Meister v. Birney

• Decision Date: 10 April 1872
• Citation: 24 Mich. 435
• Court: Michigan Supreme Court
• Parties: Bernard L. Meister v. James Birney

24 Mich. 435

Bernard L. Meister v. James Birney

Supreme Court of Michigan

April 10, 1872

Submitted on Briefs April 4, 1872. [Syllabus Material]

Error to Bay circuit.

This was an action of assumpsit brought before a justice of the peace, to recover the rent of a store in Bay City. Judgment was rendered in favor of plaintiff. The defendant appealed to the circuit court, where the cause was tried by the court without a jury. The following is the finding:

This cause having been heard at the September term, 1870, and submitted, now at this day, the court finds that on the 23d day of May, 1870, at Bay City, in Bay county, Michigan, James Birney, plaintiff, leased by writing to Rosa Meister, the south store in Birney's block, on lot two, block fifty of the plat of Bay City, to be used as a clothing store, for the full term of six months from the 30th day of May, and agreed with her also to make certain alterations specified in said lease, not exceeding fifty dollars in cost; and the said Rosa Meister also agreed in said writing to pay a monthly rent of seventy-five dollars in advance, and paid the first month's rent accordingly, the defendant, B. L. Meister loaning her the money for that purpose; that on the execution of the said lease, Rosa Meister, by parol agreement with said lessor Birney, was let into possession; that very soon after, and before the above alterations were completed, her property was attached, and she turned over the lease for the month paid in advance to the defendant, who required said lessor to complete the alterations; that said plaintiff and lessor then declined to spend any more money unless he was assured that the rent for the ensuing five months should be paid; that said defendant then informed the plaintiff that he held the lease, which had been assigned to him, and was going to occupy the premises, and would pay the rent the same as Rosa had agreed to pay; that said lessor thereupon finished the alterations specified in the lease; that said plaintiff afterwards requested said defendant to enter into written stipulation with him; and the said defendant accordingly executed the following agreement, written on said lease to Rosa Meister and below the signatures:

"Rosa Meister having assigned her interest in the above agreement, to B. L. Meister, the undersigned, he agrees to comply with the terms and conditions above specified.

"June 1st, 1870. (Signed) B. L. Meister."

That said defendant Meister occupied said premises up to July 5, 1870, at which time said Rosa Meister demanded a return of the possession of said premises to her, and the said defendant accordingly surrendered such possession to her, and has not since occupied said store; that said defendant Meister returned the keys of the store to Rosa, but gave no notice to the plaintiff of such or any surrender of the premises, or termination of his interest in the lease; that an installment of rent on said lease fell due on the 30th day of June, 1870; that an action was brought therefor by said plaintiff against said defendant in justice's court, which action was contested by said defendant, and that the plaintiff recovered judgment therein; that no more rent has ever been paid, nor surrender of the premises made to plaintiff by Rosa Meister.

This suit is brought to this court by appeal, and is maintained to recover the monthly rent of seventy-five dollars for the time from July 30th to August 30th, 1870, and the court finds, as a matter of law, that by novation said defendant Meister became lessee in said lease in place of said Rosa Meister that there has been no breach of contract, no failure of performance or of consideration of said plaintiff; that the rights of said Rosa in said store, are now voluntarily waived by her in permitting said defendant to occupy said store after June 30th, under her said lease, and by her failure to pay or offer to pay the rent then due in advance; and that said defendant Bernard L. Meister did assure and promise, as said plaintiff James Birney hath in his said declaration against him alleged. Whereupon the court assesses the damages of said plaintiff, by reason of the non-performance of his promises in this behalf by said defendant, at the sum of seventy-six dollars and sixty three...