Early v. Forbes

SPENCE, J.

Plaintiffs sought to recover damages for alleged breaches of certain covenants of a written lease. Among the defenses set up by defendant was that of cancellation of the lease by mutual agreement of the parties prior to the expiration of the term thereof. The cause was tried by the court sitting without a jury. At the close of plaintiff’s case, defendant made a motion for nonsuit, which motion was granted. Plaintiffs appeal from the judgment of nonsuit.

The property was leased to defendant by plaintiffs’ predecessors in 1922 and the lease was to expire by limitation of time on March 31, 1932. Plaintiffs purchased the property in 1930. Shortly before the expiration of the lease, plaintiff C. D. Dorn, who held a power of attorney from the other plaintiffs, sought to terminate the lease prior to the time fixed by the terms thereof. In doing so, plaintiffs represented that they had leased the premises to a Mrs.

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Barker but it appears that the alleged tenant was in fact acting as agent for plaintiffs and that she purchased the furnishings from defendant for plaintiffs. On March 5, 1932, plaintiff C. D. Dorn wrote defendant in part as follows: “If you deliver the house to her on the 15th I will cancel your lease as of that day and pro-rate your rent.” On March 10th, he again wrote defendant acknowledging check for the prorated rent due to March 15th and stated, “The pro ration is with the understanding that Mrs. Barker is to purchase your furnishings and take over the premises as of that day, and therefore also as of that day your lease on the same is canceled if the plan is consummated.” It is conceded that the plan was consummated and possession was delivered to Mrs. Barker on March 15th. This action was commenced by plaintiffs about one year thereafter and was based upon alleged breaches of the covenants to keep the premises in repair.

Appellants contend that the trial court erred in granting the motion for nonsuit but we find no error in the ruling. While we have found no authorities directly in point on the facts before us, the following cases tend to support the action of the trial court:

Silva

v.

Bair,