White v. Larsen & Shafer

• Decision Date: 13 October 1931
• Docket Number: 5730
• Citation: 3 P.2d 994,51 Idaho 187
• Court: Idaho Supreme Court
• Parties: LESLIE M. WHITE, Sometimes Written L. M. WHITE, CHICAGO TRUST CO., a Corporation, GATE CITY SECURITIES COMPANY, a Corporation, Appellants, v. LARSEN & SHAFER, a Copartnership Consisting of E. W. LARSEN and H. G. SHAFER, and E. W. LARSEN and H. G. SHAFER, Individually, Respondents

3 P.2d 994

51 Idaho 187

LESLIE M. WHITE, Sometimes Written L. M. WHITE, CHICAGO TRUST CO., a Corporation, GATE CITY SECURITIES COMPANY, a Corporation, Appellants, v. LARSEN & SHAFER, a Copartnership Consisting of E. W. LARSEN and H. G. SHAFER, and E. W. LARSEN and H. G. SHAFER, Individually, Respondents

No. 5730

Supreme Court of Idaho

October 13, 1931

LANDLORD AND TENANT-LEASE, RENEWAL OF-NEW AGREEMENT-EVIDENCE-APPEAL AND ERROR-INSTRUCTIONS.

1. In action for rent based on claim of renewal of lease, evidence held sufficient to sustain finding of new agreement, relied on by defendants, for possession for limited time at reduced rental.

2. Party cannot on appeal complain of giving of instruction which it requested.

3. Ruling admitting evidence was not ground for reversal, where admission thereof was not erroneous on particular ground assigned in objection.

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. Jay L. Downing, Judge.

Action to recover rent. Judgment for defendants. Affirmed.

Judgment affirmed; costs awarded to respondents.

Roy L Black, for Appellants.

To abrogate, modify, change, terminate or release the existing written contract obligation by subsequent oral agreement such subsequent oral agreement would have to be shown by the evidence to be clearly established as such an agreement, that the minds of the parties met thereon, that such subsequent agreement was supported by a new and sufficient consideration. (Tapper v. Idaho Irr. Co., 36 Idaho 78, 96, 210 P. 591; Hunter Land & Dev. Co. v. Watson, (Mo.) 236 S.W. 670; Koch v. Brummer, 151 N.Y.S. 507; Wheeler v. Baker, 59 Iowa 86, 12 N.W. 767; Banks v. Berliner, 95 N.J.L. 267, 113 A. 321; Fisher v. Nelke, 114 Me. 112, 95 A. 508.)

Peterson & Clark, for Respondents.

Where a lease for a definite term provides that the tenant shall have "the privilege of an additional five years at the same rent upon giving thirty days' notice," the mere holding over of the tenant at the expiration of the definite term does not constitute a new lease or extension of the old lease for an additional term of five years, in the absence of the tenant's giving the required notice. (English v. Murtland (Murtland v. English), 214 Pa. 325, 63 A. 883; Cooper v. Joy, 105 Mich. 374, 63 N.W. 414; Thurston v. F. W. Woolworth Co., 66 Ind.App. 26, 117 N.E. 686; Fritch & Himes v. Reynolds, 189 Iowa 16, 176 N.W. 297; Branagan v. Winders & Alm, 194 Iowa 461, 187 N.W. 440.)

GIVENS, J. Lee, C. J., and Varian and McNaughton, JJ., concur.

OPINION

GIVENS, J.

September 26, 1922, respondents leased from the then owner, E. C. White, a certain store building under a written lease for five years from April 20, 1923, with the proviso as to the lessee, "With the privilege of an additional five (5) years at the same rent, upon giving thirty (30) days notice."

Respondents occupied the premises under the lease for the term thereof until April, 1928, paying the agreed rent of $ 200 per month, and then without giving any notice, oral or written, and nothing being said by either party, continued to occupy the premises, paying the same rental until April, 1929, when respondents claim a new oral agreement was made whereby they were to continue in possession until they sold their stock of merchandise, as they were going out of business, at a rental of only $ 100; and vacated said premises in September, 1929. Appellants contend no such, or any new agreement, was legally and mutually entered into; that E. C. White, the former owner of the premises, acting only as agent for the owners in 1929, was deceived by respondents as to the lease having expired, and mistakenly, on such false assumption, acquiesced in such new arrangement, and that the lease was, by respondents' occupancy and payment of rent with the landlord's consent, though no notice was given under the proviso, extended from April, 1928, for five years.

Appellants by original and supplemental complaint sued for the rent at the original rate to December, 1930.

Appellants urge, and the court proceeded upon the theory, that respondents, by holding over and paying rent, and the lessors by accepting the rent, though no notice was given, extended or renewed the lease for another five-year period. Respondents take a contrary position, but in view of the conclusion reached, it is unnecessary to discuss or decide this point, since appellant makes no complaint in connection therewith.

Appellants contend there is no evidence to show a new agreement. While they do not agree as to what was said, both Larsen, one of respondents, and E. C. White, concededly acting as agent for, and representing, appellants, testified that a conversation was had by the two, wherein it was agreed that respondents would remain in the premises after May 31, 1929, until respondents had disposed of their stock and sold out, at a decreased rental of $ 100. Appellants contend that White was misled into making such agreement by Larsen falsely stating that the lease had expired. Larsen does not altogether agree with White's version as to what was said on this point. In any event, White could have asked for the lease; he had had a copy of it; it had been filed in the office of the county clerk, auditor and recorder; and there is enough in the record to justify the jury in concluding that a new agreement was made.

Appellants' main point is that there was no consideration, and that instructions on this point were erroneous. Appellant requested this instruction:

"You are instructed, Gentlemen of the Jury, that the term 'valuable consideration' means that the promisor has in return for his promise, acquired some legal right to which he would not otherwise have been entitled or that the promisee has, in return for the promise, forborne some legal right which he otherwise would have been entitled to exercise.

"You are instructed that unless there has been such consideration for the promise or agreement of a party, then the promise...