Durante v. Consumers Filling Station Co. of Cheyenne

• Citation: 257 P.2d 347,71 Wyo. 271
• Decision Date: 19 May 1953
• Docket Number: Nos. 2587,2588 and 2589,s. 2587
• Parties: DURANTE, v. CONSUMERS FILLING STATION CO. OF CHEYENNE (three cases).
• Court: United States State Supreme Court of Wyoming

Page 347

257 P.2d 347

71 Wyo. 271

DURANTE, v. CONSUMERS FILLING STATION CO. OF CHEYENNE (three cases).

Nos. 2587, 2588 and 2589.

Supreme Court of Wyoming.

May 19, 1953.

Byron Hirst, Cheyenne, for appellant.

Greenwood, Ferrall & Williams, Cheyenne, for respondent.

HARNSBERGER, Justice.

By direct appeal to this court, the plaintiff below seeks reversal of separate judgments of the district court in three actions wherein the parties are identical and the issues are more or less substantially the same, in that they all involve the right to possession of real estate.

On May 1, 1950, plaintiff--as owner and lessor of premises--brought his first action of forcible entry and detainer in the justice court to obtain possession of the property from the defendant who was in possession holding under a written lease for ten years from March 1, 1945, at a monthly rental of $200 payable in advance. The lease gave the lessee permission, at his own expense, to 'remodel or make alterations of the premises and building, either inside or outside, during the term'--but, provided that lessee 'shall first obtain the written approval of the Lessor to any material changes'. Plaintiff alleged as grounds for the action that material alterations were made 'without first having obtained the written approval of the lessor or any approval whatsoever.'

The lease also set forth 'In the event of failure of the lessee to pay the rental herein provided for or to keep and observe the other conditions of this Lease, or any of them, Lessor shall be entitled to his option to declare this Lease terminated and to recover possession of the leased premises with or without legal process.' Plaintiff then alleged his exercise of the option to terminate because of the lessee's alleged violation of the agreement not to make material changes without written approval and demanded possession of the property and his costs. The defendant generally denied the allegations of plaintiff's petition, alleged the court to be without jurisdiction and, for a second defense, pleaded a waiver by the plaintiff of the required consent.

Issue was joined upon the alleged violation of the lease by defendant remodeling and making material alterations without plaintiff's approval. Judgment was for the plaintiff and restitution of the premises ordered. The defendant appealed to the district court which found for the defendant and dismissed the action.

On September 7, 1951, the plaintiff commenced his second action in the district court, and in his second amended petition set forth at length the lease in question, which, as above stated, contained provision for the monthly advance payment of $200 over the 10 year period of the lease, and also the above quoted excerpts relative to material alterations, and alleged default in payment of the September 1951 rental as well as a violation of the agreement not to alter or remodel without approval by the lessor. Plaintiff again alleged his election to terminate the lease because of the default in payment of rent and the alleged violation of the agreement and, further pleaded, that the reasonable rental value of the premises was $450 per month.

The defendant's answer admitted its default in payment of the September 1951 rent, but pleaded the default was due to oversight and mistake; that as soon as the oversight was discovered and on September 7, 1951, defendant made immediate tender to the plaintiff of the $200 rent then due; that plaintiff refused to accept the tender and thereafter defendant 'maintained' the tender by depositing a certified check for the amount with the Clerk of the District Court; that defendant 'further offers to pay either by certified check or cash the sum of $200 for the rent for September 1951 on said premises and, further, offers to pay interest on said sum from September 1, 1951 to the date that the tender thereof was refused by the plaintiff and, further, offers to pay immediately into court any damage that plaintiff has sustained by reason of the failure of the defendant to make said payment on the 1st day of September 1951.'

The answer also denied that material alterations of the premises were made without first obtaining plaintiff's consent, and pleaded that plaintiff had specifically waived the requirement that the defendant 'shall first obtain the written approval of the Lessor to any material changes'; that 'said waiver was never revoked'; that 'plaintiff told the defendant it could make any changes or modification to said building and premises it desired, so long as it paid for the same and the plaintiff did not have to pay therefor'. The defendant then admitted plaintiff's ownership of the premises; and that the defendant is in possession and has not allowed plaintiff to enter into possession of the premises.

In defendant's second defense, the plaintiff's allegation as to the $450 per month rental value, is denied.

A further defense pleads waiver of alleged 'violations of the terms of the lease' by plaintiff's acceptance of the lease rental 'from the month of October 1950 to and including the month of August 1951', without protest or objection, and alleges 'that during the time the plaintiff was accepting said checks (the rental payments) he had knowledge of all material changes, if any, that had previously been made to said building and premises.'

Another defense attempts to plead estoppel of the plaintiff to assert against defendant any claim for violations of the lease agreement relating to material alterations made prior to March 5, 1949, being the date plaintiff commenced a previous action against the defendant for the recovery of the property now in question, the defendant alleging that the action of March 5, 1949, had been prosecuted to final judgment without plaintiff complaining that defendant had violated the lease by making material alterations without approval and, therefore, plaintiff should not now be permitted to complain of them. It might be well to note here that the action of March 5, 1949, was an additional action between these same litigants, but is not one of the three actions now being considered.

Having so answered, the defendant prayed equitable relief from the rent payment default, that the plaintiff take nothing and the action be dismissed.

The plaintiff's reply challenges the sufficiency of defendant's tender made after default; pleads that his acceptance of money from defendant after default was 'not in payment of rent but in partial payment for the value of the use of the premises'; denies the waiver by acceptance of the money; pleads himself to have been without knowledge concerning the material alterations alleged by him, until about September 7, 1951; denies defendant is entitled to equitable relief because 'it does not come into this Court requesting the same with clean hands' in that the alleged violations of defendant have continued; that defendant has failed 'to correct or repair the damage caused by alterations and repairs'; and that the rent default was caused by defendant's 'own misconduct, negligence and carelessness'.

Upon trial to the court without a jury the judgment was that plaintiff take nothing by his action and that the same be dismissed.

From these pleadings it appears that the trial court was called upon to decide whether or not equity should grant relief from the default of rent payment; if the acceptance of defendant's money by the plaintiff was a waiver of defaults and violations occurring before such payments; and whether the defendant made material alterations or remodeling of plaintiff's building and, if so, were such alterations made with the approval and consent of the plaintiff or had the plaintiff waived his right to complain.

The third case was filed in the justice court by the plaintiff on September 13, 1951 as another action in forcible entry and detainer. Here, too, the plaintiff pleaded the defendant's default in payment of the September 1951 rent and prayed restitution of the premises. Defendant's answer consisted of eight defenses----

The first defense demurred to plaintiff's complaint.

The second defense pleaded defendant had a pre-emptive right to purchase the premises granted by the lease under which it held possession and that this created in defendant an estate and title in real estate, by reason of which the justice court was without jurisdiction.

The third defense alleged the value of the unexpired term of the lease to be beyond the jurisdictional limit of justice of the peace courts.

The fourth defense pleaded that a former action between the parties, for restitution of the premises, based on nonpayment of rent and alleging a rental value of $450 (said action being a different cause than those here considered) resulted in a final judgment rendered in the district court on September 27, 1950, and that such judgment was final, binding and conclusive on the parties here.

The fifth defense makes reference to the action brought May 1, 1950, in the justice court, and hereinabove referred to as the first case, and after alleging that no alterations had been made since May 1, 1950, asserts that because of the pendency of the May 1, 1950 action, this action should be dismissed.

The sixth defense pleads plaintiff's waiver of the right to have advance payment made of the rent because of plaintiff's previous practice of accepting delayed rent payments, and that no written notice revoking practice has been given defendant.

The seventh defense pleads that the plaintiff's allegations in the second case (brought in the district court) discloses that the cancellation of the lease in question involves an estate and the title to real estate, and hence is not within the jurisdiction of a justice of the peace.

The eighth defense pleads tender of the September 1951 rent made on September 7, 1951; makes renewal of the tender by certified check; offers to supplement the tender with cash; admits plaintiff's ownership...