Inland Securities Co. v. Valley Cement Co.

Mallery, J. The plaintiff, Inland Securities Company, Inc., owned a 5.3-acre tract of land upon which there were bunkers for sorting sand and gravel. Contiguous thereto were tracts of land with commercial quantities of sand and gravel, owned respectively by the Ross Construction Company and Leo S. Ross, individually. It should be noted that the Ross Construction Company and Leo S. Ross, individually, are not parties to this action. The defendant, by its president, Eugene J. Auve, negotiated with plaintiff, through its president, Leo S. Ross, for a lease of the bunkers and the purchase of sand and gravel. They went upon and examined the three mentioned prem [52] ises. Defendant agreed to lease these lands for three hundred dollars a month, which would give it the use of the bunkers and the right to take all the sand and gravel needed in its business at the rate of seven and one-half cents a yard for sand, and five cents a yard for gravel. Defendant was not aware that the lease executed and delivered by the plaintiff did not include the two adjoining properties bargained for, which contained practically all of the usable deposits of sand and gravel, and from which about ninety per cent of those materials were, in fact, taken. This is explained by the fact that the land described lacked landmarks, and could only be located by a surveyor. After defendant had been operating upon the premises for some time, it constructed a culvert for the convenience of its vehicles and repaired the gravel hopper, which had been damaged by fire. Its claim for reimbursement from plaintiff for these items precipitated the .controversy which ended in the instant litigation, when it attempted to offset these costs against accrued rental. Two days before the suit for the rental was commenced, the secretary of plaintiff corporation had a conversation with the president of defendant corporation, who testified: “A. He said unless we paid immediately, that he would either sue us or ask us to vacate the property. ... I told him, ‘You have a provision in your lease that you can ask us to vacate, but why don’t you give us notice and we will vacate?’ Q. What did he say to that, if anything? A. Well, he said, ‘We are not going to ask you to vacate the property, you have leased, but we are going to ask you. to stop taking gravel from the adjoining property.’ ” The president of defendant corporation thereupon investigated the description in the lease and discovered for the first time that the sand and gravel had been extracted from the lands bargained for, but, in fact, actually outside of the description in the lease. Thereupon, defendant counterclaimed, in the instant action, for a rescission of the lease and for damages. At the commencement of the action, there was a considerable quantity of sand and gravel stock-piled on the prop [53] erty. It was stipulated by. the parties that it might be removed by defendant at specified royalties, which was done. The judgment herein awarded plaintiff a sum for rental and royalties; rescinded the lease; and allowed attorneys’ fees and costs to neither party. The plaintiff appeals. Appellant assigns the rescission of the lease as error. It is true respondent suffered no accrued monetary damage by reason of the wrong description in the lease, and that it took sand and gravel as if the description had been correct. However, after the conversation heretofore set out, the appellant did not offer to give respondent what it bargained for by securing for respondent the lease of Leo S. Ross to the land owned by him, and a lease of the Ross Construction Company to its land. Respondent’s right to a rescission of the lease is predicated upon the fact that for the balance of the term it will not have what it bargained for, and not on account of any past monetary loss. Appellant cannot relegate respondent to trespasses upon the Leo S. Ross and Ross Construction Company lands in order to get what it bargained for. They are not parties hereto, and the court has no power to adjudicate their rights or excuse future trespasses without them having had their day in court. Appellant contends that respondent is estopped from challenging its rights in the leased land upon the principle that a tenant cannot attack the title of the landlord. The tenant is not attacking the landlord’s title, it is attacking omissions from the lease which deprived it of what it bargained for. Appellant contends that the trial court erred in refusing to allow rental for the months subsequent to the commencement of the action during which time respondent remoyed the stored sand and gravel at the stipulated price. A statement of the facts of the contention is a sufficient answer to it. Appellant contends that the trial court erred in refusing to allow it attorney’s fees and costs, which the lease- pro [54] vided should go to the prevailing party. -Neither party prevailed and, hence, neither is entitled to them. We find no merit in appellant’s assignments of error directed to the findings of the trial court. They are supported by the record. The judgment is affirmed. Hamley, Finley, and Olson, JJ., concur.