Soroka v. Knott
| Decision Date | 20 November 1929 |
| Docket Number | 13,512 |
| Citation | 168 N.E. 703,90 Ind.App. 649 |
| Parties | SOROKA ET UX v. KNOTT |
| Court | Indiana Appellate Court |
Rehearing denied January 29, 1930.
From Lake Superior Court; Maurice E. Crites, Judge.
Action by Johanna Knott against William Soroka and wife. From a judgment for plaintiff, the defendants appealed.
Reversed.
Green & Powers, for appellants.
Sheehan & Lyddick, for appellee.
OPINION
The facts are, in substance, as follows:--On a Sunday in December, 1925, appellants and appellee executed a written agreement in the following words and figures: ; the Mr. Hagel mentioned in the memorandum was Jacob Hagel, who was occupying the premises under a five-year written lease executed September 1, 1925, and was conducting a general grocery store and meat market in said premises and occupying a part thereof as a residence and a garage; appellants had bought the stock of merchandise and fixtures from Hagel and were desirous of renting the premises from appellee; appellants paid appellee $ 10 and moved into the premises a few days before the above-mentioned memorandum was signed, on condition that a written lease for five years would be executed, which lease was to embody the same terms and conditions as the then existing lease held by Jacob Hagel, excepting the appellants were to take care of the heating plant; that on December 28, 1925, about a month after appellants moved in, appellee presented the appellants with a written lease substantially the same as the one held by Jacob Hagel, but appellants refused to sign the lease presented. (It will be noted that the memorandum did not specify the amount of rent to be charged.) The appellee then presented another written lease for six months instead of five years, and appellants refused to sign or accept that lease; that appellants had a lease prepared and presented it to the appellee and she refused to sign it; that negotiations continued, but no rent other than the $ 10 was ever paid, nor did the appellee demand any rent from appellant; that in February, 1926, appellants moved out of the premises and two days thereafter returned the key to appellee. The appellee testified: "The understanding was that they were to occupy the premises under a written lease that was to be drawn; I only wanted to rent it by a written lease; I wouldn't have rented to them without a written lease; I didn't tell them to move out; I wasn't going to permit them to remain in there without a written lease; they turned the key over to me several days after they had finished moving"; I said: "This is not going to help you, moving out at night, you have got to pay your rent up just the same"; that appellee was asked the question: "Were you going to permit them to remain in there without a lease?" Answer, "Well, no, I had no intention to put them out"; that appellants offered to pay the appellee rent for the time they occupied the premises, but the appellee refused to accept it; that appellee again says she did not want any money from them until they signed the lease; that, on further examination, appellee testified: "At the time Mrs. Soroka said, 'here are the keys,' I said, 'our attorneys Mr. Troynam and Mr. Lyddick will take care of the rent' and she said 'Yes.'"
The case was tried before a jury, who rendered a judgment against appellants in the sum of $ 931, upon which verdict, the court rendered judgment, from which this appeal is prosecuted.
Appellant filed a motion for a new trial on the ground that the verdict of the jury was not sustained by sufficient evidence and was contrary to law.
Appellants entered the premises about one week before December 1, 1925. They abandoned the same February 1, 1926. On March 1, 1926, appellant Mary F. Soroka filed her petition in bankruptcy and was adjudged a bankrupt. On June 17, 1926, appellant William Soroka filed his petition in bankruptcy and was adjudged a bankrupt. Appellee was listed as one of the creditors of appellants and was notified of the pendency of the bankruptcy proceedings.
We need not discuss all the questions raised by the parties in regard to when and under what circumstances rents may or may not be provable claims in a bankruptcy proceeding. It is sufficient to say that the rent which has accrued and is owing at the time of the filing of the petition in bankruptcy is a provable debt and is dischargeable. In re Sherwoods (1913), 210 F. 754, Ann. Cas. 1916A 940; In re Scruggs (1913), 205 F. 673; In re Arnstein (1899), 101 F. 706; In re Mitchell (1902), 116 F. 87; In re Collignon (1900), 4 Am. Bankr. Rep. 250; Bankruptcy Act 1898, § 63a (1), 11 USCA § 103 (a) 1; McCann v. Evans (1911), 185 F. 93.
At common law, where one enters upon land by permission of the owner under a void parol contract or under a void lease, or pending unexecuted negotiations for a written lease, he is either a tenant at will or a tenant at sufferance; in some jurisdictions, the court holds it to be a tenancy at will others say a tenancy at sufferance. Carteri v Roberts (1903), 140 Cal. 164, 73 P. 818; Dunne v. Trustees of Schools (1864), 39 Ill. 578; Grant v. White (1868), 42 Mo. 285; Hilsendegen v. Scheich (1885), 55 Mich. 468, 21 N.W. 894; Jennings v. McComb (1886), 112 Pa. 518, 4 A. 812; Harris v. Frink (1872), 49 N.Y. 24, 10 Am. rep. 318; Markowitz v. Davidson (1921), 228 S.W. 968; Weed v. Lindsay (1891), 88 Ga. 686, 15 S.E. 836; Hegan v. Johnson (1809), 2 Taunt. (Eng.) 148; Anderson v. Prindle (1840), 23...
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