Midland Valley R. Co. v. Jones

• Citation: 115 F.2d 508
• Decision Date: 03 December 1940
• Docket Number: No. 2096.,2096.
• Parties: MIDLAND VALLEY R. CO. v. JONES.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

115 F.2d 508 (1940)

MIDLAND VALLEY R. CO. v. JONES.

No. 2096.

Circuit Court of Appeals, Tenth Circuit.

November 1, 1940.

Rehearing Denied December 3, 1940.

Charles P. Gotwals and James D. Gibson, both of Muskogee, Okl. (William A. Killey, of Muskogee, Okl., on the brief), for appellant.

C. A. Ambrister, of Muskogee, Okl., for appellee.

Before BRATTON, HUXMAN, and MURRAH, Circuit Judges.

HUXMAN, Circuit Judge.

By a written lease dated July 1, 1929, the Title Guaranty Trust Company leased to the Midland Valley Railroad Company certain portions of a building in Muskogee, Oklahoma, for a term of five years, at a monthly rental of $925, payable in advance. Title to the building thereafter passed to Josephine C. Jones. The railroad company refused to pay the rent for December, 1931. Mrs. Jones thereupon brought an action against the railroad company for the recovery of this rent. Subsequent to the filing of this action, Mrs. Jones, through her agent, Zeb P. Jackson, entered into an oral agreement with the railroad company, under the terms of which the accrued rent for December, 1931, and January and February, 1932, was to be reduced to $772.50 per month, and the rental for the month of March, 1932, and thereafter was to be reduced to $620 per month. The railroad company was to surrender certain parts of the space occupied by it and the operation of one of the elevators was to be discontinued. The space was accordingly surrendered by the railroad company and service of the elevator was discontinued.

On February 29, 1932, the railroad company delivered to the agent for Mrs. Jones a check in the sum of $2,937.50, containing the following notation: "In full of office rent for second, third, fourth and part of fifth floors of Railway Exchange building, Muskogee, Okla., up to and including the 29th day of February, 1932, as agreed with Zeb P. Jackson, Agent, February 22, 1932, $2317.50. Rent in advance for the month of March, 1932, for second, fourth and parts of first and fifth floors as agreed with Zeb P. Jackson, Agent, February 22, 1932, $620.00, total $2937.50. * * * This voucher is endorsed as an acknowledgment of the receipt of payment in full of account as stated within."

Thereafter the railroad company continued to pay rent at the rate of $620 per month. In February, 1933, the railroad company notified Mrs. Jones that it would vacate the premises on or about April 1, 1933. It vacated the leased premises on April 30, 1933, and tendered Mrs. Jones a check for the rent for April, 1933, bearing the following notation: "In full payment and discharge of all obligations for or on account of office space in the Railway Exchange Building, Muskogee, Oklahoma, having completely vacated as of April 30th, 1933, $620.00."

The check was refused and an action was filed by Mrs. Jones against the railroad company to recover rent on the original lease from December 1, 1931, to the end of the term on the basis of the rental provisions of $925 per month in the written lease, less the payments made by the railroad company.

The railroad company filed its answer in the action, asserting the oral agreement, and alleged that no term of occupancy was fixed in the oral agreement and that it paid the rent under the oral agreement to and including the month of March, 1933, and that pursuant to the notice given in February, 1933, it vacated the premises on March 31, 1933.

At the close of the trial, counsel for Mrs. Jones requested the court to find that the original lease was modified by the oral agreement with respect to the space to be occupied by the railroad company, the amount of rental to be paid, and the elevator service. The court concluded that the written lease was abrogated and discharged by the oral agreement, and that by the oral agreement the parties entered into a new lease on a month to month basis at a rental of $620 per month. Judgment was entered for the railroad company. Mrs. Jones appealed to this court, where the case was reversed and remanded for a new trial. Jones v. Midland Valley R. Co., 10 Cir., 105 F.2d 322.

After the case was remanded, plaintiff sought and obtained permission to file an amended petition. The amended petition again recounted the execution of the original lease, its modification by the oral agreement, default in the payment of the rent, and prayed for judgment...