Monks v. Hess

• Citation: 53 S.D. 243,220 N.W. 490
• Decision Date: 14 July 1928
• Docket Number: 6390
• Court: South Dakota Supreme Court
• Parties: MAY H. MONKS, Individually and as Executrix of the Will and Estate of John I. Monks, deceased, et al., Plaintiffs and respondents, v. SAMUEL B. HESS et al., dba Hess & Rau, Defendants and appellants.

53 S.D. 243

220 N.W. 490

MAY H. MONKS, Individually and as Executrix of the Will and Estate of John I. Monks, deceased, et al., Plaintiffs and respondents, v. SAMUEL B. HESS et al., dba Hess & Rau,

Defendants and appellants.

South Dakota Supreme Court

Appeal from Municipal Court, Watertown, SD

Hon. Geo. H. Marquis, Judge

File No. 6390—Affirmed

Case & Case, Watertown, SD

Attorneys for Appellants.

Irvin H. Myers, Watertown, SD

Attorneys for Respondents.

Opinion filed July 14, 1928

MORIARTY, C.

This action was brought to recover rents alleged to be due to plaintiffs under the terms of a lease. The trial court made its findings and conclusions in favor of the plaintiffs and entered judgment accordingly. From such judgment and from an order denying a new trial, the defendants appeal.

There is no conflict in the evidence, and the facts shown by the record are as follows:

On November 6, 1922, the plaintiffs were the owners of certain real property in the city of Watertown. On that date said owners entered into a written contract with McCarthy Bros. Theatrical Company whereby they leased to said theatrical company the aforesaid real property for the term of one year. The lease granted to the lessees the use of said property for billboard purposes, at an agreed rental of $40 per year, commencing December 7, 1922, and ending December 6, 1923. The lease further provided that it should not be assignable without the written consent of the lessor, and that it might continue “from year to year upon the payment to first party by second party the annual rental on or before the commencement of each year.” The McCarthy Bros. Theatrical Company paid the first year’s rental.

In the month of May, 1923, Hess & Rau, the appellants herein, purchased from the McCarthy Bros. Company the theatrical business then being operated by said company in the city of Watertown, and the vendors gave to the vendees a writing denominated a bill of sale in which were listed the property rights conveyed to Hess & Rau. The instrument contains the following provision:

“This bill of sale is also to cover the leases, right, title and interest of the parties of the first part to leases and right to and upon the billboards upon the certain [describing certain real properties one of which is the property involved in this action].”

The appellants took possession of the billboards which were located on respondents’ property and continued to use them, not only during the year for which McCarthy Bros. Theatrical Company had paid the rent, but for the three succeeding years. No rent was paid except that paid for the year ending December 6, 1923.

One of the defendants testified that he is a member of the firm of Hess & Rau; that Hess & Rau had received the bill of sale above referred to; but further testified that he had never seen the lease before; “neither that exhibit nor a copy of it was turned over when we took this business or property from McCarthy Bros. I did not know there was any contract of this kind in existence until I saw a copy of it in the complaint of this action.”

The plaintiff submitted no evidence as to the value of the occupancy of the property, but relied upon the theory that the acts of the defendants constitute an acceptance and renewal of the lease.

The appellants admit that they are indebted to respondents for the rents, but contend that, under the facts shown by the record, the respondents must prove the reasonable value of the occupancy and cannot recover on the lease.

Appellants’ counsel say in their brief: “Can defendants and appellants be bound under the terms of a contract which was not known to them until the action was brought?” And this is the only...