Gregory v. Lantz

SHAW, J.

Action to recover the balance of an amount agreed to be paid by defendant to plaintiff pursuant to the terms of a lease of personal property. Judgment went for plaintiff, from which, and an order denying his motion for a new trial, defendant appeals.

[379]

The lease, set out in the complaint

in haec verba,

is for one five horse-power White & Middleton engine No. 1891, one pump jack, eighty feet of seven-inch casing, forty-five feet of four-ply belting and fittings, etc., which the lessor agreed to furnish for the term of six months from July 9, 1908, for the use of which defendant covenanted and agreed to pay plaintiff the sum of $580, payable $250 cash upon delivery, and the balance in installments as therein specified. It was further provided that should suit be brought to enforce any covenant contained therein, defendant should pay a reasonable attorney’s fee in such suit. The lease contains no covenants on the part of the lessor, other than an option therein given to purchase, for a stipulated sum, the leased property at any time during the term of the lease, provided the specified rental shall have been paid at the times and in the manner therein contained. The complaint alleges delivery of the property to defendant and the performance of all the covenants thereby imposed upon plaintiff, but that defendant, retaining possession of the leased property, has paid the sum of $139.37 only, leaving a balance of $440.63 unpaid, and which he refuses to pay. It also alleged that plaintiff had employed attorneys to prosecute the suit, on account of which he had incurred a liability in the sum of $75 for attorneys’ fees. Defendant answered, admitting the execution of the lease, but denying that any sum was unpaid thereon, or that plaintiff had been compelled to employ attorneys, as alleged. By separate answer and cross-complaint he alleged that by said contract of lease plaintiff was to install the property so leased, so that the same could be used for the pumping of water for the summer irrigation of 1908, and that he neglected and failed to do so until December, 1908, by reason whereof he was damaged.

It is not alleged that the contract as executed was other than what the parties intended it to be; hence, the only question is whether plaintiff performed the covenants thereby imposed upon him. The court upon ample evidence found that he did. Measuring the rights of the parties by the terms of the contract, no duty devolved upon plaintiff to install the pumping plant for use in the summer of 1908, or at any other time, or at all. He simply leased the property to de