Ostenberg v. Scottsbluff Inv. Company
| Decision Date | 06 May 1921 |
| Docket Number | 21786 |
| Citation | 183 N.W. 95,106 Neb. 143 |
| Parties | WILLIAM H. OSTENBERG, JR., APPELLANT, v. SCOTTSBLUFF INVESTMENT COMPANY, APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Scotts Bluff county: RALPH W HOBART, JUDGE. Reversed.
REVERSED.
Morrow & Morrow, for appellant.
Wright Mothersead & York, contra.
This is an action in equity to enjoin the defendant from prosecuting an action of forcible entry and detainer instituted by the latter to regain possession of certain demised premises for the nonpayment of rent. A demurrer was filed on the ground that "said petition does not state facts sufficient to constitute a cause of action." The demurrer was sustained, and, plaintiff electing to stand on his petition the cause was dismissed. From this judgment the plaintiff appeals. The sole question we are to decide is whether a cause of action is stated in the petition.
The petition is quite lengthy, and, as no useful purpose will be subserved by setting it out in terms, we will content ourselves with a brief statement of the substance of such portions as will serve to make clear the precise point in controversy.
It appears that the plaintiff and the defendant are, respectively, the successors of the rights of the original lessee and lessor in the transaction. It further appears that on February 11, 1917, the defendant's grantor, who at that time was the owner of the premises in controversy, by a written lease, demised the premises to the plaintiff's assignor for a period of five years commencing February 11, 1917, and terminating February 10, 1922. The consideration to be paid was $ 9,600, payable as follows: $ 1,800 in cash upon the execution of the lease, and the sum of $ 160 on February 11, 1917, and a like sum on the 11th day of each succeeding month thereafter up to, and including, January 11, 1921, and the sum of $ 120 on February 11, 1921, at which time the payment of rent was to cease. It was the intention of the parties that the monthly installments of rent, together with the $ 1,800 cash payment, would constitute the entire rental for the full period of the lease. The lease contained a provision that, if the lessee failed, neglected, or refused to fulfil or keep any of the covenants of the lease, the lessor had the right at his option to declare the lease at an end, and in such case the lessee agreed to yield up peaceable possession of the premises, and the sum of $ 1,800 advanced in payment of the last installment of rent was to be forfeited to the lessor. It is alleged that since the defendant became the owner of the premises the rent has not at all times been punctually paid, but that the defendant received and accepted the same without objection or protest, and thereby waived the strict performance of the covenants of the lease in that respect. It is also alleged that on July 20, 1920, the plaintiff mailed to the defendant his check for $ 160 in payment of the rent due and payable on July 11, and again in like manner on August 17 his check for $ 160 in payment of the rent due and payable on August 11; that plaintiff discovered that the two checks above mentioned had never been cashed, and thereupon spoke to one of the defendant's officers about it, who replied that he would "look into the matter and straighten it up;" that on September 16 the plaintiff again mailed his check to the defendant for $ 160 in payment of the rent due September 11, 1920. On September 17 the defendant served notice on the plaintiff that it had elected to declare the lease at an end, giving as a reason therefor the failure of the plaintiff to make the payments of the installments of rent due July 11, August 11, and September 11, and on the same day served a notice on the plaintiff to quit the premises, stating in the notice that, if the plaintiff failed to comply therewith within 3 days, legal proceedings would be commenced to obtain possession of the premises. On September 18 the defendant returned to the plaintiff his check of September 16. On receiving the notice to quit, the plaintiff immediately tendered to the defendant the entire amount of rent in arrears, which the defendant refused to accept. It is further alleged that the defendant has commenced an action of forcible entry and detainer against the plaintiff; that at no time has defendant ever made demand for the rent or returned or offered to return the $ 1,800 cash paid in the beginning, or any part thereof; that the plaintiff has spent large sums in furnishing and fitting the premises for conducting therein a moving picture theatre, and that it is impossible to secure another location; that the enforcement of the forfeiture will impose upon the plaintiff great and irreparable injury, for which he has no adequate remedy at law. The plaintiff offers to do equity and prays the intervention of the equity power of the court to prevent a forfeiture of the lease.
From the foregoing...
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