Nordquist v. W. A. Simons Co.

• Citation: 28 P.2d 207,54 Idaho 21
• Decision Date: 21 December 1933
• Docket Number: 6017
• Parties: JOHN H. NORDQUIST, Respondent, v. THE W. A. SIMONS COMPANY, an Idaho Corporation, Appellant
• Court: United States State Supreme Court of Idaho

28 P.2d 207

54 Idaho 21

JOHN H. NORDQUIST, Respondent, v. THE W. A. SIMONS COMPANY, an Idaho Corporation, Appellant

No. 6017

Supreme Court of Idaho

December 21, 1933

LANDLORD AND TENANT-ACTION FOR RENT-PLEADING-PROOF-VARIANCE - TRIAL - INSTRUCTIONS - APPLICABILITY TO EVIDENCE AND PLEADING-EVIDENCE-ORDER OF SUBMISSION.

1. In action for rent based on written lease of theatre and not upon quantum valebat, instructions relating to recovery of reasonable rental value held to warrant new trial.

2. Trial court must confine itself to statement of legal principles in instructions as are applicable to evidence admitted on issues made by pleadings.

3. Trial court should not give instruction which tenders issue not supported by pleadings and evidence, or which deviates therefrom in any material respect.

4. In action for rent based on written lease of theatre and not upon quantum valebat, evidence could not authorize verdict for reasonable rental value.

5. Trial court should require landlord to submit all his proof in support of complaint for rent of theatre before resting rather than some proof before and considerable afterward in rebuttal.

APPEAL from the District Court of the First Judicial District, for Shoshone County. Hon. Albert H. Featherstone, Judge.

Action to recover rent, based on a written lease. Judgment for plaintiff and respondent. Reversed and remanded, with instructions to grant a new trial.

Judgment reversed, with instructions. Costs to appellant.

Walter H. Hanson and F. C. Keane, for Appellant.

An instruction which is not responsive to the pleadings of the parties or the proof introduced and which misleads the jury is erroneous and prejudicial. (Osier v. Consumers' Co., 41 Idaho 268, 239 P. 735; Austin v. Brown Brothers Co., 30 Idaho 167, 164 P. 95; Lloyd v Anderson et al., 39 Idaho 314, 227 P. 32.)

It is an abuse of discretion for the trial court, without any reason being shown therefor, to permit the plaintiff under the guise of rebuttal to enter upon his alleged case and again prove the same facts that were proven in making his prima facie case. (Sec. 7-206, I. C. A.; Yankee Jim's Union Water Co. v. Crary, 25 Cal. 504, 85 Am. Dec. 145; Cowart Co. v. Sheffield, 18 Ga.App. 512, 89 S.E. 1101.)

H. J Hull, for Respondent.

Where an immaterial variance between the pleadings and proof occurs, it is optional with the court to order an amendment of the pleadings, or direct the jury to find the fact in accordance with the evidence. (Sec. 5-901, I. C. A.; Joyce v. Rubin, 23 Idaho 296, 130 P. 793.)

Either party is entitled to introduce evidence to rebut that of his adversary, and where a party offers relevant testimony in rebuttal, it is error to reject it, although it tends to support his case in chief. (38 Cyc. 1343; Cluer v. Leahy, 44 Idaho 320, 256 P. 760.)

HOLDEN, J. Budge, C. J., and Morgan, Givens and Wernette, JJ., concur.

OPINION

HOLDEN, J.

The respondent was the owner of certain property located at Wallace, Idaho, called the Liberty Theatre. August 27, 1928, he leased, in writing, that property to the appellant for a term of three years, commencing September 1, 1928, and ending September 1, 1931, at a monthly rental of $ 175 per month. Appellant occupied the leased premises and paid the rent as provided by the lease. July 30, 1931, appellant gave respondent written notice that it would vacate the property at the expiration of the term. Upon the expiration of the term, appellant continued in possession of the premises up to and including May 28, 1932. June 13, 1932, the respondent commenced this action against appellant to recover ten months' rent at the rate of $ 175 per month, the monthly rental fixed by the lease. The cause was tried by the court, sitting with a jury, at the December, 1932, term of the district court for Shoshone county. The jury returned a verdict and the court rendered judgment in favor of respondent, from which judgment defendant appeals to this court.

Appellant complains that certain instructions given by the court covering the reasonable rental value of the theatre were erroneous, for the reason that there was no evidence of reasonable rental value and also for the reason that no issue as to the reasonable rental value of the property was raised or formed by the pleadings. It, therefore, becomes important to determine the issues as formed by the pleadings.

The first paragraph of respondent's complaint alleges the corporate existence of the appellant; the second alleges the execution of the written lease by which the property was leased for a term of three years commencing September 1, 1928, and ending September 1, 1931; sets forth a description of the property leased, pleads and makes that instrument a part of his "complaint as fully and with the same effect as though pleaded in haec verba."

Paragraph numbered three alleges that:

"The defendant entered into possession of said leased premises under the terms of said lease, Exhibit 'A,' and remained in possession thereof, and paid all rent accruing thereunder for the full term of said lease, to-wit, until the first day of September, 1931. Upon the expiration of the term of said lease, on the 1st day of September, 1931, the defendant held over and continued in possession of said premises to and including the 28th day of May, 1932, at which time the defendant, without previous notice to the plaintiff, vacated and abandoned said premises."

And the fourth and last paragraph alleges that:

"The defendant has failed, refused and neglected to pay the rent upon said premises since the 1st day of September, 1931, and there is now ten months rent, at the rate of $ 175.00 per month, to-wit, rental from the 1st day of September, 1931, to the 1st day of June, 1932, both inclusive, or the total sum of One Thousand seven hundred fifty dollars ($ 1,750.00) due and owing to the plaintiff from the defendant. Payment thereof has been demanded and no part thereof has been paid."

The written lease, so pleaded, contains the following clause: "And if the party of the second part (appellant) shall hold over the said term without the consent, express or implied, of the party of the first part (respondent), such holding shall be construed to be a tenancy only from month to month."

Appellant answered and counterclaimed. It admitted paragraph numbered one alleging its corporate existence, as well as paragraph numbered two alleging the execution of and pleading the written lease. It also admitted entering into possession of the premises under the lease, its occupancy of the property during the full three year term, and its abandonment of the premises in the latter part of May, 1932, and then denied each and all of the other allegations of the complaint. By its counterclaim and affirmative defense, appellant, among other things, pleaded: That July 30, 1931, it gave respondent notice of its intention to vacate the leased premises, annexing a copy of the notice; that shortly prior to the expiration of the lease an oral agreement was reached between the parties in substance to the effect that appellant could occupy the theatre pending and during negotiations for a new lease, and that if a new lease should not be agreed upon, then that no charge would be made for the occupancy of the property. The counterclaim and affirmative defense contain other allegations, but we do not deem such allegations material to the consideration of any question raised on this appeal.

It appears, then, from the complaint, that respondent sought to recover ten months' rent (the period during which appellant remained in possession of the property after the expiration of the lease), at the rate of $ 175 per month (the exact monthly rental fixed by the lease), and also that he based his right to recover squarely upon the terms and conditions of the written lease, coupled with the fact of such occupancy of the property by appellant. The appellant denied the allegations of the complaint upon which respondent based his right to recover, and then and for the purpose of defeating a recovery, pleaded the alleged and above-stated oral agreement. Therefore, if respondent was entitled to recover at all, it would necessarily have to be upon the case stated in his complaint, and not upon any other. In other words, respondent was entitled, under his complaint and the evidence he adduced in support of that complaint, to recover for ten months' rent, at the rate of $ 175 per month, or the total sum of $ 1,750, or he was not entitled to recover any sum or amount whatever, and that that was the view and the theory of the respondent himself is placed beyond serious controversy by the following excerpt from the opening statement to the jury:

"It is therefore our contention in this case that he (respondent) is entitled to recover rent for the nine months they (appellant) occupied the building (theatre) and an additional month because of their failure to give him notice of their discontinuance on the first of May, and that that rent is due at $ 175.00 per month."

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