Wagner v. Glick
| Decision Date | 29 September 1916 |
| Docket Number | 30515 |
| Parties | CHARLES W. WAGNER, Appellee, v. E. A. GLICK et al., Appellees, and F. A. RIFE, Appellant |
| Court | Iowa Supreme Court |
Appeal from Polk District Court.--W. S. AYRES, Judge.
THIS is an action in equity for the reformation of a lease to real estate, and it is asked that the first of two leases be canceled and decreed to be merged in the second lease. The case was dismissed as to defendants Kirchner and Glick, who it appeared at the time of the trial, had no interest in the case. The trial court found for the plaintiff, and the defendant F. A. Rife appeals.
Affirmed.
T. A Kingland, for appellant.
Stipp Perry & Starzinger, for appellee.
The issues presented by the pleadings are substantially these:
Defendant Kirchner filed a disclaimer of interest. Defendant Rife filed an application for a change of place of trial to Winnebago County, that being the county of his residence.
Rife, in his answer, claimed that, at the time of the execution of the second lease, he and Glick were tenants in common of the 50-acre tract of land in controversy; that the second lease was executed by Glick without the knowledge or consent of Rife, and was hence not binding upon him; that he had repudiated said second lease; that plaintiff has refused to pay rent under the first lease, and that hence Rife was entitled to the immediate possession of the premises; that Glick and Kirchner had neither of them any interest in the premises; that defendant was a resident of Winnebago County; that he had previously moved to transfer the cause to the county of his residence; and that, since the making of said motion, the court was without jurisdiction to try the case. Defendant prayed for an order removing the cause for trial to the county of his residence, failing which, that plaintiff's petition be dismissed, and for general equitable relief.
The plaintiff filed a reply, stating that, if Rife did not authorize the making of the second lease by Glick, he very soon thereafter learned thereof, and by his acts and conduct adopted the lease and ratified the act of Glick in executing the same.
The decree reformed the second lease so as to make the same recite that the first lease was canceled and at an end; gave judgment against plaintiff in favor of defendant for the rent then due under the second lease. It appears that the 50-acre parcel of land in controversy lies in the western portion of the city of Des Moines, and is bounded by the north bank of the Raccoon River. It is first bottom land and overflows. It is intersected by two railroad tracks and is valuable chiefly from the fact that large deposits of sand in the Raccoon River can be reached from the land.
March 2, 1911, Waldo & Waldo, who then owned the land, leased a 50-foot wagon right of way across the same to a sand bar in the river, to one George Grier, granting him also the privilege of using a bridge on the land across Walnut Creek, the use of an old house on the premises, and the privilege of piling sand along the tracks of the Milwaukee Railroad, but no further right was granted. December 12, 1912, Grier assigned this lease to James G. Berryhill, Jr., and Charles Wagner, plaintiff herein; and Wagner subsequently acquired the interest therein of Mr. Berryhill. Under this lease, plaintiff Wagner proceeded to haul sand from the sand bar in the river over and across the right of way demised. Afterwards, Waldo & Waldo traded this land to, and for a stock of goods owned by, Glick & Rife, a copartnership doing business at Lone Tree, Iowa; but, Glick & Rife being in financial straits, the title, for convenience, was taken in the name of the Lone Tree Savings Bank, as trustee, for Glick & Rife. During this time, Glick purported to represent the partnership, and collected rent under the Waldo & Waldo lease from the plaintiff. He importuned the plaintiff to take a lease upon the entire parcel of ground. On or about May 26, 1913, Glick came to Des Moines, stating that he represented the partnership of Glick & Rife, and negotiated with Wagner a new lease covering the whole ground.
All of the rights granted in the Waldo & Waldo lease were included in the new lease, and plaintiff claims there was a mutual understanding between Wagner, lessee, and Glick, representing Glick & Rife, that the new lease should cancel and terminate the old lease. The new lease was executed and acknowledged by Glick upon behalf of the partnership. The rent payable under the old Waldo & Waldo lease was $ 200 per year, while the rent reserved under the new lease was $ 300 a year. The land, as before stated, was first bottom; it overflowed, was almost inaccessible and only a small portion thereof was susceptible of cultivation.
Upon the execution of the new lease, Wagner paid the first year's rent of $ 300 by a check for $ 200, and by note of $ 100, payable to the order of Glick & Rife, which note was afterwards assigned for collection to the Lone Tree Savings Bank, agent and trustee for Glick & Rife, to whom Wagner made payment of the note. The proceeds of the first year's rent were fully accounted for by Glick to Mr. Rife, sometime between June and September, 1913.
On or about November 25, 1913, defendants Rife and Kirchner came to Des Moines to see if they could not get Mr. Wagner to relinquish the option contained in the new lease for an extension or renewal thereof, it appearing that Rife had a chance to sell the land, provided the option on the part of Mr. Wagner to renew the lease could be done away with. At that time, Mr. Rife said that Glick had no right to execute the lease for the firm. He declared, however, that he desired to see if he could not make arrangements with Wagner for a waiver by the latter of the right to renew the lease. It was finally agreed that, if Rife would pay Wagner $ 300 on or before December 31, 1913, Wagner would waive his right to a renewal of the lease, and a written contract was entered into to that effect, signed by both Wagner and Rife. Rife did not sell the land, nor did he exercise his right under the contract last referred to. On August 9, 1913, however, he had acquired Glick's interest in the land and had taken from Glick an assignment of Glick's interest in the new lease.
It seems that, at about the time of the execution of the contract of November 25, 1913, waiving the right to renew, Rife made an arrangement with Kirchner that Kirchner should collect the rent on the land in question from Wagner and apply the same on indebtedness owing by Rife to Kirchner. During the spring of 1914, Kirchner wrote to Wagner asking for the payment of the rent, and demanded payment of $ 500. Wagner responded that the rent reserved in the new lease was only $ 300, to which Kirchner replied that he was also wishing to collect the rent under the old lease. Wagner refused to pay the rent under the old lease, which he claims was canceled when the new lease was entered into, but offered to pay the rent reserved under the new lease, which was refused. Further correspondence between counsel for Mr. Rife and Mr. Wagner ensued, resulting in the service upon Wagner of a notice to quit, that being preliminary to the proposed action on the part of Mr. Rife to oust Wagner from the premises because of his refusal to pay rent under the old lease, as well as under the new lease. Thereupon, plaintiff made a tender to the defendant of the amount due under the new lease, which was refused. Wagner has always been ready, willing and able to pay the rent under the new lease. To save himself from being ousted by an action at law, and to secure a more speedy adjudication of the controversy between the parties, this suit was accordingly brought by the plaintiff for the reformation of the lease, so as to make the same state that the old Waldo & Waldo lease was canceled.
It should be said also that defendant claims that plaintiff paid rent under the old lease for the year following the making of the new lease. The rent paid on March 2, 1913, on the old lease, was rent in advance, and paid up to March, 1914. ...
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