Rucker v. Mason
| Decision Date | 15 November 1916 |
| Docket Number | 7429. |
| Citation | 161 P. 195,61 Okla. 270,1916 OK 961 |
| Parties | RUCKER ET AL v. MASON ET AL. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
If a tenant wrongfully abandons leased premises before the expiration of the term, the landlord may give notice to the tenant of his refusal to accept the surrender or abandonment thereof, when such notice can be given, and he may take possession of the premises for the purpose of protecting and preserving them, and he may sublet the same for the unexpired term of the lease for the benefit of the lessee to reduce his damages.
In an action for the breach of a lease contract, the contract itself must furnish the measure of damages, and the amount recovered cannot, except in cases where recovery may be had for exemplary damages and penal damages, and in sections 2871 and 2878, Rev. Laws 1910, exceed the amount the party could have gained by a full performance of the lease contract on both sides.
Commissioners' Opinion, Division No. 2. Error from District Court, Tulsa County; H. B. Scheaffer, Judge Pro Tem.
Action by F. M. Rucker and another, copartners under the firm name and style of Rucker Bros., against J. P. Mason and others. Judgment for defendants, and plaintiffs bring error. Reversed and remanded for new trial.
Adams & Wills, of Claremore, and Randolph, Haver & Shirk, of Tulsa for plaintiffs in error.
Charles B. Rogers and Fred A. Fulghum, both of Tulsa, for defendant in error E. M. Brown.
The parties to this lawsuit stand in the same relative position here as they did in the trial court, and for convenience they will be designated here as they were there.
This action was filed in the district court of Tulsa county on the 20th day of March, 1912, for damages. It appears that the plaintiffs on the 27th day of October, 1909, leased the Hotel Rucker in Claremore, Okl., by a written lease for a term of five years from and after the 1st day of January, 1910, to the defendants J. P. Mason and E. M. Brown at a rental to be paid in advance on the first day of each month as follows For the first six months $300 per month; for the second six months $325 per month; for the second year $350 per month for the third year $400 per month; for the fourth year $450 per month; and for the fifth year $475 per month. The defendants in the lease agreed to furnish and equip the hotel throughout at their own expense in a modern and up-to-date manner, and to maintain it in such condition during the life of the lease. And they did so furnish and equip it. They occupied and operated it from the 1st day of January, 1910, up to the 1st day of December, 1911, when they abandoned it, at which time the plaintiffs served a written notice on them, which, by its terms, notified them that the plaintiffs refused to accept possession of the hotel or relieve the defendants from any rights, liabilities, or responsibilities as set out and specified by the terms of the lease contract, and that the plaintiffs would continue to look to and hold them for the payment of the rents and the faithful performance of all the terms and conditions of the lease, and that they would be asked to respond to them in damages for any and all loss which they may suffer by reason of their failure to comply with the terms and conditions set out in said lease; that the hotel and premises were at their disposal under the terms of the lease, and that the plaintiffs were willing and ready to perform all the covenants, agreements, and stipulations contained in the lease; that the plaintiffs would make such use of the hotel as they were able; and that they would lease the same for the balance of the term covered by the lease contract for the benefit of the defendants and for the purpose of reducing their damages.
It is alleged that while the lease contract was signed only by the plaintiffs and the defendants J. P. Mason and E. M. Brown, that the defendant B. C. Beane was at the time of the execution of said lease or later became a party thereto, and a state of facts is pleaded which it is contended is sufficient to establish the same liability against him as against the other defendants.
The defendants E. M. Brown and B. C. Beane filed separate motions to make the original petition more definite and certain, and also filed separate demurrers, which motions and demurrers were sustained in part and overruled in part, and exceptions were duly saved, whereupon an amended petition was filed, and other demurrers filed by said defendant which were overruled in part and sustained in part, and exceptions saved, whereupon a second amended petition was filed. There was also filed a first and a second supplemental petition.
In the first cause of action in the second amended petition it is alleged that at the time of the abandonment of the leased premises on the 1st day of December, 1911, there was due and owing as rents, under the terms of the lease, the sum of $2,027.84, and interest thereon, and judgment is asked for that amount.
In the second cause of action in said petition it is alleged that after the abandonment of the hotel and the serving of said notice on the defendants, the plaintiffs took possession of the same and continued in charge thereof from the 1st day of December, 1911, until the 2d day of January, 1912, during all of which time they were endeavoring to lease the same to other parties for the remainder of the term covered by said lease, and that on the 2d day of January, 1912, they succeeded in leasing the same to W. H. Evarts and John S. Watson for and on behalf of the defendants for the remainder of the time covered by the lease; that they went into the possession of the same and operated it until about the 1st day of March, 1912, when they abandoned it; and that after giving defendants credit for all rents received by the plaintiffs from the hotel, up to the 1st day of March, 1912, the defendants were liable to the plaintiffs for rents under the terms of the lease contract in the sum of $1,500, and interest thereon, and judgment is asked for that amount and interest.
In the third cause of action in said petition it is alleged that the plaintiffs during the time they were in possession of the leased premises from the 1st day of December, 1911, to the 1st day of March, 1912, for the purpose of diminishing the liability of the defendants to the plaintiffs and for the purpose of continuing, maintaining, and protecting the business established therein, the cost and expenses to which they were put exceeded all income and revenues derived therefrom in the sum of $417.75, and judgment is asked for that amount.
In the fourth cause of action of said petition it is alleged that the plaintiffs during the time they were in possession of the leased premises from the 1st day of December, 1911, to the 1st day of March, 1912, for and on behalf of said defendants, paid the sum of $111.56 taxes levied against the hotel furniture and equipment belonging to the defendants located on said premises, and that in order to prevent a sale and removal of the same therefrom they were forced to pay the same, and judgment is asked for that amount and interest.
A demurrer was sustained to the third and fourth causes of action, and exceptions duly saved.
On the 21st day of April, 1913, the plaintiffs filed their first supplemental petition, and in the first cause of action therein it is alleged that the rents which had accrued under the terms of said lease from the 1st day of April, 1912, to the 1st day of April, 1913, amounted to the sum of $5,134.70, and that the defendants are indebted to the plaintiffs for said amount as rents under the terms of said lease, but that they have wholly neglected and failed to pay the same, and judgment is asked for that amount, with interest thereon.
In the second cause of action in said supplemental petition it is alleged that while in possession of said leased premises from the 1st day of April, 1912, to the 1st day of April, 1913, and for the purpose of diminishing the liability of the defendants, the cost and expenses to which they were put exceeded the income therefrom in the sum of $1,844.90, and judgment is asked for that amount, with interest thereon. The defendant B. C. Beane interposed a demurrer to said supplemental petition, and the court overruled the demurrer to the first cause of action, but sustained it as to the second cause of action, and exceptions were duly saved.
On the 13th day of April, 1914, the plaintiffs filed their second supplemental petition, and the allegations in the first cause of action of the same are practically the same as the allegations in the first cause of action in the first supplemental petition, except that they ask for judgment for the rents accruing under the lease contract from the 1st day of May, 1913, to the 1st day of April, 1914, which it is alleged amounts to $5,676.10, and they ask judgment for that amount, with interest thereon. And the allegations in the second cause of action therein are practically the same as the allegations in the second cause of action in the first supplemental petition, with the exceptions that they ask for $1,844.90 damages, with interest thereon. A demurrer was filed to the second supplemental petition. The court overruled it as to the first cause of action, but sustained it as to the second cause of action, and exceptions were duly saved.
The separate answer of B. C. Beane is: (1) A general denial; and (2) it is affirmatively alleged that the defendants were evicted by the plaintiffs from the leased premises on or about the 1st day of December, 1911, and that since said date the plaintiffs have been wrongfully in possession of the same without the consent or acquiescence of the defendants.
The separate answer...
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