Smith v. Pendergast
| Decision Date | 30 December 1879 |
| Parties | Andrew J. Smith v. Solomon Pendergast and others |
| Court | Minnesota Supreme Court |
Appeal by defendants from a judgment of the district court for Stearns county, where the action was tried before McKelvy J., a jury being waived.
Judgment affirmed.
Miner & Barto, for appellants.
L. W Collins, for respondent.
Moore, owning and being in possession of certain premises, demised the same, by lease under seal, for the term of one year from September 7, 1871, to the firm of Howard & Carpenter, composed of John R. Howard and Ira M. Carpenter. Thereupon the firm went into possession, and performed all the covenants and conditions to be performed on their part. Pursuant to one of its provisions, the lease was renewed for an additional term of four years, and under the renewal the lessees continued in possession, and fully performed on their part, except as hereinafter stated. On November 1, 1873, Moore, the lessor, conveyed the demised premises to the plaintiff, and transferred to him all his rights in and under the lease.
At the time of the execution of the lease, there was a two-story building upon the demised premises, the second story of which was used as a tin-shop, access to which was had by an outside flight of stairs, upon the demised premises, and on the south side of the building. This flight of stairs furnished the only public means of access to the tin-shop. In addition to the site of the building mentioned, the lease demised another portion of the lot upon which the building was situated, which portion was well adapted as a place of deposit for bulky goods, such as agricultural machinery. In the latter part of September, 1875, the plaintiff entered upon this portion of the lot, and during October following removed the stairs, and there erected a building which he has ever since occupied as a bank. At the same time, plaintiff put up a flight of stairs at the rear of the building, so as to afford access to the second story and to the tin-shop, and subsequently, at the request of one of the defendants, cut a doorway in the rear part of the first story of the building, and put in a door, so as to afford the lessees more convenient access to the stairs which he had erected.
Previous to plaintiff's entry upon the above-mentioned portion of lot 7, he informed Howard (of the firm of Howard & Carpenter) of his desire to make such entry, and to make the erection and improvements aforesaid, promising Howard that if he would consent to the same, he would obtain for him another lot upon which to store and deposit goods or agricultural machinery, in case he desired him to do so. Howard made no objection then or at any other time to plaintiff's acts or proceedings in the matter, but permitted him to go on with his entry and improvements, and, by his (Howard's) conduct, led the plaintiff to believe that it was entirely satisfactory to him.
On November 8, 1875, Howard & Carpenter assigned all their rights under the lease to John R. Howard, who retained possession of the demised premises, except as above stated, until January 27, 1876. On that day, and after the plaintiff had made the entry and all the erections and improvements aforesaid, Howard assigned all his rights under the lease to the defendants. They thereupon entered into possession of the demised premises, except the portion entered upon by plaintiff, as aforesaid, and occupied and used the same, under the lease, from said 27th day of January up to September 7, 1876, inclusive, when they surrendered possession to the plaintiff. Defendants paid the rents reserved in the lease which accrued up to March 7, 1876. The last payment was made by them on March 9, 1876, and they have paid no rent for their use and occupation of the premises since March 7, 1876. No dissatisfaction was ever expressed to plaintiff on account of his entry and improvements, until April, 1876, and then by the defendants only, and no damages were claimed before that time on account thereof.
Upon the state of facts summarized above, the court below found as conclusions of law: First, that the acts and conduct...
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