Lyman v. Cowen

• Decision Date: 27 February 1934
• Docket Number: 22005.
• Citation: 31 P.2d 108,167 Okla. 574,1934 OK 127
• Parties: LYMAN et al. v. COWEN et al.
• Court: Oklahoma Supreme Court

31 P.2d 108

167 Okla. 574, 1934 OK 127

LYMAN et al. v. COWEN et al.

No. 22005.

Supreme Court of Oklahoma

February 27, 1934

Rehearing Denied April 3, 1934.

Syllabus by the Court.

1. A party to a lawsuit is bound by his pleadings, and it is not error for the trial court to refuse to admit evidence which seeks to contradict admissions in the pleadings of the party offering it.

2. It is a well-recognized principle of law that, in the absence of a statute or agreement, there is no implied warranty that leased premises are suitable for the purposes for which they are demised, or that the lessor will keep the property in repair. The building being one used for business or mercantile purposes, section 3813, Rev. Laws 1910 (O. S 1931, § 10926), can have no application.

Appeal from District Court, Pottawatomie County; Hal Johnson, Judge.

Action by Nathan Cowen and another against D. D. Lyman and another. Judgment for plaintiffs, and defendants appeal.

Affirmed.

Tom Waldrep, of Shawnee, for plaintiffs in error.

Goode Dierker & Goode, of Shawnee, for defendants in error.

BAYLESS Justice.

Nathan Cowen and J. F. Stegall, hereinafter called plaintiffs, sued D. D. Lyman and Vina Lyman, hereinafter called defendants, in the district court of Pottawatomie county, Okl., to recover damages for the breach of a lease; and, being successful, the defendants appeal therefrom to this court.

The trial judge directed the jury to return a verdict in favor of plaintiffs, upon the pleadings, a stipulation of the parties and the issues made thereby, after he had rejected the offer of the defendants of certain testimony on their behalf. The effect of the court's ruling based upon this record is to present to us a question of law only.

The defendants argue three alleged errors which may be summarized thus:

"1. The building was not constructed in conformity with the specifications agreed upon in the oral negotiations;

2. That developments after they had paid rent and taken possession of the building forced them to vacate and constituted a constructive eviction;

3. The Court erred in striking the opening statement of the defendants and rejecting their offer of proof."

We feel that assignment No. 3 is so much a part of assignments Nos. 1 and 2, that a determination of them disposes of No. 3 also.

The allegations of the plaintiff's amended petition concerning the contract between the parties, the erection of the building, and the taking possession thereof by the defendants, are to be found in paragraphs 1, 2, and 3. In paragraph 2 it is alleged: "That the said defendants took possession of said building and paid rent thereon, after the same was completed, and accepted the same as a fulfillment of the requirements of said lease contract."

The defendants say, in paragraph 3 of their answer and cross-petition, the following: "Defendants admit the allegations contained in paragraphs 1, 2 and 3 of the said amended petition."

Because of plaintiff's pleading and the defendant's admission concerning it there was no issue regarding the conformity of the building as constructed under the specifications. Therefore, the trial court did not err when it refused to admit evidence upon this issue. Winans v. Hare, 46 Okl. 741, 148 P. 1052; Lee v. Little, 81 Okl. 168, 197 P. 449; Lane Implement Co. v. Lowder et al., 11 Okl. 61, 65 P. 926; Rogers v. Brown, 15 Okl. 524, 86 P. 443.

The second point involves the alleged defect in the building which developed later, and which, according to the pleadings of defendants, rendered the building unfit for occupancy. Having admitted that they accepted the newly constructed building as a fulfillment of the specifications of construction, and not having alleged any facts tending to establish that their acceptance thereof was induced by any unfair or improper means, we can only treat these alleged later developments as following in the class of repairs. We have held in Horton v. Early, 39 Okl. 99, 134 P 436, 437, 47 L. R. A. (N. S.) 314, Ann. Cas. 1915D, 825, Enterprise Seed Co. v. Moore, 51 Okl. 477, 151 P. 867, and Barker v. Findley, ...