Voss v. Capital City Brewing Company
| Decision Date | 13 October 1911 |
| Docket Number | 7,316 |
| Citation | 96 N.E. 11,48 Ind.App. 476 |
| Parties | VOSS v. CAPITAL CITY BREWING COMPANY |
| Court | Indiana Appellate Court |
From Superior Court of Marion County (75,062); Lawson M. Harvey Special Judge.
Action by Jay G. Voss against the Capital City Brewing Company. From a judgment for defendant, plaintiff appeals.
Affirmed.
Caleb S. Denny, George L. Denny, William F. Elliott and Horace L Gould, for appellant.
Elmer Wetzel, for appellee.
On May 9, 1907, appellant leased certain real estate in the city of Indianapolis to appellee, for a term of five years from June 1, 1907, at a rental of $ 30 a month for the first two years and $ 35 a month for the remaining three years. The lease was in the usual form, except for a provision "that the tenant now occupying the above-described premises is not to be disturbed during the term of his present liquor license, provided he pays the above rent." Appellee failed to pay the rent for the months of November and December, 1907, and appellant brought suit to collect it.
The one paragraph of complaint sets out a copy of the lease, and avers failure to pay the rent, as therein provided. Appellee answered in three paragraphs. The second paragraph alleges that appellant did not deliver possession of the leased premises to appellee on June 1, 1907, notwithstanding the tender of payment, and that there was, therefore, a failure of consideration. The third paragraph of answer alleges that appellee paid appellant the stipulated rent of $ 30 a month, for five months from June 1, and demanded from appellant possession of said premises, which was, and ever since has been, refused; that during the five months appellee paid rent to appellant, the occupant of said premises left with appellee, at its office, the sum of $ 16 on the first day of every month, but received no receipt therefor, and that all the money so left by said occupant was tendered to appellant by appellee on November 1, 1907.
Appellant demurred separately and severally to the second and third paragraphs of answer for want of sufficient facts to constitute a cause of defense. The court overruled the demurrer to each paragraph, and appellant replied in two paragraphs to the second and third paragraphs of answer. The second paragraph of reply admits that appellee has not been in actual possession under said lease, but alleges that, at the time it so executed said lease, appellee, through its duly authorized agent, undertook and agreed to collect from the tenant then in possession the rent due from such tenant to appellant up to June 1, 1907, and to remit it to appellant; that said agent did collect said rent from the occupying tenant, for and on behalf of appellee, and also collected rent due to appellee for the use and occupancy of said premises after June 1, 1907; that appellee then and there gave to said occupying tenant a receipt for said rent so collected, which, in law, constituted said occupant a tenant for one year from said time, at the same monthly rental as he had theretofore paid appellant, to wit, $ 16 a month; that said receipt was so given to said occupant by appellee without the knowledge or consent of appellant, and that appellee thereby made it impossible for appellant to put appellee in possession of said premises, because said occupant has, with right, retained possession thereof; that appellant has never accepted any rent from said occupant, nor recognized him as a tenant since the execution of the lease, but that appellee at said time accepted said occupant as its subtenant; that the inability of appellant to put appellee in possession was due to the terms of the contract of subtenancy, made by appellee, and not to any act or default of appellant.
The cause was submitted to the court without a jury. The finding...
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