Lynch v. Bechtel

• Decision Date: 24 May 1897
• Citation: 48 P. 1112,19 Mont. 548
• Parties: LYNCH v. BECHTEL.
• Court: Montana Supreme Court

48 P. 1112

19 Mont. 548

LYNCH v. BECHTEL.

Supreme Court of Montana

May 24, 1897

Appeal from district court, Silver Bow county; J. J. McHatton Judge.

Action by James H. Lynch against Isaac Bechtel. Judgment for plaintiff. Defendant appeals. Affirmed.

On May 1893, plaintiff (respondent) had in process of construction under a contract to have it completed by September 1, 1893, a three-story building on a lot in Butte City, adjoining the land on which stood the Clarence Hotel. Defendant (appellant), the landlord of the Clarence Hotel, with a view to acquiring additional hotel rooms, entered into a written agreement with plaintiff, under the terms of which he (defendant) was to lease the second and third stories of plaintiff's building at a monthly rental of $150, for a period of five years. This lease agreement provided, as to the two upper stories aforesaid, that defendant was "to have and to hold for the term of five years from the completion of said three-story and basement brick store building, which said building shall be completed on or before the first day of September, 1893, and upon such completion said term of five years shall begin and date therefrom." It also contained a provision that plaintiff, before the completion of said building, should do certain acts in reference to setting up radiators (to be furnished by defendant), and connecting heating pipes attached thereto with defendant's furnace in the Clarence Hotel. The other provisions of the lease it is unnecessary to set forth. The plaintiff (apparently from unavoidable causes) did not complete his entire building until some time in November 1893. As the evidence shows, however, the second and third stories were finished and ready for occupancy at no little extra expense to plaintiff on September 1, 1893. The radiators were not set up, and the heating pipes had not been connected with the furnace of the Clarence Hotel, on said date; but there was evidence to establish the fact that defendant had waived this failure, and that it was due to him that these requirements had not been complied with. On said date (September 1, 1893), plaintiff tendered to defendant the keys of the two stories, and notified him that the premises were ready for occupation. Defendant refused to accept the keys, or to take possession, and repudiated the contract assigning, as his reason therefor, that plaintiff had not complied with the lease. No possession of the premises was ever taken by the defendant. On March 10, 1894, the plaintiff instituted a suit against the defendant. The complaint averred the execution of the lease. It alleged that "prior to the 1st day of September, 1893, the second and third stories, so leased by defendant, were fully completed, and in all respects ready for occupancy and use for the purpose for which they were needed by defendant." It averred the refusal of defendant to permit it, as an excuse for the nonconnection of the heating pipes and the failure to put in the radiators. It alleged the performance of certain other things required of plaintiff under the terms of the lease. The complaint then proceeded: "Plaintiff further states that there is now due, owing, and unpaid to him from defendant, as rent, under said lease, for the months of September, October, November, and December, 1893, and January, February, and March, 1894, after allowing all credits and offsets, the full sum of $814.35." A demurrer was interposed on the following grounds: (1) Ambiguity and uncertainty, in that the complaint failed to show whether the plaintiff sued for rent for the actual occupation of the premises, or for rent for the premises under the terms of the lease, without entry or occupation thereof. (2) That the complaint failed to state a cause of action. The demurrer was overruled, and defendant filed an answer. He denied that the two stories were completed and ready for occupancy on the 1st day of September, 1893; denied that defendant refused to allow plaintiff to connect the heating pipes; averred that plaintiff had not completed a certain entrance as required by the lease; denied that defendant had ever taken possession of or occupied the premises; denied "that the plaintiff on his part had complied with and performed all the conditions required of him by the terms of said lease to be by him performed on or before the said first day of September, or at all complied with the said terms." The answer also denied any indebtedness as alleged or otherwise for rent under the lease. The case was tried with a jury. Evidence was offered on certain of the issues raised by the pleadings. In instructing the jury, the court declared that it was no defense to the action that the entire building of plaintiff had not been completed on September 1,...