Nelson v. Deering Implement Co.
| Decision Date | 02 May 1950 |
| Docket Number | No. 47598,47598 |
| Citation | 42 N.W.2d 522,241 Iowa 1248 |
| Parties | NELSON v. DEERING IMPLEMENT CO. |
| Court | Iowa Supreme Court |
Leonard S. Nelson, of Ogden, for appellant.
John W. Jordan, of Boone, for appellee.
This is the second appeal in this case. Krug v. Deering Implement Co., 239 Iowa 157, 30 N.W.2d 729. In an opinion of this court filed February 10, 1948, the decree of the lower court was reversed and the cause remanded for further proceedings therein, not inconsistent with that opinion. The principal issue left to be determined was that of damages claimed against the defendant for its holding possession of leased premises after the termination of its lease, which lease, this court held terminated on June 1, 1946. Following said remand and procedendo and some additional pleadings, the trial court passed upon the issues and entered a decree from which an appeal was taken by plaintiff herein.
I. In the first proceeding and in the former appeal, Krug and wife owned certain real estate in Boone, Iowa. Appellee was the lessee thereof. Subsequent to the opinion Krug and wife assigned all of their rights in and to the leased premises and their claims for damages against lessee to Arthur C. Nelson, appellant herein. They have no interest in the present proceeding.
The original action was in equity to quiet title and to obtain possession of the leased property then occupied by appellee herein and to recover damages for the unlawful detention thereof and for general equitable relief. The Deering Implement Company claimed the right to hold over under the terms of an extension agreement in its lease. This claim was denied in this court.
The procedendo which was filed March 15, 1948, in the District Court of Boone County, Iowa, contains the following:
Various pleadings were filed after the filing of the procedendo. We will make brief reference thereto.
On April 3, 1948, plaintiff-appellant filed herein what he termed 'Application for order of court.' This application makes reference to the original appeal, the opinion, the procedendo, the claim for damage in the original petition, the continued possession of the leased property by appellee, its refusal to vacate and damages suffered by plaintiff-appellant by the refusal of appellee to vacate the property.
The allegations for damages are ten in number and may be summarized as follows:
First: The unwarranted claim of defendant and the withholding possession created a cloud on the title of plaintiff and has prevented the completion of the sale of the property and loss of use of the sale price thereof.
Second: Such possession has prevented completion of plans to complete a building on a vacant lot--a part of the leased premises.
Third: Damages by increased building costs.
Fourth: Damages in expense of preparing to build.
Fifth: Damages on account of being unable to enter into another lease.
Sixth: Damages on account of losing a profitable lease to a motor sales agency.
Seventh: Damages caused by necessity to employ attorneys to secure removal of lessee from premises.
Eighth: Damages as long as lessee remains in possession.
Ninth: Damages in that the leased property will be unoccupied for an indefinite period after lessee removes therefrom.
Tenth: Damages in that the lessee's continued possession prevents a further lease of the property, the starting construction of a new building, all aggravating the damages.
This last item was a part of an amendment filed May 10, 1948. This amendment recited that the Deering Implement Company was still in possession of the premises and refused to turn them over to the owner and prayed for an order of eviction. Appellee filed resistance to said application for eviction.
On July 3, 1948, Hon. H. E. Fry, Judge, refused to order an eviction of the Deering Implement Company until a hearing was held on the matter of damage.
On July 8, 1948, an application was filed by appellee to strike the claims for damages as set out above, being one to ten, inclusive, on the grounds that the allegations therein contained did not call for the proper measure of damage, and that such allegations were speculative only and remote and are incompetent, irrelevant and immaterial.
On August 4, 1948, Hon. John M. Schaupp, Judge, sustained such motion on the grounds that the portions sought to be stricken allege damages which are not recoverable in this cause.
On May 2, 1949, appellant amended the prayer of his petition and therein asked for double damages for holding over after the lease had expired.
The record further shows that on August 7, 1948, the parties entered into a stipulation for the leasing of the premises to the appellee for a three year period, and the agreed rental thereof, but left undetermined the amount of damages for the failure of appellee herein to surrender possession of the leased premises. Such stipulation was signed by Arthur C. Nelson, as first party, and James J. Deering, as second party. Parts of the recitals thereof related to the claims of such parties in and to the leased premises, and damages incident to the possession thereof. Following we will set forth parts of said stipulation which deal directly with some matters involved in this appeal.
'Whereas, the District Court of Boone County, Iowa, dismissed the petition of Krugs, which ruling was reversed by the supreme court, which court held the Deering Implement Company to be in illegal possession of the said real estate and directed the said district court to determine the damages to the appellants in such action, and
'Whereas, Arthur C. Nelson and James J. Deering have been unable to agree upon the damages properly due the said Arthur C. Nelson as a consequence of the holding over and the illegal possession of said real estate, and
'Whereas, Arthur C. Nelson has offered to lease such property to James J. Deering for a period of three years upon certain conditions, such lease to begin on the date of the payment of damages as awarded by the district court, and
'Whereas, James J. Deering has paid to Martin Krug the sum of $85.00 monthly beginning June, 1946, and ending in March, 1948, which payments total in the amount of $1,870.00, now therefore, the following agreement is made and entered into.
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'It is further agreed that the second party shall pay the costs in the quiet title action, as may be accrued to date hereof, immediately on the execution of this agreement.
As before stated, the procedendo was filed in the district court at Boone, Iowa, on March 15, 1948. The records of this court show that appellant herein, on April 3, 1948, petitioned that court to order an eviction of appellee from the premises pursuant to the opinion of this court upon which the procedendo was based; that such notice of such demand was served upon attorneys for appellee on July 16, 1948. Such application was heard and the district court refused to order an eviction. Later appellant filed in this court an application praying for an order evicting appellee from said premises and attaching thereto the ruling of Judge H. E. Fry wherein said eviction was denied. On the 29th day of July, 1948, this court made an order which in part was as follows:
'It is therefore ordered that the district court of Boone county, Iowa, forthwith issue an appropriate order for the eviction of defendant, Deering Implement Company, from the property in question.'
Following such order the parties entered into the stipulation and lease referred to.
It will be observed that the stipulation and lease removed from the issues all except the claims for special and double damages. A hearing was had on the remaining issues in May, 1949, and on July 14, 1949, the district court made a finding of fact and conclusion of law. In it the court referred to the ruling of Judge Schaupp on the motion to strike and stated that as no appeal had...
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