July thereafter appellee furnished appellant with six electric refrigerators at a price of $743, whereupon appellant credited appellee's rental account with said amount. In the month of August, 1933, appellant notified appellee that the balance due for the current month was $57. On September 23, 1933, appellant in a letter to appellee reaffirmed the fact that he had agreed to a reduction of rent to $100 per month and stated that he intended to treat the credits on account of the merchandise in lieu of the "cash understanding" and that the amount of rent due to October 1, 1933, was $157. On November 10, 1933, appellee paid appellant $257 in cash, aggregating $1,000 in cash and merchandise paid during the year 1933. On January 29, 1934, appellee tendered to appellant $300 in payment of rent for the months of November, December, and January, which amount was refused by appellant, whereupon appellee paid said amount to the clerk of the court for appellant's use and benefit. Appellant then instituted this action against the appellee to recover rent alleged to have accrued under the terms of the written lease with the appellee and to recover the amount of the costs and expenses of placing the premises in the condition in which they were at the time of the lease and for certain acts of waste alleged to have been committed by the appellee. The complaint was in two paragraphs. The first paragraph was based upon the written lease and for unpaid rent thereunder, and the second paragraph was for the cost of replacing the premises in accordance with the terms of the lease and for acts of waste. Issues were joined by answers in general denial and an affirmative answer in two paragraphs, wherein appellee admitted the execution of the original lease but alleged certain modifications as to the payment of rent thereunder and that all of said rent had been fully paid to November 1, 1933, leaving a balance of $300 due for the months of November, December, and January, which amount was tendered to appellant and refused and paid to the clerk of the court for the use and benefit of appellant. To the affirmative answers appellant replied in general denial and two paragraphs of additional reply, the first alleging failure of consideration for the subsequent modifications of the original lease and the second alleging that the consideration for the modifications of such original lease failed by voluntary acts of the appellee.

A trial by the court and jury resulted in a verdict and judgment for appellee. Appellant filed a motion for a...