Shinners v. Ford

• Decision Date: 10 February 1922
• Docket Number: No. 22462.,22462.
• Citation: 186 N.W. 704,151 Minn. 328
• Parties: SHINNERS et al. v. FORD.
• Court: Minnesota Supreme Court

151 Minn. 328

186 N.W. 704

SHINNERS et al.

v.FORD.

No. 22462.

Supreme Court of Minnesota.

Feb. 10, 1922.

Appeal from District Court, Ramsey County; Chas. C. Haupt, Judge.

Action by A. L. Shinners and another, copartners under the firm name of the Business Exchange Company, against G. A. Ford. Directed verdict for plaintiffs, and from an order denying a new trial, the defendant appeals. Order affirmed.

Syllabus by the Court

Where a tenant, holding under a lease not assignable without the consent of the lessor, contracts in writing to transfer the lease with a clear title, and the lessor refuses to consent to such transfer, the tenant cannot contradict the plain import of his written undertaking by proof that when he made it the other party orally agreed to procure the requisite consent from the lessor. Harry Weiss, of St. Paul, for appellant.

Guy W. Kimball, of St. Paul, for respondents.

TAYLOR, C.

On March 9, 1920, defendant made an agreement with plaintiffs in the following terms:

‘You are hereby appointed my sole agent and requested and authorized to negotiate the sale of, and to sell for me, the following property, for the price and terms herewith given you, and for the commission herewith agreed upon, which I agree to pay you if a sale or any disposition of the property is made directly or indirectly through your efforts and services, or if sold by myself or through any other agent during the continuance of this agency. You are hereby authorized to accept a deposit to be applied on the purchase price, and to execute a binding contract for sale on my behalf.

‘Description of property: 86-room hotel, including all equipment and lease, 32 private baths, phones in all rooms and 40 with running water. Rent $800.00. Lease 5 years from July, 1919, and privilege of five more.

‘Price and terms: $27,500.00 net.

‘Commission: All over $27,500.00 or 5% if sold for $27,500 or less.

‘This agency contract shall be in force and effect until June 9th, 1920.

‘I will furnish a complete bill of sale and transfer said property free and clear from all liens except as above. If withdrawn or different terms are made to any purchaser during this agency, I will pay you your commission.’

It is admitted that defendant was operating the Astoria Hotel in the city of St. Paul; that he had a written lease of the building from the Hamm Realty Company, the owner; that he owned the furnishings and equipment of the hotel; that the furnishings and equipment of the hotel and the remaining term of the lease was the property which he authorized plaintiffs to sell; that plaintiffs produced a purchaser ready, able, and willing to purchase the property for the sum of $30,000; that the lease provided that the premises could not be sublet nor the lease assigned without the written consent of the Hamm Realty Company; that the Hamm Realty Company refused to permit a transfer of the lease unless the rental was increased $300 per month for the remainder of the term; and that solely for the reason that the Hamm Realty Company refused to consent to the transfer of the lease the sale was not consummated. Plaintiffs sued for their commission and the court directed a verdict in their favor. Defendant appeals from an order denying a new trial.

Against plaintiff's objection defendant was permitted to testify to the effect that when the written contract was entered into plaintiffs orally agreed that if they found a purchaser they would procure from the Hamm Realty Company permission to transfer the lease to such purchaser. Plaintiffs denied any agreement to that effect; but, if proof of such a contemporaneous oral agreement was admissible, this testimony was sufficient to make a question for the jury. At the close of the evidence the court struck out this testimony...