Gibson v. Vetter

Opinion by Mr. Justice Fell, The error alleged is that the court discharged a rule granted to show cause why a judgment in ejectment entered by virtue of an agreement in a lease between the parties, and because of the refusal of the lessee to deliver possession at the end of the term, should not be opened and the defendant let into a defence. The lease is for two years from December 1, 1889, with an agreement that, in default of notice three months before the expiration of the term, it shall continue for the further period of two years. The rule to open judgment was granted upon an affidavit of the defendant averring that before the expiration of the first two years he entered into a new agreement with the plaintiff to lease the premises for a year beginning June 1, 1892, and that he is in possession under this nerv lease, and that his term does not expire until June 1, 1894. The issue of fact raised was whether the first lease had been abrogated by agreement of the parties. The case was heard on depositions, and we think properly decided. The burden was upon the lessee, who was seeking to set aside a written lease under which he went into possession, and to establish a parol lease which would change the term. Pie should not be permitted to go to a jury on this question unless he made out a case clear of reasonable doubt. Pie should be held to the same strictness of proof that would be required of the lessor if he were attempting to enforce a forfeiture for condition broken. His testimony did not come up to the standard. His occupation of the premises was entirely consistent with the written lease as to the amount of rent and times of payment, and no dispute arose until after the notice to quit had been given, and a transfer of the lease refused to the party to whom he had sold his business. The time of the alleged agreement was when he was already bound by the written lease for a further term of two years commencing December 1st. His whole story, while in line with his present interest, is entirely inconsistent with [29] liis past conduct. It is not corroborated in any important particular, and is met by a denial of the plaintiff that is clear, direct and unequivocal. The judgment is affirmed.