Marshall v. Rugg

• Decision Date: 16 April 1896
• Citation: 6 Wyo. 270,44 P. 700
• Parties: MARSHALL v. RUGG
• Court: Wyoming Supreme Court

44 P. 700

6 Wyo. 270

MARSHALL v. RUGG

Supreme Court of Wyoming

April 16, 1896

On rehearing June 30, 1896.

Rehearing Granted 6 Wyo. 270 at 287.

Commenced in District Court May 3, 1894.

ERROR to the District Court for the County of Laramie, HON. RICHARD H. SCOTT, Judge.

Charles F. Rugg brought the action against Mary R. Marshall to recover the sum of $ 1,275. The petition contained two causes of action: 1. A claim by way of damages in the sum of $ 1,175 for the violation of a covenant of the lease providing for a return of the premises at the expiration of the lease in as good condition as when entered upon. 2. Upon a contract for the payment of the sum of $ 100 in consideration of the consent of plaintiff that defendant might surrender the lease prior to the time of expiration named therein.

The defendant filed a motion to require plaintiff to elect upon which of the two causes of action he would rely. The motion was based upon the proposition that the two causes of action were inconsistent. The motion was denied, and defendant excepted. The answer was a general denial. The case was tried to a jury and a verdict returned in favor of the plaintiff and the damages assessed at $ 686.16. Motion for new trial was presented and overruled, to which the defendant excepted and judgment was entered upon the verdict. The defendant brought the case to the Supreme Court by petition in error.

Rugg leased his ranch under a written agreement between himself on the one part and Daniel Marshall and Frank C. Marshall on the other. Mary R. Marshall was the owner of another ranch and some cattle located in the same neighborhood, and Daniel Marshall, her son, resided thereon and had charge of the cattle, working on a salary for his mother. Frank C Marshall, another son of Mary R. Marshall, resided at Longmont, Colo. Both Daniel and Frank C. Marshall testified that they leased the Rugg ranch for themselves and that their mother had no interest in it. Neither Daniel or Frank had any cattle of their own, but their mother's cattle were pastured on the Rugg ranch. Frank subsequently represented her in the sale of the cattle to Ora Haley, and in the contract of sale the cattle or some of them were to remain on the Rugg ranch until delivery. Frank testified that when he leased the ranch from Rugg he intended to buy some cattle on his own account, but he did not carry out that intention for lack of means. Daniel left Wyoming in January, 1893. The theory of the plaintiff, Rugg, was, that as Mrs. Marshall owned all the ranch property and live stock cared for by her said sons, and as the leased ranch was used for her benefit in the pasturage of her cattle, she was the unnamed principal, and that Daniel and Frank leased the property for her although in their own names.

The lease was surrendered in June, 1893, in accordance with an agreement by correspondence between Rugg and Frank C Marshall, in consideration of the sum of one hundred dollars to be paid to Rugg. The other material facts and testimony are referred to in the opinion.

Judgment affirmed.

Frank H. Clark, for plaintiff in error.

The effect of a surrender of a lease is to terminate the relations and obligations of landlord and tenant (4 Wait's Ac. & Def., 213; Gear L. & T., 192-93), and discharges the tenant from liability under the lease. (De Morat v. Falkenhagen 23, A. 1125; Dantzig v. Falkenberg, 18 N.Y.S. 927.) Plaintiff sues upon the provisions of a contract which has been wiped out completely, and at the same time for compensation for wiping out the former contract, and seeks to recover upon both. The causes of action are inconsistent, and plaintiff should have been compelled to elect upon which one to proceed. (Abbott's Tr. Br., 410, 643 et seq.; 18 Am. and Eng. Ency. L., 500-1.) Damages under the covenant in the lease requiring the premises to be turned over in good condition at the expiration of the lease, could not be claimed on the 1st of June, 1893, the term of the lease being until May 3, 1894. (Gear L. & T., 22, 28, 74, 82; 4 Wait's Ac. & Def., 242.) The agreement upon which suit for such damages should have been brought is the agreement for surrender, but upon that contract only $ 100 is claimed--the agreed compensation for surrender of the original lease. The foundation of the second agreement was the annihilation of the first.

If Mary R. Marshall was the lessee, the lease was void under the statute of frauds, as she did not sign it, nor any agent duly authorized. The testimony does not establish that she was the principal and Daniel and Frank her agents in the transaction. (Mechem on Agency, 73 et seq., 519 et seq.; 1 Am. and Eng. Ency. L., 231 et seq., 1 Wait's Ac. & Def., 230, 232, 286.

W. R. Stoll, for defendant in error.

Plaintiff below did not agree to release defendant from damages committed upon the ranch, nor from the violation of her covenants contained in the lease. When the place was surrendered the tenant was liable to the landlord for all damages committed, which resulted either from her duties as lessee or from the violation of the terms of the lease. The relation of landlord and tenant was terminated, it is true, but only for the future. The tenant would not be liable for future rent, but she would be liable for any rent past due, and for waste committed while she was in possession. When a lease is surrendered, all past obligations are not annulled; and whether there is a liability on behalf of either or both parties as to duties and obligations arising while the lease was in operation, must be determined by the nature of those obligations which have been in existence in the past. The one hundred dollars was the agreed price for the privilege granted the lessee of no longer being bound for the following year.

A landlord may release a tenant, but to do so, he must do it by virtue of either an instrument in writing, which by its terms does release the tenant from damages, or of the fact that, by some act or deed, he has waived the right to insist upon damages, or of the fact that in consequence of some principle of law, he is estopped from claiming damages, none of which exist or were pleaded in this case.

It is a rule of law in agency that if one receives the benefits of the agency, whether authorized or not, the one so receiving the benefits is liable and is estopped from saying that the relation of principal and agent did not exist. The testimony clearly established the fact of agency, and that the lease was made for the defendant below.

The lease was not required to be under seal. Where an instrument is not required to be under seal, the affixing of a seal is superfluous, and the instrument is to be considered as if no seal had been used. (Mechem on Agency, 702; Worrall v. Munn., 5 N.Y. 227; Lawrence v. Taylor, 5 Hill, 107; Evans v. Wells, 27 Wend. 323; Stowell v. Eldred, 39 Wis. 614.)

Authority to execute, for another, a written instrument, not requiring a seal, need not be in writing; and to hold one liable in addition to the signers does not contravene the statute of frauds. (Mechem Agency; 701; Briggs v. Partridge, 64 N.Y. 357; Barcherling v. Katz, 37 N. J., Eq., 150.)

CONAWAY, JUSTICE. GROESBECK, C. J., and POTTER, J., concur.

OPINION

CONAWAY, JUSTICE.

This action was brought by defendant in error as plaintiff in the district court, to recover damages for a violation of the conditions of a lease of certain property of defendant in error known as the Rugg ranch, with its appurtenances, located on Bear Creek, Laramie County, Wyoming; and to recover one hundred dollars for accepting by agreement a surrender of the lease before the expiration of its term. Defendant in error had verdict and judgment for $ 686.16, and the plaintiff in error made a motion for a new trial, which was overruled; and now, by her petition in error, brings the cause to this court for review.

The Rugg ranch consisted of four hundred acres called meadow land, belonging to defendant in error, about half of which was actually mowed for hay, the land laying along Bear Creek; and several sections of government land adjoining on each side, which was enclosed for pasture, and known as the north and south pastures.

The lease is dated June 27, 1892, and purports to be for the term of two years from date. It, however, contains a provision that possession should be given to the lessor on May 1, 1894. Under this provision defendant in error claimed that the first year of the term expired on May 1, 1893, and this claim does not seem to have been objected to.

The lease names Charles F. Rugg as party of the first part, and Daniel Marshall and Frank C. Marshall as parties of the second part. The first overture for the surrender of the lease comes from Frank C. Marshall, in a letter dated March 27, 1893, to defendant in error, who was then in Vermont. The correspondence thus begun resulted in the surrender of the lease upon an agreed consideration of one hundred dollars to be paid to defendant in error. He took possession of the ranch under this agreement on June 2, 1893. A check for the hundred dollars was sent to him by Frank C. Marshall. He declined to receive it because there was written upon it a receipt in full of all demands. His reason for refusing to accept the check on this condition of receipting in full for all demands was that he thought he was entitled to further compensation because the ranch was not in as good condition when possession of it was restored to him as when he gave possession under the lease. The portion of the lease under which he makes this claim is in the following words "Said lessees further agree to turn over to said lessor all of said property at the expiration of this lease in as good order and condition as when entered into by...