Schultz v. Provenzano, 3700
| Decision Date | 08 December 1952 |
| Docket Number | No. 3700,3700 |
| Citation | 69 Nev. 324,251 P.2d 294 |
| Parties | SCHULTZ v. PROVENZANO. |
| Court | Nevada Supreme Court |
Cleveland Schultz, Jr., Las Vegas, for appellant.
David Zenoff, Las Vegas, for respondent.
Provenzano sued Schultz for the last three months' unpaid rental at $250 a month on a three-year written lease. From a judgment in plaintiff's favor and from the order denying defendant's motion for new trial, the defendant has appealed. No record of the evidence adduced at the trial is before us.
Annexed as an exhibit to plaintiff's complaint was a copy of the lease in question from which it appeared that the leased property comprised three rooms to be used as law offices, and that the lessor agreed that the premises should be placed in tenantable and good condition, and would 'supply without cost to the lessees water, heat, cooling and electric current for lighting purposes,' and would make all necessary repairs to the plumbing, gas, water, steam or other pipes in or about the premises. The defendant's answer admitted the execution of the lease, but alleged that plaintiff agreed to look to defendant and one George Rudiak for the payment by each of one half of the rent. He admitted that he had remained in possession until the beginning of the last three-month period and admitted the non-payment of the rent. Other allegations of the complaint were denied.
As a second defense, defendant alleged that he believed all rentals had been paid to plaintiff; as a third defense, that plaintiff had agreed that defendant could surrender the premises at any time without liability for further rental; as a fourth defense, that heat was not furnished when required and that cooling was not furnished when required; as a fifth defense, that the lessor neglected to furnish water or adequate current for lighting; as a sixth defense, that the lessor had removed defendant's name from the office building directory and that lessor had wrongfully installed unsightly water mains in one of the rooms, which prevented the lessee from maintaining his furniture in such portion and thereby made the premises unsuitable for law offices. The rely put all these matters in issue.
The court made general findings in favor of the plaintiff, but instead of finding specifically on the special defenses, found as follows:
'That defendant, by continuing into possession of the premises after alleged breaches of agreement on the part of plaintiff, waived said breaches, that in the event acts of constructive eviction existed on the part of plaintiff, defendant, by his subsequent conduct, waived the said acts.'
As a conclusion of law the court found:
'That the defendant waived, by his conduct and other circumstances, any breaches of conditions of the written lease agreement on the part of plaintiff to be performed.'
Appellant specifies as error the failure of the court to make findings on the affirmative defenses, and cites numerous authorities supporting the general rule that it is the duty of the court to make findings on all of the material issues raised by the pleadings. It is unnecessary to discuss this proposition, for the reason that the finding of waiver rendered immaterial the findings on the express issues raised by the special defenses. It is well recognized that it is unnecessary to make findings on immaterial issues. 24 Cal.Jur., § 187, 942. This has been expressed by many courts in many ways. '* * * [W]hen there are sufficient findings on issues made in the case to support a judgment, it is immaterial that there is no finding, or an erroneous finding, on some other issue which, if made, or differently made, would not compel any different conclusion from that reached by the findings which were actually made.' Wolfsen v. Smyer, 178 Cal. 775, 175 P. 10, 13. The findings actually made required a judgment in plaintiff's favor and it is evident that this could not have been changed by a disposition, either way, of the issues raised by the special defenses. Such further findings were therefore immaterial. Hertel v. Emireck, 178 Cal. 534, 174 P. 30. Especially must this be so where the evidence has not been brought before this court. Id.; Gary v. Wells, 118 Cal. 11, 50 P. 23. Innumerable cases are to the same effect and need not be cited.
But appellant contends that the finding of waiver cannot thus lightly make the other findings immaterial, for the reason that the plaintiff's reply did not specifically plead waiver, and that to be available as a defense, waiver must be specifically pleaded. There are many variations to this rule and many exceptions to it and the decisions are not harmonious. The decisions vary with the facts as to whether the estoppel or...
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Medical Multiphasic Testing, Inc. v. Linnecke
...leased premises continued, citing the general rule stated in Volpert v. Papagna, 83 Nev. 429, 443 P.2d 533 (1967); Schultz v. Provenzano, 69 Nev. 324, 251 P.2d 294 (1952); Automobile Supply Co. v. Scene-in-Action Corp., 340 Ill. 196, 172 N.E. 35 (1930). This rule has been applied, even wher......
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Mason-McDuffie Real Estate, Inc. v. Villa Fiore Dev., LLC
...for which it was leased.” Id. Third, the tenant must actually vacate the premises within a reasonable time. Schultz v. Provenzano, 69 Nev. 324, 328, 251 P.2d 294, 296 (1952).Villa Fiore argues that there is a fourth essential element of constructive eviction, that the tenant provide the lan......
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Baker v. Simonds, 4519
...be disturbed in the beneficial enjoyment. Palumbo v. Olympia Theatres, 276 Mass. 84, 176 N.E. 815, 75 A.L.R. 1111; cf. Schultz v. Provenzano, 69 Nev. 324, 251 P.2d 294; Annot., 91 A.L.R.2d 638. Thus it appears that in every case for damages, premised upon the claim of constructive eviction,......