Schrage v. Miller

• Decision Date: 16 April 1895
• Docket Number: 6419
• Citation: 62 N.W. 1091,44 Neb. 818
• Parties: GUS SCHRAGE ET AL., APPELLEES, v. L. N. MILLER ET AL., APPELLANTS
• Court: Nebraska Supreme Court

62 N.W. 1091

44 Neb. 818

GUS SCHRAGE ET AL., APPELLEES, v. L. N. MILLER ET AL., APPELLANTS

No. 6419

Supreme Court of Nebraska

April 16, 1895

APPEAL from the district court of Dodge county. Heard below before SULLIVAN, J.

REVERSED.

Frick & Dolezal, for appellants, cited: 15 Am. & Eng. Ency. Law, 19; Knapp v. Brown, 45 N.Y. 207; Muldoon v. Pitt, 54 N.Y. 269; Hickmann v. Pinkney, 81 N.Y. 216; Cornell v. Barney, 94 N.Y 394; Boteler v. Espen, 99 Pa. 313.

Fred W Vaughn, contra, cited: O'Neil v. St. Olaf's School 26 Minn. 329; Meyer v. Berlandi, 40 N.W. [Minn.], 513; Laird v. Moonan, 32 Minn. 358; Hill v. Gill, 42 N.W. [Minn.], 295; Bohn Mfg. Co. v. Kountze, 30 Neb. 719; Henderson v. Connelly, 123 Ill. 98; Millsap v. Ball, 30 Neb. 728; Pomeroy v. White Lake Lumber Co., 33 Neb. 243.

OPINION

RYAN, C.

The defendants Edwin L. and Josephine A. Eno, on the 4th day of November, 1888, leased their Hotel known as the Eno Hotel to A. F. Diver for a term of three years, to begin on January 1 1889. The lessee agreed to take the property leased in the condition in which he should find it when it should be vacated at the commencement of his lease "and not ask of said first parties, the lessors, any money or outlay for repairs during the continuance of said lease, except for such damages as might be caused by the elements." Furthermore, the lessee agreed to put the sum of $ 1,200 cash in repairs on said premises, such as painting, papering, kalsomining, etc., but particularly to immediately paint veranda and front of hotel three coats, to be of lead and oil, and first-class work and material, such expense to be included in said outlay of $ 1,200. On the 5th day of July, 1889, the lessee assigned his interest in the above lease to Louis N. and Katie C. Miller, by whom, thenceforward, the conditions thereof were assumed. The theory upon which the right to an affirmance of the judgment of the district court of Dodge county enforcing a mechanic's lien against the above property must be founded, if at all, must be circumscribed by the statements of the affidavit filed by the appellees. The portion which has any bearing on this question was in this language: "Gus Schrage, being first duly sworn, says that affiant and C. H. Stoner, under and by virtue of a verbal contract entered into with L. N. Miller and Katie C. Miller, lessees and proprietors of the Eno Hotel, in the city of Fremont, Nebraska, held and occupied by them under and by virtue of a contract and lease executed and made by Edwin L. Eno and Josephine A. Eno with A. F. Diver, and which lease and contract was sold and assigned by said A. F. Diver to said L. N. Miller and Katie C. Miller, by and with the consent of said Edwin L. Eno and Josephine A. Eno, whereby the said lessees were bound and compelled to make repairs upon said Eno Hotel for a given sum as part rent and consideration of said lease, that, under and by virtue of said contract, this affiant and said C. H. Stoner furnished material, consisting of wall paper and paint, and performed work and labor in connection with said wall paper and paint in repairing and fixing said rooms of said Eno Hotel to the amount of one hundred and sixty-seven 58/100 ($ 167.58) dollars, upon which there has been paid and credited the sum of one hundred and sixteen 40/100 ($ 116.40) dollars, leaving a balance due this affiant and C. H. Stoner of the sum of fifty-one 18/100 ...