Stephenson v. National Bank, 5798.

• Decision Date: 25 March 1930
• Docket Number: No. 5798.,5798.
• Citation: 39 F.2d 16
• Parties: STEPHENSON v. NATIONAL BANK OF WINTER HAVEN.
• Court: U.S. Court of Appeals — Fifth Circuit

39 F.2d 16 (1930)

STEPHENSON v. NATIONAL BANK OF WINTER HAVEN.

No. 5798.

Circuit Court of Appeals, Fifth Circuit.

March 25, 1930.

George P. Garrett, of Orlando, Fla., for appellant.

R. W. Withers, of Tampa, Fla. (McKay, Withers & Ramsey, of Tampa, Fla., on the brief), for appellee.

Before BRYAN and FOSTER, Circuit Judges, and DAWKINS, District Judge.

BRYAN, Circuit Judge.

Appellant brought an action for damages, alleging that he was appellee's tenant of a building, and that during his tenancy the building was undermined and rendered unpatentable by excavations which appellee caused to be made on its adjoining property. The trial court held that the alleged relation of landlord and tenant did not exist at the time of making the excavations complained of, and directed a verdict for appellee.

Appellee became owner of the property in dispute on June 25, 1924, subject to a five-year lease, dated September 1, 1922, to C. J. Runkle, in which the lessee covenanted to pay as rent $100 on the 1st day of each month during the term thereof, and agreed "that if default shall be made in the rent as aforesaid, then he shall become tenants at sufferance, hereby waiving all right of notice." Runkle attorned to appellee after it became owner of the property, and this was known to appellant. Runkle assigned his lease to appellant by assignment dated November 24, 1925, and immediately thereafter appellant began and proceeded to partition the building, which consisted of a single story, and theretofore had been used as a grocery store, into a number of small offices and to cut two large openings through the side wall. Appellant tendered the rent due December 1, 1925, on the 5th of that month, but appellee declined to accept it on the ground that it was not paid when due, and notified appellant by letter that, since he was in default, he had become a tenant by sufferance. On the 7th appellee applied for and later obtained an injunction restraining appellant from making any further alterations in the exterior wàlls of the building. On appeal the order of injunction was affirmed on the ground that appellant was committing waste, but he was held not to be a trespasser, because appellee had on several occasions accepted rent from Runkle after it was due. Stephenson v. National Bank of Winter Haven, 92 Fla. 347, 109 So. 424. Pending appeal the order of the trial court was superseded, and appellant completed his alterations of the building, and sublet offices in it. He tendered the rent due January 1, 1926, in time, but acceptance of it was also declined, and no rent was afterward paid or tendered. On March 22, 1926, appellee began to make the excavations complained of. It appears from canceled checks offered in evidence that appellee, during the year ending in November, 1925, had accepted six payments of rent from Runkle after the 1st of the month, but only on one occasion, in January, 1925, as late as the 5th of the month.

Appellant made a part of his bill of exceptions by reference merely the assignment of lease, checks, letters, deeds, and various other documents, which were either filed in evidence or for identification, but these documents were not printed in the record or ordered sent up in the original by the district judge. The only mention made of them in the transcript is that they were filed or offered in evidence as plaintiff's exhibits numbered 1, 2, etc., up to nineteen. Our rules provide that no...