Nathan v. Freeman
| Decision Date | 11 April 1924 |
| Docket Number | 5429. |
| Citation | 225 P. 1015,70 Mont. 259 |
| Parties | NATHAN v. FREEMAN ET AL. |
| Court | Montana Supreme Court |
Rehearing Denied May 19, 1924.
Appeal from District Court, Cascade County; H. H. Ewing, Judge.
Action by A. Nathan against Waldo Freeman, executor of the estate of L. E. Freeman, deceased, and others. Judgment for plaintiff for an insufficient amount, and plaintiff appeals. Reversed and remanded.
O'Leary & Doyle, of Great Falls, for appellant.
Freeman Thelen & Frary, of Great Falls, for respondents.
This action was instituted to recover the total sum of $14,536 alleged to be due the plaintiff on certain lease contracts of a building in the city of Great Falls. After issue had been joined by the pleadings, the parties stipulated as to the facts, and the cause was submitted to the court for decision. The court found that the plaintiff is entitled to recover from Waldo Freeman as the executor of the estate of L. E Freeman, deceased, and Waldo Freeman personally, the sum of $731.89 principal and interest for rent due, and against the plaintiff on his additional demands. Judgment was entered accordingly, and the plaintiff has appealed.
It appears that on April 1, 1912, the plaintiff and one L. E Freeman, now deceased, entered into a lease agreement whereby L. E. Freeman leased a certain storeroom known as the "Cobb Block," for a period of five years at $175 per month, payable in advance, same to be used for a moving picture or vaudeville show house. Privilege was given the lessee to renew the lease for an additional period of five years at $200 per month, provided notice of his intention to so renew was given at least six months prior to April 1, 1917. Further, it was agreed that the lessee should place the floor
A supplemental agreement was entered into, the date of which is not shown, by virtue of which the lessee, L. E. Freeman, was given permission to build an addition to the leased premises at his own expense, which, when completed, was to become a part of the building and be the property of the lessor; it being provided that, if in consequence of the construction of such addition the lessor is assessed a greater sum on the property, the lessee, L. E. Freeman, agreed to pay the increase in the assessment above the amount that the building was then assessed, and further agreed that upon demand of the lessor he would pay such assessment to the lessor.
Upon the execution of the lease April 1, 1912, L. E. Freeman "entered into the possession and occupancy" of the premises under the lease and the renewal thereof and the supplemental contract, and remained in possession until on or about the 26th day of April, 1919, upon which date he died, the lease, renewal thereof, and supplemental agreement being all then in full force and effect.
It is admitted that, after the death of L. E. Freeman, Waldo Freeman retained possession of the leased property until on or about November 25, 1921, but it is averred that he did so as the executor of the last will and testament of L. E. Freeman, deceased. Further it is agreed that:
After the death of said L. E. Freeman, and before the appointment of Waldo Freeman as executor, there was no change in the occupation of the premises, and that during such period the picture theater operated by L. E. Freeman before his death was continued in the premises under the management of defendant Waldo Freeman. That defendants Waldo Freeman and Carrie L. Freeman are the heirs of L. E. Freeman, deceased, and his son and widow respectively. That upon the death of L. E. Freeman Waldo Freeman was on or about the 7th day of May, 1919, by an order of the district court appointed executor of the last will and testament of L. E. Freeman, deceased. That thereafter and on the 7th day of May, 1919, Waldo Freeman duly qualified as such, and on that date letters testamentary were duly issued to him, and that ever since he has been and now is the duly appointed, qualified, and acting executor of the last will of L. E. Freeman, deceased. That after his appointment as such executor he occupied the leased premises up to on or about the 25th day of November, 1921, and paid the rent stipulated in the lease to be paid up to the 1st day of August, 1921, and that thereafter no rent has been paid on the premises by the defendants under the lease or otherwise. That on the 25th day of November, 1921, the plaintiff because of the default in the payment of rent re-entered and took possession of the premises, and elected to cancel the lease pursuant to the terms thereof.
That at the time L. E. Freeman took possession of the premises there was in the premises a wood floor in good condition and repair and constructed as floors are ordinarily constructed in buildings used for store purposes; and that there was at that time a front in the building in good condition and repair and constructed of brick and glass as is ordinarily used for fronts in buildings used for store purposes; and that, when L. E. Freeman took possession of the premises, he removed from the building the floor, and placed therein instead a sloping floor, constructed of wood, as is ordinarily used in buildings used for moving picture purposes, and removed the front from the building, and constructed a front therein fit only to be used in a building used as a moving picture theater. That on the 28th day of November, 1921, the plaintiff notified the defendants above named that he, the plaintiff, desired them to replace in the building a level floor of the kind and in as good condition and repair as there was in the building at the time L. E. Freeman took possession thereof, and to replace in the building a front of the kind and in as good condition and repair as was the front of the building at the time L. E. Freeman entered into the possession of the premises. That the defendants and all of them refused to comply with such request in any manner whatsoever, and failed to replace the front and floor of the building. That at the time of such refusal by the defendants, and at all times thereafter, the reasonable cost of replacing the front and floor of the building as provided in the lease was and is the sum of $1,500. That under the terms of a supplemental agreement L. E. Freeman constructed upon the leased premises a building on account of which plaintiff was assessed and paid taxes for the years 1920 and 1921 in the sum of $57.97 and $58.61 respectively.
That Waldo Freeman, as the executor of the will of L. E. Freeman, deceased, published, according to law, a notice to creditors of the estate in the Great Falls Daily Tribune, a newspaper of general circulation, published in Cascade county, pursuant to an order of the court made and entered in the matter of the estate of L. E. Freeman, deceased, according to law, to present their claims to the executor at rooms 14-16 in the Conrad Bank Building in the city of Great Falls, the same being the place for the transaction of the business of the estate in the county of Cascade, within ten months after the first publication of the notice. That notice to creditors was so published the first time on the 17th day of June, 1919, and thereafter for four successive weeks. That none of the claims herein sued upon and set forth in the complaint in this action, nor any claim of any kind or character arising out of the lease, supplemental agreement, or the renewal of the lease, as set forth and described in plaintiff's complaint, or otherwise, or at all, was ever presented by the plaintiff or by any one for and on his behalf. That the lease was included in the list of assets in the inventory and appraisement returned by the defendant Waldo Freeman as such executor, as follows: "Gen. Lease April 1, 1917, to Apr. 1, 1922--$ nil." That between November 25, 1921, and April 1, 1922, the premises were not rented by plaintiff, and remained vacant, and no rent was derived by the plaintiff therefrom, and that during that period plaintiff was unable to rent the premises or to secure a tenant therefor at a rental exceeding $150 per month.
Upon the admitted facts plaintiff complains that the trial court erred in deciding that he...
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