Waffle v. Ireland

• Decision Date: 11 March 1927
• Docket Number: 12,699
• Parties: WAFFLE ET AL. v. IRELAND
• Court: Indiana Appellate Court

155 N.E. 513

86 Ind.App. 119

WAFFLE ET AL. v. IRELAND

No. 12,699

Court of Appeals of Indiana

March 11, 1927

Rehearing denied April 27, 1927.

From Elkhart Superior Court; William B. Hile, Judge.

Action by Edgar A. Ireland against Charles Waffle and another. From a judgment for plaintiff, the defendants appeal.

Affirmed.

John G Yeagley, for appellants.

Seebert Oare & Omacht, for appellee.

OPINION

THOMPSON, J.

This is an action brought upon appellee's complaint in one paragraph, to recover one month's rent upon a written lease on property which had been abandoned by appellants, and his attorney fees.

The complaint alleged, in substance, that the appellee leased to appellants a certain garage building for which appellants agreed to pay $ 666.67 per month in advance; that appellants occupied said building and paid rent until October 30, 1925, when they vacated the premises and informed appellee that they would no longer perform the conditions of said lease; that under clause seven of said lease, the appellee relet said premises to another tenant for the unexpired term or until April 1, 1926, for the sum of $ 350 per month; that as a part of said first lease, appellants guaranteed the payment of $ 666.67 per month, and that there is therefore due from appellants $ 316.67 for the November rent and $ 150.00 attorney fees, making a total of $ 466.67 and costs. A copy of said written lease is made a part of said complaint as an exhibit thereto, and clause seven thereof provides as follows:

"If said party of the second part shall abandon or vacate said premises, the same shall be re-let by the party of the first part for such rent and upon such terms as said first party may see fit; and if a sufficient sum shall not be thus realized, after paying all expenses of such re-letting and collecting to satisfy the rent hereby reserved, the party of the second part agrees to satisfy and pay all deficiency."

Appellants filed three paragraphs of answer. The third paragraph alleges, in substance, that defendants admit the execution of the lease set out in the complaint; that defendant Elmer E Strayer admits the execution of the guarantee for payment of the rent; that defendants abandoned the leased premises and the same were not used by defendants after October 30, 1925, and immediately and at the time of vacation gave notice to plaintiff that said premises were vacated, and defendants further say that the reasonable rental value of said premises at the time of such vacation and at all times thereafter was in excess of $ 666.67 per month; that the plaintiff herein did rent said premises during the unexpired term of said lease for the sum of $ 350 per month, and said plaintiff did at said time enter into a further contract with the present tenant who rented said premises for $ 350 per month for the unexpired term of said lease, whereby said present tenant agreed to and did rent said leased premises from the...