Mitchell v. Henderson

• Citation: 97 P. 942,37 Mont. 515
• Parties: MITCHELL v. HENDERSON.
• Decision Date: 05 November 1908
• Court: Montana Supreme Court

97 P. 942

37 Mont. 515

MITCHELL v. HENDERSON.

Supreme Court of Montana

November 5, 1908

Appeal from District Court, Gallatin County; W. R. C. Stewart Judge.

Action by C. A. Mitchell against S. J. V. B. Henderson. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

John A Luce, for appellant.

SMITH J.

The plaintiff began this action in the district court of Gallatin county, and alleged in her complaint as follows: "That the defendant is the owner in fee of those certain premises known as No. 413 East Cottonwood street, in the city of Bozeman; that on or about February 7, 1906, the defendant agreed to make certain repairs to said premises, and to have the same completed by March 1, 1906, and on that date to lease said premises to plaintiff at a rental of $7 per month that defendant did not have said premises repaired and ready for the occupancy of the plaintiff according to their agreement until after March 10, 1906; that plaintiff, relying upon her agreement with defendant, incurred great expense in preparing to occupy the said premises, in packing her furniture, loading it into a railroad car and unloading it therefrom, in hiring assistants to pack said furniture, in loss of business because of her announced intention to move, and in loss of business because of her preparation to move, and in payment of extra rent, to the damage of the plaintiff in the sum of $196; that plaintiff has at all times been willing and ready to carry out the terms of her agreement with defendant and has tendered performance thereof; that, after plaintiff had made all preparations to occupy the said promises as aforesaid, the defendant refused and now refuses to carry out the terms of his said agreement with plaintiff, and by reason of such refusal the plaintiff has been damaged in the sum of $300." Judgment was demanded for $300 and costs of suit.

The defendant in his answer admitted that on or about the 7th day of February, 1906, he agreed to make certain repairs upon said premises, and to have the same completed on or about the 6th day of March, 1906, and then alleged that he agreed to lease the premises to the plaintiff at a monthly rental of $7 per month, rent to commence on the 1st day of March, 1906, and to be paid in advance from month to month. He further alleged that he made said repairs as agreed, and averred that plaintiff about the 1st day of April, 1906, refused to carry out her part of said agreement or to pay the rent as stipulated from the 1st day of March, 1906, whereupon he, the defendant, notified plaintiff that he would not lease said premises to her, and on or about April 6, 1906, he leased the same to another tenant. Then followed denials of plaintiff's allegations relating to the damage sustained by her.

Plaintiff for reply denied that she ever agreed to pay rent in advance or that she agreed to pay rent from the 1st day of March, 1906, and averred that she agreed to pay rent from the time defendant had the promised repairs made and completed, and that such time was not before the 10th day of March, 1906. The plaintiff testified, among other matters, as follows: "I made an agreement with Mr. Henderson on February 7, 1906, by which I agreed to pay him the rent of $7 per month as long as I wanted the building from the 1st day of March, if he would put the building in shape, and he promised to do so. He wanted to know how long I wanted to live there, and, if I wanted to live there only a month or two, he would not fix it up. I told him I would take it for at least a year. The real agreement between us was that I was to lease this house for at least a year, and he would not fix it up unless I would agree to that, because he could rent it as it was, and he did not want to incur any expense for anybody to move in the house for a month. I considered it a lease for a year, and not from month to month." Plaintiff's testimony further shows that she began to pack up and get ready to move some time during the month of March, but that she was unable to move from Belgrade, in Gallatin county, to the city of Bozeman before April 8th, for the reason that a blizzard prevailed in that section of the country for two weeks after she got packed up, and she was unable to get a railway car for her goods before that date. She paid no rent until April 7th, upon which date she sent to the defendant the sum of $10.50, one-half of the rent for the month of March and all of the rent for April. This money was returned, for the reason that at that time the defendant had leased the premises to another party. There is no testimony that the neglect of the defendant to make the repairs had anything to do with plaintiff's failure to move or the damages she claims to have sustained. She assigns an entirely different reason for not moving in March. We regret that we have not had the assistance of any brief or oral argument on the part of the respondent. In behalf of the appellant, it is contended that there is a fatal variance between the allegations of the complaint and the proof, in that the complaint sets forth an agreement to give a lease, and the proof shows that an actual lease was made. We do not regard this point as material in view of the conclusion we reach upon other points in the case. We are inclined to the opinion, however, that, reading the complaint in the light of the circumstances surrounding the transaction as disclosed by the testimony, the...