Yontz v. McDowell

• Citation: 247 S.W. 948,197 Ky. 770
• Parties: YONTZ v. MCDOWELL.
• Decision Date: 16 February 1923
• Court: Court of Appeals of Kentucky

247 S.W. 948

197 Ky. 770

YONTZ v. MCDOWELL.

Court of Appeals of Kentucky.

February 16, 1923

Appeal from Circuit Court, Muhlenberg County.

Action by E. L. Yontz against W. R. McDowell. Judgment for defendant, and plaintiff appeals. Affirmed.

E. B Anderson, of Owensboro, for appellant.

Hubert Meredith, of Greenville, and Walker Wilkins, of Central City for appellee.

SAMPSON C.J.

Appellant Yontz, leased a hotel situated in Central City from appellee, McDowell, for a term of two years, at a rental of $75 per month. The contract, which was in writing, dated August 30, 1918, contains, among other things, the following clause:

"Now it is specially agreed and understood that, should the party of the first part (McDowell) at any time during the life of this contract and lease make a sale of said hotel, fixtures, and furnishings, then in that case this contract and lease shall become void and terminate on the date of such sale."

On March 31, 1919, about seven months from the making of the contract, appellee, McDowell, gave appellant, Yontz, notice that he had sold the said hotel and wanted immediate possession thereof. Acting upon this notice, appellant Yontz, immediately moved out. Later, discovering that no deed of conveyance had been recorded in the office of the clerk of the Muhlenberg county court, Yontz made demand on McDowell for possession of the hotel and to be put in said possession by McDowell. This notice was ignored by McDowell. On May 31, 1919, McDowell and wife conveyed the property together with other real estate to Walker Wilkins and others for $30,000. About the time the deed was made and delivered appellant, Yontz, instituted this action in the Muhlenberg circuit court to recover something more than $8,000 in damages which he alleged he had suffered by reason of being turned out of the hotel, contrary to the provisions of the written contract. He alleged that while he operated said hotel under the said lease he averaged a net profit of more than $500 per month, and, as he had 17 more months under his lease, he estimated his damage at $8,972.60. Both parties admit the contract and that McDowell gave the notice to appellant, Yontz, for the possession of the hotel, and that Yontz very soon thereafter vacated the hotel and surrendered it to appellee, McDowell; that the deed conveying the hotel and other real property was not executed until the 31st day of May following. Appellant, Yontz, says that the notice given him by McDowell requiring him to vacate the house was a ruse, false and fraudulent, and intended to deceive and mislead and obtain him from his possession of the hotel, from which he was realizing large profits, and that McDowell...