McSweeney v. Hynes

WILBUR, J.

Appeal from a judgment in favor of defendants and from an order denying plaintiff’s motion for new trial.

Plaintiff states his cause of action in two counts, the first an action to compel the specific performance of a verbal agreement to give a three-year lease of certain land known and designated as lot 4 of tract 1812 at an annual rental of one thousand dollars. The second count is based upon the renewal of a previous verbal lease for one year which expired December 1, 1913, it being alleged that "the said lease was renewed for the term ending December 1, 1914, on the same terms and rental as the said lease ending December 1, 1913, ’ ’ namely at a yearly rental of three hundred dollars, payable in advance. It is admitted that the plaintiff was in possession for the year ending December 1, 1913, and has ever since remained in possession of the premises. It is

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admitted that he. has paid rental therefor amounting to one thousand dollars, $250’ of which the defendants have offered to return. The court found that there was no agreement to give a lease for three years at one thousand dollars per annum, but that there was an agreement to lease the premises for one year at a rental of $750. Appellant complains that no finding was made upon the issue as to whether or not there was a renewal lease for a year at three hundred dollars per annum, but the finding of the court that there was a renewal lease for one year at a rental of $750 per annum is a sufficient finding on that subject. The next point ■raised is that the evidence is insufficient to justify the finding that there was an agreement to rent the premises for one year at $750 per year. The evidence shows that from December 16, 1913, to April 11, 1914, negotiations were in progress between the parties. Plaintiff testifies that an agreement was made to lease him the premises at one thousand dollars per year for three years on December 16th. This is denied by the defendant, who immediately and repeatedly refused to sign a three-year lease. It is clearly shown that negotiations were in progress for a lease until April 11th, at which time the defendant Mary Josie Hynes, having received an account from the plaintiff showing that he claimed to have paid on her account the sum of five hundred dollars, as final payment of the one thousand dollars due on the first year of the three-year lease, replied that she would not accept such payment, but would repay to him the sum of $250 as shown in his account, and retain the balance as final payment on a one-year lease at $750 per annum. In pursuance of the negotiations, and before a final agreement had been made, the defendant erected a pumping-plant on the premises for pumping irrigation water which dming said negotiations she agreed to furnish to the plaintiff. This fact accounts for the increased rental. Under all the circumstances, which need not be set forth in detail, we are satisfied that the trial court was justified in its findings.