Gillaspie v. Hagans

Fitzgerald, C. — This action is brought by plaintiff against the defendants to recover the sum of $1,002.93 for rent alleged to be due and unpaid on certain leased premises, described in the amended complaint as the Capitol Hotel, and for damages in the sum of $200 for breach of covenant to restore the property in the condition provided for by the terms of the lease.

The amended complaint, which is unverified, separately states two independent causes of action, in both of which the contract of lease, which is in writing, is pleaded in heec verba.

In the first count it is substantially alleged that on the thirteenth day of May, 1884, plaintiff let to the defendants, upon the terms and conditions set forth in the lease, the property known as the Capitol Hotel, and described therein as the hotel then in the possession of one Fairbanks.

The second cause of action, after adopting paragraphs 1 and 2 of the complaint, sets up the covenant in the lease to restore the property, and avers damages in the sum of two hundred dollars for breach thereof.

The instrument in writing executed by the parties hereto, and set out as stated in each of the foregoing causes of action, contains, as we think, two independent contracts of lease of separate and distinct properties, with the rent specifically fixed for each, and the terms commencing at different periods of time, as will be seen from the terms and conditions thereof, which are substantially as follows:—-

[92]One of the "properties referred to is the building in course of construction at the time of the execution of the lease, and afterwards known as the Palace Hotel. The lease of this property was for the term of five years from the date of its completion, at a monthly rental of $150, payable 'on the first day of each month, plaintiff agreeing to finish the building within a reasonable time, according to the original plans and specifications, except as varied by consent of parties, and to build on the premises a laundry and wood-shed of rough boards. It was further agreed that all improvements made upon the property during the said term should be enjoyed by defendants without further rent, “ but that the storehouse under the hotel was no part thereof.”

The other piece of property, designated as the Capitol Plotel, plaintiff “ also leases ” to defendants for the term of five years from the date of the expiration of the lease of one Fairbanks, then in the possession thereof, at a monthly rental of twenty-five dollars, payable on the first day of each month, defendants agreeing to yield up the premises in as good condition as when leased, reasonable wear thereof and damages by the elements excepted.