Prior v. Sanborn County

• Decision Date: 02 September 1899
• Citation: 80 N.W. 169,12 S.D. 86
• Parties: PRIOR et al. v. SANBORN COUNTY.
• Court: South Dakota Supreme Court

80 N.W. 169

12 S.D. 86

PRIOR et al. v. SANBORN COUNTY.

Supreme Court of South Dakota

September 2, 1899

Appeal from circuit court, Sanborn county; Frank B. Smith, Judge.

Action by Charles H. Prior and others against Sanborn county. From a judgment for plaintiffs, and an order overruling a motion for a new trial, defendant appeals. Reversed.

T. H Null and W. F. Kenfield, for appellant. John T. Kean, for respondents.

FULLER J.

This action, to recover rent for a period of one year after the defendant had vacated a building occupied by its officers as a court house, resulted in a verdict of $300 directed in favor of plaintiffs; and from a judgment accordingly entered and an order overruling a motion for a new trial, defendant appeals.

No question as to the legal sufficiency of the five-year lease made the basis of this action is within the issues presented by the pleadings, nor was the point raised below that the following resolution of the board of county commissioners contravenes the statute of frauds: "The proposition from Prior, Hinds (Bank of Woonsocket), and Summerfield to lease to the county the court-house building for five years for the annual rental of $400.00. On motion, the proposition is accepted." Whether the foregoing record is sufficient to take the agreement out of the statute need not be determined because the failure to raise the point in the trial court constitutes a waiver, and it is now too late to urge the objection for the first time. Cosand v. Bunker, 2 S D. 294, 50 N.W. 84. The only recitals of the answer relating to the contract are "that about January 1 1893, defendant was in possession of the premises described in plaintiff's complaint, and that said premises were used as a court house, for county offices, and court room and jail; that about April 1, 1893, plaintiffs submitted a proposition to the county commissioners of said Sanborn county, then in session, wherein and whereby plaintiffs agreed to rent said premises to defendant for the purpose above named for five years, at the annual rental of four hundred dollars; *** that the said commissioners then in session, by resolution duly entered of record, accepted said proposition." That the building, through no fault of appellant, became unsafe and untenantable, and that respondents, after due and proper notice, utterly failed and repeatedly refused to repair the same, thereby compelling the officers of appellant to remove therefrom into other quarters, is the only defense relied upon; and an assignment of error relating to the rejection of testimony upon the question of notice presents for review the only matter occurring at the trial. After the introduction of testimony sufficient to sustain a finding by the jury that the building was greatly out of repair and untenantable, appellant offered to prove by parol that the sheriff and county auditor frequently informed the owners of the building of its dilapidated condition, and requested that necessary repairs be made in the several apartments. This offer, together with a written notice of the intention of appellant to vacate the building, served upon respondents by request of the county commissioners, was excluded, upon the theory that no authority of the parties making the complaint and signing the notice was disclosed by the recorded proceedings of the board of county commissioners, and that no other...