Smith v. Lobb

KERRIGAN, J.

This is an appeal by defendants from an order granting a motion for a new trial in an action for conversion after verdict and judgment for defendants.

The plaintiff and defendant George Lobb had entered into a lease, under which Lobb, the lessor, might on the 1st of December of any year during the life of the lease terminate it by paying to the plaintiff, the lessee, such amount as might be due him for certain reclaiming and leveeing work which

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the lease provided he was to do and for which he was to he paid a stipulated sum per acre. The amount that was due the plaintiff on December 1, 1913, under this arrangement is not disputed, but he asserts that the defendant Lobb did not at that time pay him that amount, or make a legal tender thereof, in an effort by said defendant to terminate the lease. If this be true, it follows that the lease was not canceled, and that plaintiff was entitled to a certain proportion of the crop raised on the demised premises in the year 1914, which was withheld by said defendant, and which withholding forms the basis of the conversion alleged in the complaint.

The case was tried before a jury, and judgment went for the defendants, but the trial court granted plaintiff’s motion for a new trial on the ground, as was admitted at the oral argument of this appeal, that the trial court was of the opinion that it had fallen into error in admitting certain evidence offered by defendants relating to an alleged tender by defendant Lobb to the plaintiff of the amount of money necessary to terminate said lease.

We are of the opinion that the evidence in question was properly admitted by the court, and that consequently its order granting a new trial upon the ground indicated was erroneous.

The facts regarding the tender are that the defendant, desiring to pay to the plaintiff the amount of money necessary under the provisions of the lease to effect its .termination, and having said sum in his possession, attempted on the first day of December, 1913, to find the plaintiff, diligently looking for him at places where he was most likely to be found. Failing to find him, he on the following day left a properly indorsed certificate of deposit for the amount in question with a bank of excellent standing convenient to plaintiff’s place of business, and requested the bank in writing to notify the plaintiff that the certificate of deposit was there subject to his order. The bank, however, having misunderstood its instructions, notified the plaintiff that the certificate of deposit had been left with it to be held “pending settlement” between the plaintiff and said defendant “in regard to some levee work.” About two weeks later the plaintiff called at the bank to ascertain the particulars of the deposit, and he then learned that the certificate of deposit was properly indorsed and was then subject to his order, and that he could have the certificate it