Muller v. Harms
| Decision Date | 28 November 1928 |
| Docket Number | 26156 |
| Citation | 221 N.W. 898,117 Neb. 657 |
| Parties | LUCY MULLER, GUARDIAN, APPELLANT, v. ERNEST A. HARMS ET AL., APPELLEES |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: CHARLES LESLIE JUDGE. Reversed.
REVERSED.
Fischer & Fischer and J. Gerald MacVeigh, for appellant.
J. C Travis, contra.
Heard before GOSS, C. J., ROSE, THOMPSON and EBERLY, JJ., and REDICK and STALMASTER, District Judges.
This is an action to recover $ 450, the amount of a claim for two monthly installments of unpaid rent, each for $ 225. The property for which rents are claimed is the Apollo Theatre at 2824 Leavenworth street, Omaha. It was formerly owned by Fritz Muller, now deceased. He left surviving him his widow and their two minor sons, Walter Frederick Muller and Paul Ernest Muller. Charles B. Schleicher, administrator of decedent's estate, entered into a lease demising the Apollo Theatre to Ernest A. Harms and Mathilda A. F. Harms for a term of five years for $ 13,500 payable in installments of $ 225 on the first day of each month beginning January 1, 1926. The lease was in writing and was formally executed by lessor and lessees. The latter paid the monthly rents from January 1, 1926, until October 1, 1926, but in the meantime, September 24, 1926, gave notice that they would terminate their tenancy October 31, 1926. The attempt to do so was resisted and this suit was brought to recover the installments due under the lease November 1, 1926, and December 1, 1926. The administrator settled decedent's estate and was discharged. These and other facts were pleaded in detail by plaintiff. The plaintiff is Lucy Muller, guardian of the two minors. The lessees are defendants.
To the petition a general demurrer was interposed by defendants and sustained by the court. Plaintiff refused to plead further and her action was dismissed. From that judgment she has appealed.
Plaintiff contends as pleaded that defendants are bound by the lease and that they are indebted to her for two months' rent. Defendants take the position that the administrator had no power to make the lease and that it was void, because it provided for a long tenancy after the settlement of decedent's estate. A determination of the controversy requires consideration of additional facts stated in the petition. When Fritz Muller was owner of the Apollo Theatre he leased it to defendant Ernest A. Harms December 1, 1922, for a term of three years beginning January 1, 1923. The consideration named was $ 6,300 payable in monthly installments of $ 175 each. A chronology of events fully pleaded by plaintiff in her petition follows:
November 4, 1923, Fritz Muller died, leaving a will devising the Apollo Theatre to his two minor sons, Walter Frederick Muller and Paul Ernest Muller--a will subsequently probated; January 22, 1924, Charles B. Schleicher granted letters of administration with the will annexed; April 8, 1925, and prior thereto, defendants solicited the administrator and also Lucy Muller, mother and natural guardian of the two minors, for a new lease extending the tenancy beyond the terms of the old and offering increased rents; April 8, 1925, administrator, with the consent and approval of plaintiff, under authority of the county court, accepted the offer of defendants and with them entered into a lease demising the Apollo Theatre to them for a term of five years for $ 13,500, payable in monthly installments of $ 225 each, beginning January 1, 1926; April 9, 1925, Lucy Muller appointed and qualified as guardian of the minors; May 27, 1925, entry of decree by county court that the Apollo Theatre passed to the minors by will of their father; May 27, 1925, final account of administrator approved; June 2, 1925, debts paid and estate distributed; January 14, 1926, administrator discharged, leaving plaintiff as guardian in control of the persons and the property of her two minor sons. September 24, 1926, defendants notified plaintiff they would terminate their tenancy and vacate the premises October 31, 1926. The facts summarized were fully stated in the petition.
By means of copies the will, the two leases and notice of lessees' purpose to terminate the tenancy were included in the petition. Plaintiff alleged also that defendants paid to her the rent under the first lease from July 1, 1925, to and including December, 1925 and under the new lease from and including January, 1926, to and including October, 1926; that the rent for November and ...
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